TaxTMI 
TaxTMI 
2015 (1) TMI 1029
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....ubstance Act, 1985 (in short 'NDPS Act'). During the course of hearing the learned counsel for the accused pointed out that the accused is in judicial custody since last more than 5 (five) years. When it came to light of the Court that the case is pending for disposal since last one decade the Court became inquisitive to ascertain as to what is the root cause for long period taken in the trial of NDPS cases. Hence, the aforesaid legal question was framed to decide and direct the trial Courts to adopt such procedure which would provide speedy trial of the cases and promote the cause of justice. 3. Heard Smt. S.K. Nargis, learned counsel for the accused. Also heard Shri D. Chakraborty, learned Standing counsel for the DRI. Keeping in mind the wide ramification of this judgment the State of Assam was also impleaded as a party, besides appointing Sri N. Dutta, learned Sr. counsel as Amicus Curiae to address the Court only on the legal issue. The State was represented by Z. Kamar, learned Public Prosecutor, Assam and Shri K. Munir, learned Addl. PP. 4. Before embarking upon to answer the legal issue I would first dispose of the prayer for bail. According to the learned c....
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....under the Constitution and even if priority is accorded to the cases of foreigners it may have the effect of foreigners being permitted to jump the queue and slide down cases of citizens even if their cases are old and pending since long. Counsel immediately realised that such a distinction if drawn would result in cases of Indian citizens being further delayed at the behest of foreigners, a procedure which may not be consistent with law. He, therefore, rightly sought permission to amend the cause-title and prayer clauses of the petition which was permitted. In substance the petitioner now prays that all undertrials who are in jail for the commission of any offence or offences under the Act for a period exceeding two years on account of the delay in the disposal of cases lodged against them should be forthwith released from jail declaring their further detention to be illegal and void and pending decision of this Court on the said larger issue, they should in any case be released on bail. It is indeed true and that is obvious from the plain language of Section 36(1) of the Act, that the legislature contemplated the creation of Special Courts to speed up the trial of those prosecute....
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.... Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak, release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 woul....
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....) Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount". 6. I have already noted earlier that the accused is in custody since last more than five years and there is no possibility of immediate conclusion of the trial. Hence, I hold that if the accused is directed to be detained in custody it would amount to abuse of the power of Court besides violation of fundamental right of speedy trial of the accused. Hence, the bail prayer is accepted solely on the ground of long period of custody of the accused and long period of pendency of the case and not on any other ground. 7. For the foregoing reasons, the accused is allowed to go on bail by executing his personal bond with two sureties of one lac each. It is further made clear that the sureties should be local Government servants in the rank of Class II officers to the satisfaction of the learned Sessions Judge,....
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....ole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate : Provided that in cases which are triable by the Special Court where such Magistrate considers - (i) when such person is forwarded to him as aforesaid; or (ii) upon or at any time before the expiry of the period of detention authorised by him; that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction; (c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section; (d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made ....
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....aw shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the lime being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5. Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, specialty empowered in this behalf under sub-section (2), may take cognizance of any offence - (a) Upon receiving a complaint of facts which constitute such offence : (b) Upon it police report of such facts; (c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) *****   &....
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....st class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall he asked whether he pleads guilty of the offence charged or claims to be tried. 229. *****      *****      ***** 230. *****      *****      ***** 231. Evidence for prosecution. (1) On the date so fixed, the Judge shall proceed to take all such evidence as may he produced in support of the prosecution. (2) The Judge may, in this discretion, permit the cross-examination of a....
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....te is competent to try and which, in opinion could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to he tried. 241 *****      *****      ***** 242. Evidence for prosecution. (1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under Section 241 Magistrate shall fix a date for the examination of witnesses. (2) The Magistrate may on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. (3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may he produced in support of the prosecution : Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or....
