Kuldeep Singh v. Union of India — 1995 DIGILAW 1026 (RAJ)

Honble YADAV, J. — The accused applicant is facing trial for the offences under Sections 8/15 and 19 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred as NDPS Act) before the learned Sessions Judge Pratapgrh functioning as Special Judge under the said Act. The accused applicant is behind the bars since 21.9.92. It is alleged against the accused applicant by the prosecution that he was driving a truck carrying poppy husk. (2). This is a second bail application in the aforesaid case. (3). The accused applicants first S.B. Cr.Misc. Bail Application No. 245 of 1995 was moved after statement of PW 1 to PW 5 were recorded by the learned trial court. Out of them the motbirs witnesses were declared hostile. The learned Single Judge of this Court while rejecting the first bail application of the accused applicant on 15.2.95 observed that since the learned trial Judge was taking effective measures to ensure the attendance of the remaining prosecution witnesses and had even issued bailable warrant against Shri K.L. Sharma, District Opium Officer, therefore keeping in view the evidence recorded upto the stage of the rejection of the first bail application he was not inclined to enlarge the applicant on bail. (4). It is further evident from the perusal of the rejection of first bail application by the learned Single Judge of this Court that after overall assessment of the progress of the trial of the case he directed the prosecution to produce all the remaining prosecution witnesses and got them examined within a period of three months from the date of rejection of the first bail application i.e. 15.2.1995. The learned Single Judge of this court further directed the learned trial Judge to dispose-off the case against the accused applicant within a period of 120 days from the date of receipt of the copy of his order. (5). Indisputably irrespective of the aforesaid direction of the learned single Judge of this Court on 15.2.95 even after expiry of more than 9 months neither prosecution has produced all the remaining witnesses and got them examined until now nor the learned trial Judge has disposed of the case against the accused applicant. (6). I have heard learned counsel for the applicant Shri Sandeep Mehta and Shri J.P. Joshi appearing on behalf of the prosecution at length and perused the material available on record. (7). (6). I have heard learned counsel for the applicant Shri Sandeep Mehta and Shri J.P. Joshi appearing on behalf of the prosecution at length and perused the material available on record. (7). The main thrust of the argument of learned counsel for the accused applicant before me is that the accused applicant is in detention for more than 3 years but irrespective of specific direction of this Court neither the prosecution has produced all the remaining prosecution witnesses and got them examined until now nor the learned trial Judge has disposed off the case. According to the learned counsel for the accused applicant the prosecution is deliberately not producing the prosecution witnesses and as such the applicants right for speedy trial is being violated. (8). It is next contended on behalf of the accused applicant that the accused applicant cannot be kept indefinitely in custody for the latches on the part of the prosecution specially when there was direction by this Court for the prosecution to produce the remaining witnesses and got them examined within three months from the date of the order. According to Shri Mehta, learned counsel for the accused applicant a direction was also given by this Court to learned trial Judge to dispose off the case within 120 days from the date of receipt of a copy of his order but the case has not been disposed off as yet. (9). The learned counsel appearing on behalf of accused applicant strenuously urged before me that the non-observance of the direction of this Court dated 15.2.95 is a matter which is to be seriously viewed. (10). In support of his aforesaid contention the learned counsel for the accused applicant Shri Mehta placed reliance on a decision rendered by a learned Single Judge of this Court in the case of Arjun Singh @ Bhanwar Singh vs. State of Raj. (1), a decision rendered by Division Bench of this Court in the case of Angrej Singh vs. State of Raj. (2), and unreported decision rendered by me on 4.10.1994 in S.B. Cr. Misc. IIIrd Bail Application No. 1845/95 — Takhat Singh vs. State of Raj. (11). (1), a decision rendered by Division Bench of this Court in the case of Angrej Singh vs. State of Raj. (2), and unreported decision rendered by me on 4.10.1994 in S.B. Cr. Misc. IIIrd Bail Application No. 1845/95 — Takhat Singh vs. State of Raj. (11). Learned counsel Shri J.P. Joshi appearing on behalf of the prosecution refuted the aforesaid arguments advanced on behalf of the accused applicant and vehemently urged before me that in view of the decision rendered by the Apex Court in the case of Narcotic Control Bureau vs. Kishanlal & Ors. (3), the accused applicant is not entitled to get the benefit of speedy trial. According to Shri Joshi in view of the limitations envisaged under Section 37 of the NDPS Act the mandatory provisions contemplated under Article 21 of the Constitution of India cannot be extended in the present case. (12). I have given my thoughtful considerations to the rival contentions raised at the Bar. In my considered opinion the contentions raised on behalf of the accused applicant has substance and deserves a threadbare discussion in order to dispel the doubt for all time to come. (13). For proper appreciation of the argument of Shri J.P. Joshi appearing on behalf of the prosecution the phraseology used under Section 36 of the NDPS Act is reproduced below for ready reference : "36. Constitution of Special Courts.