Judgment : 1. This appeal has been filed by the accused in Sessions Case No.126 of 1988 on the file of the VIII Additional Sessions Judge of the Court of Session Madras, challenging his conviction under Secs.8 and 21 read with Sec.29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentence of imprisonment for a period of ten years and a fine of Rs.1,00,000, in default to undergo imprisonment for a further period of three years. 2. The gravamen of the charge against the appellant was’ that on 7.7.1987 at about 3 p.m., he along with the co-accused S.Anton, who has since absconded, was in possession of 630 gms. of heroin powder valued at Rs.45,000 in Room No.23 in the II Floor of Hotel Select, 170,Linghi Chetty Street,Madras-1. 3. Since the co-accused absconded, the case was split up and the appellant alone was tried. P.W.1 was the Inspector of Police attached to the Narcotic Control Bureau who inspected the above premises along with P.W.5 and found the appellant and the co-accused in possession of the drug. P.W.2 was the Manager of the Hotel, P.W.3 was the Assistant in the Court of the Additional Chief Metropolitan Magistrate (Economic Offences), Egmore, Madras, which had sent the sample for chemical analysis, P.W,3 was the Analyst who analysed the sample and P.W.5 was the Investigating Officer. Ex.P-10 is the report of the Chemical Examiner to the effect that the sample was herein powder. 4. During trial, P. WS.1 to 5 were examined, Exs.P-1 to P-10 were marked and M.Os.1 to 7 were produced. The appellant denied complicity with the crime. The trial Court accepted the prosecution case and convicted and sentenced the appellant as stated above, against which the present appeal has been filed. 5. 4. During trial, P. WS.1 to 5 were examined, Exs.P-1 to P-10 were marked and M.Os.1 to 7 were produced. The appellant denied complicity with the crime. The trial Court accepted the prosecution case and convicted and sentenced the appellant as stated above, against which the present appeal has been filed. 5. Thiru G.Krishnamurthy, learned counsellor the appellant, challenged the conviction on the ground that the appellant had been denied a fair’ trial and no opportunity had been given to him to defend his case, the case having been advanced without notice to the appellant or his counsel from 27.7.1989 to 12.7.1989, and since the counsel was unwell and not prepared for the advanced trial and an adjournment having been refused, the counsel was forced to withdraw his memo of appearance and the court had rushed through the trial without cross examination of any of the prosecution, witness resulting in grave injustice to the appellant, who was a stranger from Uttar Pradesh, not knowing either English or Tamil. Learned counsel therefore submitted that the interests of justice and fair play, at least a retrial should be ordered, setting aside the conviction and sentence. 6. Learned Public Prosecutor did not dispute the facts regarding the advancement of the case without notice to either the appellant or his counsel, but contended that in the event of a retrial being ordered, the appellant would abscond and flee to Uttar Pradesh and it would be impossible to secure him and that the bail granted to him, should be cancelled and the trial court could be directed to conclude the trial without any delay. 7. The short question that arises for consideration is whether the facts put forward by the learned counsel for the appellant would justify setting aside the conviction and sentence to order a retrial on the ground of the appellant having been denied a fair trial. 8. I shall first state the relevant facts. After the case had been made over to the VIII Additional Sessions Judge, Madras, charges have been framed on 19.6.1989. The appellant had pleaded not guilty and the case was posted to 10.7.1989 for trial. On 10.7.1989, the prosecution has filed two memos; one to the effect that P.Ws.2 and 3 are not immediately available to be produced before the Court for giving evidence and hence the Court might adjourn the case. The appellant had pleaded not guilty and the case was posted to 10.7.1989 for trial. On 10.7.1989, the prosecution has filed two memos; one to the effect that P.Ws.2 and 3 are not immediately available to be produced before the Court for giving evidence and hence the Court might adjourn the case. On this memo, the court had adjourned the case to 27.7.1989 with a direction to issue subpoenas to witnesses and the remand to be extended for the accused till then. It is stated that after the case was adjourned, the appellant was taken away and Thiru G.Krishnamurthy, the learned counsel who had appeared for the appellant, had also left the court. At 4.45 p.m., another memo has been filed by the counsel for the complainant in the following terms: “It is submitted that the detention period of Krishnanlal Kathari comes to an end on 16.7.1989 and he will be released on 17.7.1989. It is therefore prayed that this Hon’ble Court may be pleased to adjourn the hearing of the case to 12.7.1989 and cause Production of the accused from Central Prison, Madras. Dated at Madras this the 10th day of July, 1989.” In the same memo, it is also endorsed by the counsel for the Public Prosecutor, Central Government, as follows: “Message received and filed at 4.45 p.m. on 10.7.1989.” No notice of this memo has been given to the counsel for the appellant. Nor had the appellant been informed about it. The Court has noted in the docket sheet as follows: “Taken up again in view of memo filed at 4.45 p.m. by the Central Government D.P. At request of C.P.P., hearing advanced to 12.7.1989. Inform Central Prison for Production of accused by 11.12.1989.” The docket also shows that on 11.7.1989,the Intelligence Officer, Narcotic Control Bureau, Madras, has received Subpoenas for the five witnesses. 