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....ons to be recorded in writing so thinks fit, forthwith whether he wishes to cross-examine any, and if so which of the witnesses for the prosecution whose evidence has been taken. (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (6) The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination (if any), they shall also be discharged. 247. Evidence for defence. *****     *****     *****" 10. Coming to the legal issue of the trial procedure Shri N. Dutta, learned amicus curiae referred to various provisions of the NDPS Act and CrPC. Referring to the judgment of the Apex Court rendered in the case of Rajkumar Karawal v. Union of India [AIR 1991 SC 45 = (1990) 2 SCC 409], the learned amicus curiae argued that if there is any inconsistency between the provisions of the NDPS Act and the CrPC the provisions laid down in the Act would prevail. Referring to Section 36A(1) and (d) of the Act the learn....
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....the definition of 'Magistrate' includes Sessions Judge for invoking of the powers under CrPC. The learned PP also argued that since NDPS Act is a special law the learned Sessions Judges are empowered to take cognizance of the complaints directly and proceed to hold the trial even without commitment of the case by the Magistrates. In support of this submission the learned PP relied upon a Division Bench judgment of Gauhati High Court, rendered in the case of Sankar Singh v. State of Assam, reported in 1994 Cri LJ 213. In the said case it has been held that the provisions of the CrPC are applicable only to the extent permitted under the Act and has specifically held that there is no scope for commitment of NDPS cases by the Judicial Magistrates. 13. The learned PP also referred to a judgment from the Rajasthan High Court rendered in the case of Sarvan Kumar v. State of Rajasthan, (2012 Cri LJ 1480). In this case also His Lordship has held that the complaints by DRI and Customs department can be directly tiled in the Sessions Court and it cannot be given a colour of final report by police under Section 173 of the CrPC. Referring to the judgment of the Apex Court rendered in th....
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....a Special Court and for the purposes of the said provisions, the Special Court shall he 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." (10) A plain reading of the above provision makes it clear that the provisions of the Code of Criminal Procedure, 1973, apply to the proceedings before a Special Court and for the purposes of the said provisions the Special Court has to be deemed to be a Court of Sessions. The above provision, therefore, leaves no scope for any doubt that a Special Court constituted under NDPS Act for the purpose of trying offences under the Act would be a Court of Sessions. In this regard it is important to bear in mind that status of a Sessions Court has been conferred upon the Special Court by a deeming fiction for empowering such special Court to follow the provisions of the Code at the time of trial of the case. If such is the object behind conferring the status of session Court upon the special Court there is no reason as to why a procedure prescribed for trial of warrant cases by Magistrate should be applicable to the Special Court. In Amratlul Devdanbhai Soni....
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....at sprout more disincentives for a witness to take the stand are established. Often, conclusion of examination alone, keeping aside cross-examination of witnesses, takes more than a day. Yet, they are not examined on consecutive days, but on different dates spread out over months. This practice serves as a huge inconvenience to a witness since he is repeatedly required to incur expenditure on travel and logistics for appearance in hearings over a significant period of time. Besides, it often causes unnecessary repetition in terms of questioning and answering, and also places greater reliance on one's ever-fading memory, than necessary. All these factors together cause lengthier examinations that compound the duration of trials. 11. It would be prudent to return to the erstwhile method of holding "sessions trials" i.e. conducting examination and cross-examination of a witness on consecutive days over a block period of three to four days. This permits a witness to take the stand after making one-time arrangements for travel and accommodation, after which, he is liberated from his civil duties qua a particular case. Therefore, this Court directs the Courts concerned to adopt t....
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.... the purpose of proving the truth of the facts under certain circumstances. Even otherwise there are scores of judgments from the Hon'ble Supreme Court and the High Courts that the statements of the accused persons recorded under Section 67 of the Act are insulated from the interdict of Sections 25 and 26 of the Evidence Act. I have already noted earlier that the law also provides taking cognizance of the complaints directly by the Sessions courts/Special Courts despite there being restrictions under Section 193 of the CrPC. In this way, all the provisions of the Act propagate the theory of speedy trial of the narcotic offences under the Act. Hence, I hold that the hurdles in between should also be removed by this Court. 19. The Gauhati High Court, in the case of Arun Kanungo has already approved the procedure of Sessions trial cases to try the offences under NDPS Act, provided the offences are triable by the sessions Courts or the special Courts. The view taken by the Gauhati High Court now finds support from the Apex Court. In the case of Thana Singh their Lordships have approved trial of cases, involving narcotic drugs, as 'sessions trial' and preferably on consecutive d....