THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY Crl.O.P.No.19560 of 2026 and Crl.M.P.No.12978 of 2026 Shashi Kumar .. Petitioner Versus State Rep. By The Inspector of Police, Pallikaranai – PEW, Chennai.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders reserved on : 22.07.2026
Orders pronounced on : 23.07.2026
CORAM :
THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.O.P.No.19560 of 2026 and Crl.M.P.No.12978 of 2026
Shashi Kumar .. Petitioner

Versus
State Rep. By
The Inspector of Police,
Pallikaranai – PEW, Chennai. .. Respondent
Prayer : Criminal Original Petition filed under Section 528 of BNSS, 2023, to set aside the docketed order in Crl.M.P.Sr.No.5432 of 2026, dated 15.07.2026, passed by the Principal Special Judge under NDPS Act and consequently transfer the enquiry in C.C.No.599 of 2024 from the learned II Additional Special Judge under NDPS Act, Chennai to the learned I Additional Special Judge under NDPS Act, Chennai for the interest of end of justice.
For Petitioner : Mr.K.M.Ramesh, Senior Counsel,
for Mr.M.G.Martin Manivannan
For Respondent : Mr.M.Mohamed Riyaz,
Government Advocate (Criminal Side)
ORDER
The prayer made in this Criminal Original Petition is to set aside
the docket order dated 15.07.2026 made in Crl.M.P.SR.No.5432 of 2026 passed by the learned Principal Special Judge under the N.D.P.S Act, Chennai, and consequently to transfer the case in C.C.No.599 of 2024 from the file of the learned II Additional Special Judge under the N.D.P.S Act, Chennai, to the file of the learned I Additional Special Judge under the N.D.P.S Act, Chennai.
2. The petitioner is arrayed as the third accused in the above C.C.No.599 of 2024. The prosecution’s case is that the petitioner, along with two other persons, was found in possession of 30 kgs of ganja. Accordingly, a case was registered in Crime No.54 of 2024, and after investigation, the Final Report was filed against all three accused for the alleged offences under Sections 8(c), 20(b)(ii)(C), 25 and 29(1) of the N.D.P.S. Act, 1985.
3. Accordingly, as per the procedure, the case was assigned to
the learned II Additional Special Judge under N.D.P.S Act, Chennai, for trial. It is stated that the trial was originally completed, and on 06.07.2026, the accused had completed the defence arguments. Due to the nonavailability of the Public Prosecutor arising from the change of Government, the case was adjourned to 09.07.2026 for the prosecution’s arguments. From 09.07.2026, the case was again adjourned to 14.07.2026. In the interim, due to a shuffle of the Presiding Officers as per seniority, the Presiding Officer, who was originally posted as the learned II Additional Special Judge under N.D.P.S Act, Chennai, and had heard the arguments of the learned Counsel for the accused, has now been moved to the I Additional Special Court under N.D.P.S Act, Chennai, and a new
Presiding Officer has been posted as the learned II Additional Special Judge.
4. In view thereof, since no Public Prosecutor is appointed in the II Additional Special Court and the Presiding Officer, who has now been moved to the I Additional Special Court, conducted most of the trial and heard the arguments on behalf of the learned Counsel for the accused, the petitioner moved Crl.M.P.No.12978 of 2026 to transfer the case from the II Additional Special Judge under the N.D.P.S Act, Chennai, to the file of the I Additional Special Judge under the N.D.P.S Act, Chennai. By the docket endorsement dated 15.07.2026, the learned Principal Special Judge returned the application on the ground that he does not have the jurisdiction to transfer the case from one Special Court to another and that only the High Court has jurisdiction to deal with the matter. Without the application being represented or any further order of rejection, the petitioner has straightaway come by the present Criminal Original Petition with the prayer as aforementioned.
