Mere Virtual Presence Of Accused Not Relevant If He Is Not Informed Of Prosecution's Plea For Extension Of Detention- Kerala HC In NDPS Case

A Kerala High Court Bench of Justice Raja Vijayaraghavan V has held that the decision passed by the Additional Sessions Judge allowing an application for extension of detention and period of investigation, in an NDPS case, is illegal. This was held on account of the failure of the Court to inform the accused regarding the filing of the application, as well as his right to object to the same.

In that context, it was said that "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".

Counsel MJ Santhosh and Counsel Arun Antony appeared for the petitioner. Senior Public Prosecutor Vipin Narayan appeared for the State.

In this case, the Court was considering a petition against an order allowing the Public Prosecutor's application under Section 36A(4) NDPS Act for the further detention of the accused for a period of 180 days.

The Court perused a catena of judgments including Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat. Subsequently, it observed that "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".

In furtherance of the same, the Court observed that "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".

In light of the same, the Court observed that the failure of the Court to give oral notice vitiated the entire proceedings. The Court allowed the petition and ordered that the petitioner shall be enlarged on default bail.

Cause Title: Sabarinath v. State of Kerala

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