NDPS Act | Mere Virtual Presence Of Accused Not Relevant If He's Not Informed Of Prosecution's Plea For Extension Of Detention: Kerala High Court

The Kerala High Court recently held that the decision of the Additional Sessions Judge in a NDPS case, allowing an application for extension of detention and the period of investigation is illegal on account of the failure of the Court to inform the accused as regards the filing of the application and of his right to object to the same. 

The Court arrived at the above decision while considering a petition against order allowing Public Prosecutor's application under Section 36A(4) NDPS Act, for the further detention of the accused for a period of 180 days. 

Justice Raja Vijayaraghavan V. observed that the failure of the Court to give oral notice would vitiate the entire proceedings. 

"The mere fact that the presence of the accused was secured virtually will not serve any purpose as the accused was not made aware of the filing of the application and there are no materials to suggest that the accused was granted an opportunity to formally raise his objections to the application for extension of detention. In that view of the matter, the impugned order cannot be sustained under law," the Court observed. 

Advocates M.J. Santhosh and Arun Antony appearing on behalf of the petitioner submitted that as per the decisions of the Apex Court in Sanjay Dutt v State (1991), and Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat (2022), it was mandatory for the Sessions Court to inform the accused as regards the filing of an application under Section 36A(4) of the NDPS Act for extension of period and also to insist for the presence of the accused at the time when the Court considers such application.

The counsels contended that as per the order of the Additional Sessions Judge, all that was evident was that the request of the Public Prosecutor for extension was informed to the accused through the Jail Superintendent. It was thereby added that there was nothing to suggest that the accused was actually informed of the filing of the application and that he was granted an opportunity to furnish a formal objection. 

Senior Public Prosecutor Vipin Narayan on the other hand, argued that the information as to the filing of the application by the Public Prosecutor was made known to the accused through the jail superintendent. It was added that the presence of the accused was virtually procured by the Additional Sessions Judge on the date the order was passed, and hence the accused could not claim any prejudice. 

The Court observed that under Section 36A(4) of the NDPS Act, additional time for investigation is granted in respect of more serious category of offences. 

Taking due note of the principles laid down by the Apex Court in Jigar (supra), for the presence of the accused and in informing the filing of the application for extension of detention, the Court said,

"It is not borne out from the impugned order that the accused was actually informed about the filing of the application by the Public Prosecutor on 22.3.2023. All that is stated is that the accused was informed through the Jail Superintendent. Though it is stated in the order that the accused was virtually present on the next day, it is not discernible whether the accused was actually informed about the application for extension and he was asked whether he had any objection to offer."

"The learned Additional Sessions Judge, in his report, has stated that there are no records to substantiate whether notice of the report was directly served on the accused or their counsel. The application, which was filed on the 176th day, was taken up on the next day itself, and orders were passed by the learned Additional Sessions Judge. There was no tearing hurry to dispose of the matter as few more days were left to reach the cutoff date of 180 days. The order passed by the learned Additional Sessions Judge extending the period of investigation is rendered illegal on account of the failure of the Court to inform the accused as regards the filing of the application and also the failure to inform him of his right to object," the Court held, thereby finding the impugned order to be illegal. 

The petitioner was thus granted default bail on furnishing a bail bond of Rs.2,00,000/- with appropriate sureties as decided by the Additional Sessions Judge. 

Case Title: Sabarinathan v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 260 

Click Here To Read/Download The Order