5. Mr.K.M.Ramesh, learned Senior Counsel for the petitioner, and Mr.M.G.Martin Manivannan, learned Counsel for the petitioner, would submit that immediately after the new Presiding Officer took charge of the II Additional Special Court, the learned Judge passed an order on 17.07.2026 recording that no Special Public Prosecutor was appointed for the II Additional Special Court. However, when the matter came up again on the adjourned date on 20.07.2026, the learned Judge heard the Special Public Prosecutor, namely, one Dhanraj, who is appointed only for the Principal Special Court for N.D.P.S Act cases, Chennai, and also insisted that the learned Counsel for the accused argue on the same day. As a matter of fact, the junior Counsel for the accused Nos.1 and 2 made certain submissions, and thereafter, the Court, after recording the arguments and considering the memo filed by the third accused stating that the Criminal Original Petition was filed for transfer, noting that the Criminal Original Petition is yet to be numbered and that no stay order is produced, has posted the matter for judgment on 24.07.2026. Therefore, the learned Counsel would plead that, when the arguments of both the sides were not properly heard, the judgment that is going to be delivered on 24.07.2026 would be violative of the right to fair trial of the accused, and that, without hearing the arguments of the accused and without hearing the arguments of the duly appointed Public Prosecutor, the Trial Court cannot dispose of the case.
6. It is further contended that the Trial Court, on 20.07.2026,
heard one Dhanraj, who was appointed as the Special Public Prosecutor for the Principal Special Court. He does not even have ten years of experience, which is mandated under Section 24(8) of the Code of Criminal Procedure, and is also required under Section 18(8) of B.N.S.S.
7. Per contra, the learned Government Advocate (Criminal Side)
for the respondent would submit that this is a serious case in which the petitioner and the other accused were found in possession of 30 kgs of ganja. The petitioner cannot seek a transfer at their whim and fancy. At the argument stage, it may be noted that even the previous Judge did not hear the arguments of the Special Public Prosecutor. Now, as on
17.07.2026, the City Public Prosecutor enabled the Special Public
Prosecutor, namely T.Rajarathinam, appointed for the I Additional Special
Court, to conduct proceedings at the II Additional Special Court also. Therefore, the services of the Special Public Prosecutor are readily available, and the learned II Additional Special Judge should be permitted to proceed with the matter in accordance with law.
8. I have considered the rival submissions on both sides and
perused the material records of the case.
9. At the outset, the law relating to the appointment of the Special Public Prosecutors was elucidated by the Hon’ble Supreme Court of India in K.A.Anbazhagan Vs. State of Karnataka and Ors. (Criminal Appeal No.637 of 2015). It is essential to extract the relevant portion from paragraph No.26 of the said judgment, which reads as follows:-
“26. … Sub-section (8) of section 24 deals
with appointment of Special Public Prosecutor for any case or class of cases. A Public Prosecutor who is appointed in connection with a district his working sphere has to be restricted to the district unless he is specially engaged to appear before the higher court. A Special Public Prosecutor when he is appointed for any specific case and that too for any specific court, it is a restricted appointment….”
(Emphasis supplied)
10. In this regard, it is essential to extract Section 36C of the N.D.P.S Act, which reads as follows:
“36C. Application of Code to proceedings before a Special Court.—Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special
Court, shall be deemed to be a Public Prosecutor.”
11. In view thereof, the person conducting the prosecution
before the Special Court has to be termed a Special Public Prosecutor appointed under Section 24(8) of the Code of Criminal Procedure/Section 18(8) of the BNSS. As there is no other provision under the N.D.P.S Act regarding the appointment, and the provision of the Code of Criminal Procedure is expressly applied, on a combined reading of the N.D.P.S Act and the Code of Criminal Procedure, it would be clear that the person has to be appointed as per Section 24(8) of the Code of Criminal Procedure, i.e., an Advocate with 10 years of experience has to be appointed as the Special Public Prosecutor. As per the judgment of the Hon’ble Supreme Court of India in K.A.Anbazhagan’s case (stated supra), the appointment of the Special Public Prosecutor will be restricted to the class of cases or the particular Court as the appointment reads. In this case, the copy of the Government Order in G.O.(D).No.937 Home (Courts-VIA) Department, dated 07.07.2026, with reference to Mr. T. Rajarathinam, reads as follows:-
Sl. No. Post of Law Officer Name of The Court Name of Advocate Thiru/Tmt/Selvi
12. Special Public Prosecutor NDPS I-Additional Special
Court NDPS Cases, Chennai T.Rajarathinam Ms.No.677/2002
12. Thus, it can be seen that the appointment has been made
specifically for the I Additional Special Court, N.D.P.S Act Cases, Chennai. When there is a vacancy for the II Additional Special Court for
N.D.P.S Act Cases also, there is nothing wrong in putting the Special Public Prosecutor in charge or giving additional charge. However, that order has to be made by the appropriate Government, and the City Public Prosecutor, who is appointed for the Chennai district, cannot extend the scope of the Government Order or authorise the Special Public Prosecutor appointed to a particular Court to act as the Special Public Prosecutor for another Court or for other purposes.
