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2001 DIGILAW 246 (CAL)

Ashakant Jain v. State of West Bengal

2001-04-27

DEBIPRASAD SENGUPTA

body2001
JUDGMENT 1. This revisional application is directed against an order dated 28.8.92 passed by the learned Metropolitan Magistrate, 15th Court, Calcutta in Case No. C-1838 of 1982 thereby rejecting the petitioners' prayer for discharge under Section 245 (3) of the Code of Criminal Procedure. 2. The present petitioners were arrested by the Officers attached to Calcutta Customs on 12.5.76. On the next date they were produced before the learned Metropolitan Magistrate, Calcutta and the Case being No. C-1838/82 under Section 135 of the Customs Act was registered. The allegation against the present petitioner was that acting on a source information that the petitioners were trafficking in illegal and contraband" Hashish" a group of Customs Officers maintained a secret watch over them and on 12.5.76 they were able to catch the said accused persons and recovered from their possession huge quantity of Hashish weighing 13 Kgs., valued at Rs. 52,000/-. The said Hashish was kept inside a bad and had foreign marks embossed on it. A reasonable suspicion arose that the same was on foreign origin. 3. On 31.5.82, the Assistant Collector of Customs, West Bengal Calcutta filed a complaint under Section 135 (1) (b) of the Customs Act against the petitioners and another, whereupon the learned Chief Metropolitan Magistrate, Calcutta took cognizance of the said offence. It appears that till September 19, 1984, the hearing of the case was adjourned on several occasions as the accused Purnachand Jain was absent and as such the learned Magistrate directed to file the case against the said accused. The case was transferred to the Court of learned Metropolitan Magistrate, 15th Court, Calcutta who received the case record on transfer and fixed 11.12.84 for evidence before charge. 4. The grievance of the petitioners is that in connection with the aforesaid case, the examination of the prosecution witnesses before charge started on 15.2.85 but till the date when the present revisional application was moved, the evidence before charge could not be completed. According to the petitioners after examination of the first witness by the prosecution on 15.2.85, the examination of the remaining witnesses was adjourned on 27 occasions on the prayer of the prosecution as no witness was present in the Court and on 10 occasions on the prayer of the accused petitioners. According to the petitioners after examination of the first witness by the prosecution on 15.2.85, the examination of the remaining witnesses was adjourned on 27 occasions on the prayer of the prosecution as no witness was present in the Court and on 10 occasions on the prayer of the accused petitioners. In such circumstances, the petitioner filed an application with a prayer for discharge under Section 245 (3) of the Code of Criminal Procedure. By the impugned order dt. 28.8.92, the learned Metropolitan Magistrate, 15th Court, Calcutta rejected the said application under Section 245 (3) Cr. P.C. and hence this revision. 5. Mr. Balai Ch. Roy, the learned Advocate appearing for the petitioners submits that the present proceeding under Section 135 (1) (b) of the Customs Act was protracted for long period mainly due to the laches on the part of the prosecution for which the accused persons are not at all responsible. Mr. Roy further submits that the offence under Section 135 (1) (b) of the Customs Act is punishable with imprisonment which may be extended to 2/3 years or with fine or with both. In the present case while the petitioners were arrested in connection with above noted case and before they were released on bail, they were detained under COFEPOSA and were in pre-trial detention for a total period of three (3) months. Mr. Roy further submits that the petitioner's valuable right guaranteed under Article 21 of the Constitution of India for speedy trial is totally frustrated by the manner in which the prosecution is being conducted in the Court below. In such circumstances, according to Mr. Roy, this is a fit case for interference by this Court and the impugned proceeding is liable to be quashed on this score alone. I have heard the learned Advocate appearing for the petitioners. I have perused the entire order sheet passed by the learned Magistrate. There is no doubt that some of the witnesses had already been examined in this case but from the entire order sheet, it appears that the proceeding is being dragged in the trial Court only because of the laches on the part of the prosecution. No doubt, prayers for adjournment were also made by the accused on few occasions but delay was mainly caused at the instance of the prosecution. In the present case cognizance of the offence was taken on 31.5.82. No doubt, prayers for adjournment were also made by the accused on few occasions but delay was mainly caused at the instance of the prosecution. In the present case cognizance of the offence was taken on 31.5.82. The first witness was examined in this case on 15.12.84 and, thereafter, within a period of more than 8 years, the prosecution failed to complete the evidence before charge. The incident took place on 12.5.76. After a lapse of more than six years, the complaint was filed by the Customs Authority on 31.5.82. Cognizance of the offence was taken on 31.5 82 but till the date of moving the present revisional application before this Court on 17.12.92, the prosecution failed to complete the evidence before charge. It becomes evident from the entire order sheet that almost on all the dates the petitioners were represented by their Lawyer but the matter was adjourned from time to time by the learned Judge mainly on the prayer of the prosecution. In my considered view on this score alone the present case warrants interference by this Court. In view of the fundamental right of speedy trial as guaranteed under Article 21 of the Constitution of India. It is a fit case in which the proceeding should be quashed on this score alone. The petitioners have already suffered from mental agony since 1976. At this stage after a lapse of about 25 years, I do not find any reason to give any further opportunity to the prosecution to complete its evidence before charge. The present application, accordingly, succeeds and the same is allowed. The proceeding being Case No. C-1838/82 under Section 135 of the Customs Act now pending in the Court of learned Metropolitan Magistrate, l5th Court, Calcutta is hereby quashed.