— (1) The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area as may be specified in the notification. (2) A Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. Explanation, — In this sub-section, "High Court" means the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge. (3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge." (14). (3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge." (14). A close scrutiny of the phraseology used under Section 36 of the NDPS Act reveals that the aim and object of creation of Special Courts under NDPS Act is a speedy trial of the offences under the said Act. In my humble opinion the purpose of creation of Special Courts by the Parliament is speedy trial of the offence under NDPS Act. Under section 36 of the NDPS Act the Government has been conferred power to constitute as many Special Courts as may be necessary for such area as may be specified in the notification. To achieve the aforesaid purpose of speedy trial all the offences under the NDPS Act has been made triable only by the Special Courts. (15). In view of the aforesaid mandatory provisions contemplated u/S. 36 of the NDPS Act the argument of the learned counsel Shri J.P. Joshi to the effect that concept of speedy trial is not applicable to NDPS Act is not acceptable to me and as such it is hereby repelled. (16). There is yet another reason to repel the aforesaid argument advanced on behalf of the prosecution. The question of speedy trial came up for consideration before the apex court in the case of Hussain Nara Khatoon & Ors. vs. Home Secretary, State of Bihar (4), consisting of three Honble Judges of Supreme Court where Honble Bhagwati, J. speaking for himself and Honble Koshal, JJ ruled in para 5 to the effect that a procedure prescribed by law for depriving a person of his liberty cannot be said to be reasonable, fair or just unless that procedure ensures a speedy trial for determination of the guilt of such person. According to their lordships no procedure which does not ensure a reasonable quick trial can be regarded as reasonable, fair or just and it would foul of Article 21. According to ratio decidendi by the Apex Court in the case of Hussain Nara Khatoon (supra) reasonably expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined under Article 21 of the Constitution. (17). According to ratio decidendi by the Apex Court in the case of Hussain Nara Khatoon (supra) reasonably expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined under Article 21 of the Constitution. (17). The learned Judges in case of Hussain Nara Khatoon (supra) examined the question as to what would be the Consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of long delayed trial in violation of his fundamental right under Article 21 of the Constitution. The learned Judges said that such a person would be entitled to be released unconditionally. Therefore, it cannot be disputed that the speedy trial is not a part of the fundamental right of life and liberty under Article 21 of the Constitution. (18). An identical question came up for consideration before a Division Bench of this Court consisting of Honble M.B. Sharma and Honble M.R. Calla, JJ. in the case of Angrej Singh (supra) where it is specifically ruled that the purpose of creating Special Courts for the offences under NDPS Act is meant for speedy trial, therefore, bar under Section 37 of the NDPS Act cannot debar a Special Court or High Court to grant bail whenever and wherever it is found that there is inordinate delay in trial. According to the ratio decidendi rendered by the Division Bench of this Court in the case of Angrej Singh (supra) in such cases the concept of speedy trial which fall within the sweep of Article 21 of the Constitution is attracted and under NDPS Act the accused applicants are entitled to be enlarged on bail if inordinate delay in trial is shown before this Court. (19). The argument which is being raised before me by Shri JP Joshi appearing on behalf of prosecution placing reliance on the decision rendered by the Apex Court in the case of Kishanlal (supra) was also raised in the case of Angrej Singh (supra) before the Division Bench of this Court and this Court repelled the aforesaid argument and ruled in para 9 which reads thus: "9. We are, therefore, of the opinion that so far as the case of Kishanlal (supra) is concerned the Apex Court was not called upon and did not examine impact of Article 21 of the Constitution of India in a case under NDPS Act so far grant of bail on the ground of delay in the trial of the case is concerned. We are of the opinion that Article 21 of the Constitution of India will be attracted even in the matters of bail, the matters of bail being procedural matters, to regulate the right of liberty vis-a-vis custody during the pendency of the trial. It will depend on the facts and circumstances of each case as to what is the delay and whether on the ground of that delay in the trial of the case the accused should or should not be released on bail, the matter of bail being discretionary which discretion has to be exercised judiciously depending on the facts and circumstances of each case and the delay involved." (20). I respectfully concur with the view expressed by the Division Bench of this Court in the case of Angrej Singh (supra) and no further discussion is needed on this point. (21). The question of speedy trial again came up for consideration before the Apex Court in the case of Abdul Rahman Antuley vs. R.S. Nayak, (5), where there lordships clearly ruled that fair, just and reasonable procedure is implicit under Article 21 of the Constitution of