S.36A NDPS Act | Presence Of Accused Mandatory While Hearing Extension Application, Mere Notice Not Sufficient: Kerala High Court

The Kerala High Court recently held that the accused must be produced either physically or virtually while considering the application for extension of remand filed under Section 36A(4) of the NDPS Act and that neglect of the same goes beyond a simple procedural violation. 

Justice Raja Vijayaraghavan V pointed out that failure to do so would be equivalent to legally stripping the accused of their right to claim default bail.

"...when the application for the period of detention is extended for a further period based on an application filed by the learned Public Prosecutor under Section 36A(4), it legally strips the accused of their indefeasible right to claim default bail. This is because the extension of time curtails the right of the accused to default bail, a right intimately linked with the fundamental freedoms safeguarded under Article 21 of the Constitution."

Failing to ensure the presence of the accused, either physically or virtually, in the court and not informing him about the application filed by the Public Prosecutor for the time extension goes beyond a simple procedural violation. It is a significant illegality that infringes upon the rights of the accused under Article 21, Court added.

The petitioner was accused by the Excise Range Office of transporting 66.85 kilograms of ganja and he was arrested and remanded to judicial custody in November 2022. On 9.5.2023, the petitioner applied for regular bail, but no orders were passed on it.

On 12.5.2023, the Public Prosecutor filed an application seeking an extension of the petitioner's detention for three months beyond the 180th day from the date of initial remand, which fell on 23.05.2023. Meanwhile, the petitioner filed an oral application for statutory bail on 23.05.2023 and sought statutory bail on the same day. However, no orders were passed on either of these applications.

On 24.5.2023, the Sessions Judge allowed the application filed under Section 36A(4) of the NDPS Act and allowed the detention of the accused for another 90 days. Subsequently, on 26.05.2023, the application for regular bail was rejected, and on 2.06.2023, the application for statutory bail was also rejected.

Challenging these decisions, the petitioner approached the High Court. 

Advocates V. Vinay, M.S Aneer and Nissam Nazzar appearing for the petitioner argued that it is mandatory for the Sessions Court to inform the accused about the filing of an application under Section 36A(4) and to ensure the accused's presence while considering the application for extension. It was pointed out that except for giving notice of the application, the court did not secure the presence of the accused either virtually or physically. 

The Court referred to Section 167 of CrPC and Jigar alias Jimmy Pravinchandra Adatiya v. State of Gujarat, to emphasise that the accused must be produced while considering the application for extension. In this case, though the accused had been informed about the filing of the application for extension, his presence was admittedly not procured.

At this juncture, Public Prosecutor M. P Prasanth submitted that the presence of the accused is not to be insisted on when notice has been issued to him informing him about the filing of the application for the extension of detention.

The Court disagreed with this argument and maintained that if the court were to extend the detention of the accused, it was bound to ensure the presence of the accused either physically or virtually. It was also held that failing to ensure the same and not informing him about the application filed for extension 'goes beyond a simple procedural violation'.

It is a significant illegality that infringes upon the rights of the accused under Article 21 and violates the mandate of Section 167(2)(b) of CrPC, the Judge added. 

The petitioner had also alleged that the Sessions Judge was bound to consider the application for default bail along with the application for extension of time and pass orders together. However, in this case, the application for default bail was filed on 23.5.2023 and rejected only on 2.6.2023, while the application for extension was allowed on 24.5.2023.

Justice Vijayaraghavan noted that Section 167 was silent on the extension of the period of detention of an accused in custody beyond the specified period. Nonetheless, acknowledging that in certain situations, investigating agencies require more time to investigate and file their charge sheets, provisions were made under special statutes such as the NDPS Act.  

The Court noted that Section 36A of the NDPS Act prescribes a modified application of CrPC by requiring the investigation into certain offences to be completed within 180 days instead of 90 days as provided under Section 167 CrPC, particularly for more serious categories of offences. 

However, as per M. Ravindran v. Directorate of Revenue Intelligence, since the application for extension was filed before the application for statutory bail, the Sessions Judge was bound to consider both applications simultaneously. 

Furthermore, since the extension application was allowed only on the 182nd day, whereas the statutory bail application was filed and was pending on the 181st day, going by the law in Judgebir Singh and Ors. v. National Investigation Agency, the Sessions Judge had no option but to allow the application for the grant of statutory bail. On that ground as well, the petitioner was entitled to succeed.

As such, the petition was allowed and the petitioner was enlarged on default bail.

Case Title: Justin T.J v. State of Kerala

Citation: 2022 LiveLaw (Ker) 309

Click Here To Read/Download The Order