In a recent ruling, the Kerala High Court held that the decision of the Additional Sessions Judge in an NDPS case, allowing an application for an extension of detention and investigation period, was deemed illegal due to the Court's failure to inform the accused about the application and their right to object.
Justice Raja Vijayaraghavan V. emphasized that the Court's failure to provide oral notice would invalidate the entire proceedings. The virtual presence of the accused alone does not suffice, as they were unaware of the application's filing and were not given a chance to raise objections formally, the court noted
Brief Facts:
The present petition was filed in the High Court challenging the order of the Public Prosecutor under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), extending the accused's detention for an additional 180 days.
Contentions of the Appellant:
Mr. Santhosh, the petitioner's counsel, argued that the order passed by the Additional Sessions Judge is legally unsustainable. Referring to relevant Supreme Court cases, Mr. Santhosh emphasized that it was mandatory for the Court of Sessions to inform the accused about the application filed under Section 36A(4) of the NDPS Act and ensure the accused's presence during its consideration. The counsel also asserted that the accused has the right to raise objections regarding the application's validity and its compliance with statutory requirements. In the present case, the counsel pointed out that the order dated 23.3.2023 did not indicate that the accused was informed of the application or given an opportunity to present formal objections. Furthermore, Mr. Santhosh cited a Full Bench ruling of the Calcutta High Court of Subhas Yadav v State of West Bengal, stating that the request for extension of detention must be supported by a report from the Public Prosecutor, detailing the progress of the investigation and providing specific justifications for exceeding the 180-day limit. The counsel argued that this requirement was not met in the present case.
Contentions of the Respondent:
It was asserted by the Public Prosecutor that the accused was informed of the application filed by the Public Prosecutor through the jail superintendent, as evident from the order itself. Referring to the legal principles in the Jigar case, it is stated that the accused is not entitled to a copy of the extension application, and the Supreme Court only requires the accused to be informed of its filing. In the present case, it was contended that this requirement was fulfilled. The Public Prosecutor further argued that the accused was present when the order was passed, implying that no prejudice was caused to the accused.
Observations by the Court:
The Court recognized that Section 36A(4) of the NDPS Act allows for additional time for investigation in more serious offenses. Referring to the Supreme Court's decision in the Jigar case, the Court emphasized the importance of informing the accused about the filing of the extension application and ensuring their presence during the proceedings.
However, the Court noted that the impugned order did not clearly indicate whether the accused was actually informed about the application filed by the Public Prosecutor on 22.3.2023. Although the order mentioned that the accused was virtually present the next day, it remained unclear whether the accused was informed about the extension application and given an opportunity to raise any objections.
“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. I find that after allowing the application for extension of detention, the application for statutory bail filed by the accused was taken up and the same was dismissed by order dated 31.3.2023 in Crl.M.P.No. 1039 of 2023.”
The Court found the order passed by the learned Additional Sessions Judge to be illegal based on the report stating that there were no records to confirm whether the accused or their counsel were directly served notice of the report. The application was filed on the 176th day and taken up the following day, even though there was still time before reaching the 180-day cutoff. The Court held that the failure to inform the accused about the application and their right to object rendered the order invalid. Consequently, the petitioner was granted default bail upon furnishing a bail bond of Rs.2,00,000/- along with appropriate sureties, as determined by the Additional Sessions Judge.
The decision of the Court:
The petition was allowed and a default bail was enlarged.
Case Title: Sabarinathan v. State of Kerala
Coram: Hon’ble Mr. Justice Raja Vijayaraghavan V.
Case No.: Crl. Miscellaneous No. 3242 of 2023
Advocate for the Appellant: Advocates M.J.Santhosh And Arun Antony
Advocate for the Respondent: Sri Vipin Narayan, SR. PP
Read Order @LatestLaw.com
Picture Source :