9. On 12.7.1989, the docket shows, that the accused has been produced and at request of both counsel, case was posted for trial to 13.7.1989 and remand was extended till then. 10. 9. On 12.7.1989, the docket shows, that the accused has been produced and at request of both counsel, case was posted for trial to 13.7.1989 and remand was extended till then. 10. It is the case of the learned counsel for the appellant that on 12.7.1989, though no notice had been given to him about the advancement of the case, he happened to be present in the court for some other case and heard this case being called and found that this case had been advanced; he requested time to enable him to contact his client, get instructions and bundle, but the Court refused to concede to any of his requests. On 12.7.1989, subpoenas had been issued and taken for P.Ws.2,3 and 5. 11. On 13.7.1989, the trial had commenced. The docket shows that the counsel for the appellant had withdrawn his memo of appearance and the appellant was offered a counsel for the Legal Aid and Advice Board to defend him, but the appellant refused free legal aid. Thiru G.Krishnamurthy had filed a memo on 13.7.1989 to the effect that the case had been originally adjourned to 24.7.1989ad without notice either to him or to the appellant, ‘it had been advanced to 12.7.1989 and then adjourned to 13.7.1989, that he was sick and unable to trace the bundle, that the Prosecutor had stated that since the accused is likely to be released on bail on 17.7.1989, the trial should be over by then and that under those circumstances, the counsel for the appellant does not intend to conduct the case before that Court and hence his memo of appearance was being withdrawn. The case had been adjourned to 15.7.1989. 12. On 15.7.1989 the case had been taken up and all the prosecution witnesses were present. The appellant was undefended and he refused to allow himself to be defended by the counsel from the Legal Aid. P.Ws.1 to 5 have been examined and Since the appellant Knew nether English nor Tamil but only Hindi, a Hindi translator had translated the proceedings to the appellant in Hindi. The appellant was undefended and he refused to allow himself to be defended by the counsel from the Legal Aid. P.Ws.1 to 5 have been examined and Since the appellant Knew nether English nor Tamil but only Hindi, a Hindi translator had translated the proceedings to the appellant in Hindi. After chief-examination, the learned Judge has made a note in each deposition that the appellant refused to cross-examine the witnesses, stating that he had nothing to do with this case and when legal aid was offered, the appellant represented in open Court that he did not want any counsel from the Legal And to defend his case. In that manner, all the witnesses had been examined and Exs.P-1 to P-10 were marked and the prosecution has been closed. The case was adjourned to 17.7.1989 for further proceedings. 13. On 17.7.1989, the docket-sheet shows that the summons to witnesses in the list of defence witnesses from the hotel from where the drug was seized, given by the appellant earlier, had been returned with an endorsement that the witnesses had left the services in I he hotel and was in formed about this appellant and the appellant stated that he had no defence witness. The docket sheet further shows that arguments were heard and the case was posted to the next day 18.7.1989 for judgment. 14. On 18.7.1989, the appellant was produced. He was found guilty and questioned with regard to the sentence. After that judgment has been pronounced, sentencing him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lakh, in default to undergo further imprisonment for a period of three years. 15. The above proceedings will show that the trial court committed a grave error in advancing the case without notice to either the appellant or to his counsel and posting it to a short date, just because the prosecution suddenly discovered that the appellant was due 13 be released on 18.7.1989 and had filed the memo for advancing the case. It has to be mentioned now, that the appellant had been detained by the Central Government under Sec.5 of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988, read with Sec.3(1) of the Ordinance and had originally been detained in the Central Prison at Agra. Under a P.T.Warrant, the appellant had been brought to Madras. It has to be mentioned now, that the appellant had been detained by the Central Government under Sec.5 of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988, read with Sec.3(1) of the Ordinance and had originally been detained in the Central Prison at Agra. Under a P.T.Warrant, the appellant had been brought to Madras. It appears from the memo filed by the prosecution, that the appellant was due to be released on 18.7.1989 and possibly apprehending that if released, the appellant might abscond and might not be available for trial, the prosecution had filed the memo at 4.45 p.m. On 10.7.1989. Possibly to avoid a situation when the appellant could abscond after release, the trial Court has expedited the entire trial. 