India which creates a right in the accused to be tried speedly. In the Abdul Rahman Antuleys case (supra) their lordships took the view that the right to speedy trial is the right of the accused. From their lordships view the speedy trial is also in public interest. It is in the interest of all concern that the guilt or innocence of the accused is determined as quickly as possible in the circumstances of particular case. Their lordships further held that the right of speedy trial flowing from Article 21 of the Constitution of India encompasses all the stages viz. stage of investigation, enquiry, trial, appeal, revision and retrial. (22). Their lordships further held that the right of speedy trial flowing from Article 21 of the Constitution of India encompasses all the stages viz. stage of investigation, enquiry, trial, appeal, revision and retrial. (22). Apart from the aforesaid discussion a close scrutiny of the mandatory provisions envisaged under the Code of Criminal Procedure clearly provides for an early investigation and for speedy and fair trial, therefore, if the provisions of the Code of Criminal Procedure are religiously followed in later and spirit there would be little room for any such grievance of delay in trial. (23). The Apex Court in Abdul Rahman Antuleys case (supra) has observed that the constitutional guarantee of speedy trial emanating from Article 21 is properly reflected under the provisions of Code of Criminal Procedure. According to their lordships decision infringement of right of speedy trial is not sufficient to quash the charges or conviction but there are other methods available which could be followed by the courts after a close scrutiny of the facts and circumstances of each case. Therefore, in my considered opinion whenever and wherever it is found by this Court that due to latches of prosecution or any other reason there is inordinate delay in trial of an accused in appropriate cases such accused can be enlarged on bail. (24). In the present case a very sad state of affairs has been brought to my notice and is being argued before me strenuously on behalf of the accused applicant, therefore, I consider it proper to take notice of the statutory provisions contemplated under rule 42 and rule 43 of the General Rules (Criminal), 1980 (hereinafter referred as the Rules of 1980) also which have been framed by this Court in exercise of its rule making powers conferred upon it by Article 227 of the Constitution of India with the approval of his Excellency Governor of Rajasthan and published in Rajasthan Rajpatra part IV-C (I) dated 31.1.1980. (25). Statutory provisions contemplated under rule 42 of the Rules of 1980 envisaged that the sessions cases should be disposed off with the greatest possible expedition. Sessions Judge should reserve particular number of days in a week for sessions work. (25). Statutory provisions contemplated under rule 42 of the Rules of 1980 envisaged that the sessions cases should be disposed off with the greatest possible expedition. Sessions Judge should reserve particular number of days in a week for sessions work. It further provides that in case where the Sessions Judge decides to proceed under Section 228 (1) (b) of the Cr.P.C. he shall after recording the plea of accused shall fix the date for the evidence of the prosecution and may on the application of the prosecution issue process forthwith for compelling the attendance of witnesses or the production of the document or other thing. (26). Rule 43 of the Rules of 1980 further provides that the sessions trial should ordinarily be held in order in which commitments are made. The Presiding Officer may however exercise his discretion in the matter of giving priority to certain cases particularly the cases involving capital sentence subsequently received or where the accused is in jail. Once a sessions trial is opened the Sessions Judge shall see that it is disposed-off in the same session and not adjourn to next session. The sessions cases shall be taken up day to day until all the witnesses in attendance have been examined and discharged. The Sessions Judge shall take necessary steps to get the summons served on the witnesses in time and if necessary the Superintendent of Police of the District may be asked to make special efforts to secure the attendance of the witnesses. A sessions trial shall not be adjourned or postponed except in exceptional circumstances for reasons to be recorded in writing. (27). The learned counsel for the accused applicant has produced before me the order-sheet of the court of the learned trial Judge which reveals that the aforesaid rules 42 and 43 made for the expeditious disposal of sessions cases are only being obeyed in its breach and not in its compliance in the present case. It is apparent from the perusal of the order-sheet that the present sessions case where the accused applicant is in jail for more than, three years his case is not being taken up from day to day but is adjourned or postponed without any reason being recorded in writing as contemplated under rule 43 of the Rules of 1980. (28). It is apparent from the perusal of the order-sheet that the present sessions case where the accused applicant is in jail for more than, three years his case is not being taken up from day to day but is adjourned or postponed without any reason being recorded in writing as contemplated under rule 43 of the Rules of 1980. (28). In my considered opinion sooner the rules 42 and 43 of the Rules of 1980 are complied with by the court of Sessions which is a statutory rule the better it will be. (29). It is pertinent to mention that the learned counsel appearing on behalf of the prosecution has not brought any material to my notice