SABARINATH Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition is filed under Sec. 482 of the Code of Criminal Procedure ("the Code" for the sake of brevity) challenging the order dtd. 23/3/2023 in CMP No.961/2023 on the file of the Additional Sessions Judge-I, Thiruvananthapuram. By the order impugned, the learned Additional Sessions Judge allowed the application filed by the learned Public Prosecutor under Sec. 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act" for brevity) and allowed the detention of the accused for a further period of 180 days.

(2.) Sri. Santhosh, the learned counsel appearing for the petitioner, submitted that the order passed by the learned Additional Sessions Judge cannot be sustained under law. Relying on the law laid down by the Apex Court in Sanjay Dutt v State through the C.B.I. Bombay [(1994) 5 SCC 410 and Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat [2022 SCC Online SC 1290], it is submitted by the learned counsel that it was mandatory for the Court of Sessions to inform the accused as regards the filing of an application under Sec. 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 the application for extension submitted by the learned Public Prosecutor. According to the learned counsel, it is by now settled by the Apex Court that the accused is entitled to raise his objection with regard to the sustainability of the application filed and also that the application is not in terms of the statutory mandate. It is urged that in the instant case, it is borne out from the order dtd. 23/3/2023 passed by the learned Additional Sessions Judge that the application for extension was filed on 22/3/2023, which incidentally is the 176th day of remand. It is further submitted that all that is evident from the order is that the request of the Public Prosecutor for extension was informed to the accused through the Jail Superintendent and nothing more. There is no material to suggest that the accused was actually informed of the filing of the application and he was granted an opportunity to furnish a formal objection. Expatiating further, the learned counsel relied on the observation of a Full Bench of the Calcutta High Court in Subhas Yadav v State of West Bengal 2023 KLT Online 1409( Jalpaiguri), and it is urged that the request for extension of the period of detention must be on the basis of the report of the Public Prosecutor which must record the progress of the investigation and spell out specific reasons to justify further detention beyond 180 days. This requirement has not been complied with, contends the learned counsel.

(3.) The learned Public Prosecutor controverted the contentions advanced by the learned counsel appearing for the petitioner with equal vehemence. It is submitted by the learned Public Prosecutor by referring to the order itself that the information as to the filing of the application by the Public Prosecutor was made known to the accused through the jail superintendent. Referring to the principles of law in Jigar (supra), it is submitted that the accused is not entitled to a copy of the application for extension. All that the Apex Court had laid down is the fact that an application for extension filed by the Public Prosecutor has to be made known to the accused and nothing more. In the instant case, the said mandate has been complied with, contends the learned Public Prosecutor. It is further submitted that the presence of the accused was virtually procured by the learned Additional Sessions Judge on the date that the order was passed. According to the learned Public Prosecutor, in that view of the matter, the accused cannot claim that any prejudice has been caused to him.