16. Though keeping an accused available for trial, without giving room for him to abscond is an important consideration of any trial Court, still a fair trial Court be denied to an accused, merely on the basis of that consideration. It is strange that the prosecution, which had earlier filed a memo on 10.7.1989 that P.Ws.2 and 3 are not readily available, should have filed a second memo at 4.45 p.m. the same day and had taken out summons the same day for the witnesses and had brought all the five witnesses on 13.7.1989 itself. The appellant was a stranger in Tamil Nadu, not knowing either the regional language or even English and when the case had been advanced, without even informing his counsel on record, as if advancing a trial was something between the court and the prosecution only the appellant had been greatly prejudiced and handicapped in his defence. It is stated by Thiru G.Krishnamurthy, learned counsel for the appellant, that he requested the trial Court, to have the Chief examination of the witnesses, but as he was unwell and not ready with the bundle, the cross-examination at least could be deferred to a short adjournment and that the court in its anxiety to conclude the trial before 18.7.1989, rejected even this reasonable request. If the court apprehended that the appellant would abscond, there were other ways by which the same could have been prevented. The prosecution could have taken out an application for cancelling the bail or sought any other relief. If the court apprehended that the appellant would abscond, there were other ways by which the same could have been prevented. The prosecution could have taken out an application for cancelling the bail or sought any other relief. That object ought not to be achieved, by short-circuiting of procedural safeguards and denying a fair trial to an accused, particularly under a Statute, which is so rigorous, that the minimum sentence is imprisonment for a period of ten years, together with a minimum fine of Rs.1 lakh and bail pending an appeal to the appellate court, is also ruled out by the Statute, as well as by judicial interpretation by the Supreme Court in Narcotics Control Bureau v. Kishan Lal and others, A.I.R. 1991 S.C. 558. 17. The result of all this is that, while the conviction is being set aside, the appellant has already been in custody after conviction, for more than two years. It is also seen that the appellant has filed a Transfer Petition before the Principal Sessions Judge, Madras, in Crl.M.P.No.2690 of 1989, which he had sent direct from jail to the Court. The petition had been taken up on 17.7.1989 before the Principal Sessions Judge, on which date in the trial Court the appellant was questioned under Sec.343, Crl.P.C. and the Court had posted it to the next day for judgment. Despite the pendency of the above Transfer Petition, Judgment had been pronounced by the trial Court on 18.7.1989, and on 19.7.1989 the Transfer Petition had been dismissed, more or less on the ground that it had become infructuous. I am unable to hold that the appellant has been given a fair trial. The prosecution in their anxiety to conclude matters before the date of the release of the appellant from preventive detention could be expected to come forward with several requests, but it is the court that has to maintain a balance, keeping a watchful eye on the rights of the accused and his entitlement to a fair trial. 18. In the result, the conviction and sentence on the appellant are set aside and a retrial is ordered. 19. It is stated by the learned counsel for the appellant, as well as the Public Prosecutor, that the Court of the VIII Additional Sessions Judge is without a Presiding Officer. 18. In the result, the conviction and sentence on the appellant are set aside and a retrial is ordered. 19. It is stated by the learned counsel for the appellant, as well as the Public Prosecutor, that the Court of the VIII Additional Sessions Judge is without a Presiding Officer. The case shall be made over to the Officer holding additional charge of the VIII Additional Sessions Court. 20. Learned Public Prosecutor has filed an application for cancelling the bail granted to the appellant on the ground that if released, the appellant would abscond, in the same manner in which the co-accused had absconded, Mr.G.Krishnamurthy, learned counsel for the appellant, was also heard in this regard. While the learned counsel for the appellant would urge that bail should be granted in view of the long period of imprisonment the appellant has already undergone, and assured the Court that though the appellant is from Uttar Pradesh he would not abscond, I feel that it would be more appropriate to cancel the bail and expedite the retrial. This is so, in view of the possibility of the appellant absconding and the gravity of the offence for which he is facing retrial. 21. Learned counsel for the appellant made a request that if the appellant is convicted in the retrial, the period of imprisonment undergone by the appellant after the present conviction on 18.7.1989 till date of the judgment after retrial, should also be treated as remand period, so that the appellant would have a set-off under Sec.428, Crl.P.C. This should be so and it is made clear that in the event of a conviction in the retrial, the period between 18.7.1989 and the date of judgment after retrial, will also be treated as remand period and the appellant would be entitled to the set-off under Sec.428, Crl.P.C. 22. In the result, Crl.M.P.No.9775 of 1991 is allowed and bail granted to the appellant is cancelled. Crl.A.No.636 of 1989 is also allowed; the conviction and sentence are set aside and there will be a retrial by the VIII Additional Sessions Judge, Madras, who shall give priority to this case and conclude trial, as expeditiously as possible.