13. Be that as it may, when the Presiding Officer of the II Additional Special Court is transferred to the I Additional Special Court, it is not necessary that the cases he has heard should also be transferred to that Court. In our criminal justice system, the accused has no right to choose the Presiding Officer. The post of the Presiding Officer of the II Additional Special Court does not remain vacant. When the new officer is appointed, he will naturally continue the case from the stage at which it was left. After all, the matter is pending at the arguments stage. Merely because the new Judge was insistent upon the immediate conclusion of proceedings, that, by itself, should not be termed as bias. Any learned Judge is required to be concerned about the quick and expeditious disposal of the case. But, at the same time, the judgment now proposed to be pronounced on 24.07.2026 would be fragile, as it is susceptible to attack for not hearing the arguments of the accused as well as the arguments to be made by the newly appointed Public Prosecutor.
14. Therefore, in the best interests of the case and a fair trial, this
Criminal Original Petition is disposed of on the following terms:-
(i) The docket order dated 20.07.2026, passed by the learned IIAdditional Special Judge for N.D.P.S Act Cases, Chennai, recording that the arguments were heard on behalf of the prosecution and the accused
Nos.1 and 2, and posting the matter for judgment, shall stand set aside;
(ii) The Additional Chief Secretary to Government, Home (Courts-VIA) Department, either by himself or through any duly empowered officer, is directed to forthwith pass orders by granting additional charge to the learned Special Public Prosecutor appointed in the I Additional Special Court under N.D.P.S Act Cases, Chennai to be incharge of the II Additional Special Court under N.D.P.S Act Cases, Chennai until the incumbent is appointed.
(iii) He can also take steps to appoint a regular Special Public
Prosecutor for the II Additional Special Court at the earliest.
(iv) Upon the due in-charge/additional charge order being made,
the argument shall once again be opened by the Public Prosecutor, and due opportunity shall be granted to the learned Counsel for all the three accused, and thereafter, the matter can be posted for judgment.
(v) Apart from the present case, yet another issue was brought to
the notice of this Court regarding the appointment of the Special Public Prosecutor for the Principal Special Court, N.D.P.S. Cases. For the Additional Public Prosecutors, a minimum of 7 years of practice is necessary, whereas, for the Special Public Prosecutors to be appointed in the Special Courts, ten years of practice is essential as per Section 24(8) of the Code of Criminal Procedure. It is brought to the notice of this Court that the enrollment number of the Special Public Prosecutor is 2643/2017. However, the matter is not now directly in issue before this Court, and neither the said appointee has been heard by this Court. Therefore, no opinion is expressed by this Court, and it will be open for the petitioner herein or any member of the Bar to make a representation to the Additional Chief Secretary to the Government Home (Courts-VIA) Department, the Additional Secretary, or the authorities themselves to look into the issue and take an appropriate decision as per law. This observation is made in the best interests of the prosecution of the cases before the Principal Special Court.
(vi) Consequently, the connected miscellaneous petition is
closed.
15. At the time of pronouncement of the order, it is now
mentioned before this Court that after the evidence was over, not even questioning under Section 313 of Cr.P.C., was made and the opportunity for letting in defence evidence was also not given. Therefore, when the matter is being taken, it will be open for the Trial Court to look into the record and if the questioning under Section 313 of Cr.P.C., is not done, the same can be done and the opportunity to let in defence witnesses can be given, if it is not already done.
23.07.2026 Neutral Citation : yes grs
To
1. The Principal Special Judge under N.D.P.S Act, Chennai.
2. The I Additional Special Judge under N.D.P.S Act, Chennai.
3. The II Additional Special Judge under N.D.P.S Act, Chennai.
4. The Additonal Chief Secretary to Government, Home (Courts-VIA) Department, Chennai.
5. The Inspector of Police,
Pallikaranai – PEW, Chennai.
6. The Public Prosecutor,
High Court of Madras.
D.BHARATHA CHAKRAVARTHY, J.
grs
Crl.O.P.No.19560 of 2026 and Crl.M.P.No.12978 of 2026
23.07.2026