Case title:
Sabarinath vs State Of Kerala
Date of Order:
2 June 2023
Bench:
Mr. Justice Raja Vijayaraghavan V
Parties:
Petitioner – Sabarinath
Respondent- State Of Kerala
SUBJECT
The Narcotic Drugs and Psychotropic Substances Act of 1985 is an act of the Indian Parliament designed to combat drug abuse and illegal trafficking in narcotic drugs and psychotropic substances. The act defines various offenses related to drug abuse and lays down penalties for them. Under the act, it is an offense to produce, manufacture, cultivate, possess, sell, purchase, transport, store, and consume narcotic drugs and psychotropic substances. The act also prohibits financing, promoting, or abetting illegal activity related to drug abuse.
IMPORTANT PROVISIONS
Narcotic Drugs and Psychotropic Substances Act, 1985
- Section 36A(4)
OVERVIEW
- The accused was charged under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
- The application filed by the learned Public Prosecutor was allowed by the learned Additional Sessions Judge Thiruvananthapuram, and the accused was to be detained for a further period of 180 days.
- Aggrieved by this decision, the petitioner approached the Kerala High Court through this petition filed under section 482 of the Code of Criminal Procedure.
ISSUE RAISED
- What are the legal consequences that may result from the failure of the learned Additional Sessions Judge to act in accordance with the provisions of Section 36A(4) of the NDPS Act?
- ARGUMENTS ADVANCED BY THE PETITIONER
- Learned counsel Sri. Santhosh represented the appellant in this case.
- The counsel urged that the order passed by the Sessions Judge was not maintainable
- Reliance was placed on the cases, 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] to point out that it was a mandate for the Court of Sessions to inform the accused concerning the filing of an application under Section 36A(4) of the NDPS Act.
- The counsel submitted that there is no material in this case that suggests that the accused was informed of the filing of the application and was given an opportunity to make a formal objection.
- The case of Subhas Yadav v State of West Bengal [2023 KLT Online 1409( Jalpaiguri)] was cited to contend that the requirements of the public prosecutor's report to record the progress of the investigation and reasons justifying the detention beyond 180 days have not been followed.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The learned Public Prosecutor contended that in Jigar (supra), the Apex Court had only laid down that the Public Prosecutor's application for extension must be conveyed to the accused. However, this doesn’t make the accused entitled to a copy of the application.
- It was further submitted that the mandates provided under the NDPS Act were complied with. Therefore, the accused cannot claim that any prejudice has been caused to him.
JUDGEMENT ANALYSIS
- The Kerala High Court allowed the petition and enlarged the petitioner on default bail under subsection (2) of Section 167 of the Cr.P.C.
- The court ruled that it is mandatory to produce the accused at the time when the Court considers the application for extension, either physically or virtually, and the accused must be informed that the question of extension of the investigation period is being considered.
- The case of Hitendra Vishnu Thakur and Others V State of Maharashtra and Others [(1994) 2 SCC 602] was cited to hold that the legislative intent of the provision is to complete investigations swiftly and not to allow an accused to be kept in continued detention during an unnecessarily prolonged investigation at the whims of the police.
- The bench observed that the Public Prosecutor must provide a report mentioning the progress of the investigation. It must also disclose justification for keeping the accused in further custody. If such a report is not filed or accepted, the accused will be entitled to bail.
- It was viewed that the effect of sub-section (4) of Section 36-A, NDPS Act is to complete the investigation of certain offenses under the NDPS Act within 180 days instead of 90 days. Hence the benefit of an additional time limit is given for investigating serious categories of offense.
CONCLUSION
Article 22 of the Indian Constitution is a fundamental right that protects people who are arrested or detained. It outlines the rights that a person has when they are arrested or detained and the procedures that must be followed by the authorities. Although these rights are guaranteed to all accused, instances such as prolonged investigations can impose major dilemmas and frustration on the accused as they’re kept in continued detention unnecessarily. Kerala High Court in the present case interpreted Section 36A(4) of the NDPS Act and encapsulated the law. The court held that the accused has the right to be informed regarding the application for an extension of time and to raise objections to the application. It was also held that the courts must ensure fair and reasonable procedures are followed while considering applications for extension.