which could furnish any cogent and convincing reasons for not producing the remaining prosecution witnesses within three months as directed by learned Single Judge of this Court on 15.2.95. The prosecution has not examined all its remaining witnesses as directed by this Court until now. (30). According to Shri Joshi, learned counsel for the prosecution the case is posted in the month of December, 1995 for producing remaining witnesses of the prosecution, therefore, he made a request to grant time to produce remaining prosecution witnesses upto 2nd week of December, 1995. Looking into the aforesaid facts and circumstances I declined to grant him further time as learned Single Judge of this Court has already given sufficient time with a direction to produce his remaining witnesses which they failed to do so for the reasons best known to the prosecution. (31). The judicial restraint does not permit me to observe more than necessary but suffice it to say in this regard that the direction of this Court is to be followed in future by all religiously. It appears to me in the present case that the learned trial Judge has no control over the prosecution agency. In the present case the accused applicant has not contributed anything hampering the effort of prosecution agency to produce remaining witnesses within time stipulated by this Court on 15.2.95. This is not the case of the prosecution that the accused applicant if released on bail he would tamper any of the prosecution witnesses. (32). It is brought to my notice by the learned counsel for the accused applicant that all those witnesses who were cited in the charge-sheet have already been examined. This is not the case of the prosecution that the accused applicant if released on bail he would tamper any of the prosecution witnesses. (32). It is brought to my notice by the learned counsel for the accused applicant that all those witnesses who were cited in the charge-sheet have already been examined. Now the case is posted in the month of December, 1995 for examining the prosecution witnesses viz. Bhikam Singh, Kalu and Rajmal who have not been cited as witnesses in the charge-sheet. The application for summoning the aforesaid witnesses was moved by the prosecution on 12.10.1995 and these witnesses have been summoned by the learned trial Judge to examine in the month of December, 1995. Be that as it may. (33). As it is apparent from the preceding paragraphs of this order that the learned Single Judge of this Court on 15.2.95 has directed the learned trial Judge to I dispose-off the case within 120 days from the date of receipt of a copy of his order but irrespective of the aforesaid direction given by this Court more than 9 months have expired but the learned trial Judge has not disposed off the case as yet. (34). The aforesaid question came up for consideration before the then Honble Shri M.B. Sharma, J. famous for his erudition in the case of Arjun Singh @ Bhanwar Singh (supra) where in his usual elucidatory manner he ruled in para No.4 of his judgment as follows : — "4. This Court in several cases has taken a view that if direction is given by this Court to dispose of a case within specific time and if for no valid reasons the trial is not concluded within specific time, then the accused should be released on bail. In the case of Lokesh Bhardwaj vs. State of Raj. (1) a Judge of this Court took a view in the fifth bail application that the accused petitioner is not expected to suffer on account of any mistake or delay in the office of this Court and if the trial is not completed within time specified by this Court, then the accused should be released on bail." (34). I respectfully agree with the view taken by learned Single Judge of this Court in the case of Arjun Singh @ Bhanwar Singh (supra). I respectfully agree with the view taken by learned Single Judge of this Court in the case of Arjun Singh @ Bhanwar Singh (supra). I do not consider it necessary to burden this order by referring innumerable decisions cited at the Bar in support of aforesaid proposition of law. Suffice it to observe that in case of Arjun Singh @ Bhanwar Singh (supra) the accused was found to be in detention for 31 months while in other similar cases cited at the Bar the accused were in detention less than 31 months but in the present case the accused applicant is in detention for more than 38 months. (36). As a result of the aforementioned discussion, it is hereby directed that accused applicant Kuldeep Singh son of Pal Singh be released on bail provided he furnishes a personal bond in the sum of Rs. 50,000/- (Rupees fifty thousand only) with two sureties of the like amount to the satisfaction of learned Sessions Judge functioning as Special Judge under NDPS Act, Pratapgarh with stipulation to appear in that court as and when called upon to do so during the pendency of the trial against him in this case. (37). With anguish Registry of this Court is directed to send a copy of this order to the learned Sessions Judge, Pratagparh functioning as Special Judge under NDPS Act and call for an explanation as to why direction given on 15.2.95 has not been followed and as to why the statutory provisions contained under rules 42 and 43 of the Rules of 1980 are not being complied with. (38). The explanation of learned Sessions Judge on both the points may reach to the Registry of this Court within one month from the date of receipt of a copy of this order. The explanation received may be placed before me within two weeks from the date of its receipt. (39). The learned trial Judge is again directed to use all his powers now to expedite the trial of the case and dispose-off the same within two months from the date of receipt of a copy of this order.