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2008 DIGILAW 984 (CAL)

Aptar Sardar v. STATE OF WEST BENGAL

2008-10-31

ASHIM KUMAR ROY

body2008
JUDGMENT:- (1.) The present petitioner has been facing a custody trial for an offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, in connection with Sessions Case No, 13(3) of 2008 before the learned Additional District and Sessions Judge, 12th Court at Alipore and Special Court under N.D.P.S. Act. (2.) It appears that the learned defence Counsel, who has been entrusted to conduct the trial, is related to the learned presiding Judge and consequently he expressed his inability to appeal in the matter before that particular Court in connection with the said Sessions Trial. When such facts were brought to the notice of the learned trial Court, the learned trial Court was of the view that as the Court was not empowered to release the matter, the learned District and Sessions Judge be moved for transfer of the case. Accordingly, an application for transfer under Section 408 of the Code of Criminal Procedure was moved by the petitioner before the learned District and Sessions Judge at Alipore, South 24-Parganas. However, the learned Judge rejected such application, Hence this criminal revision. (3.) It is an admitted position that the learned Counsel who has been engaged for defending the accuseds in the aforesaid Sessions trial, is related to the learned presiding Judge, and as such, he was unable to appear before that particular Court. But the learned Sessions Judge rejected the petitioners prayer for transfer on the ground that firstly, earlier similar application was moved and same was rejected and secondly, personal difficulty of an Advocate in conducting a trial is no ground for transfer. (4.) Be that as it may, the right of an accused to be defended by a Lawyer of his own choice is a fundamental right granted under Article 22(1) of the Constitution. Such is also the mandate of Section 303 of the Code of Criminal Procedure, in such view of the matter, no accused can be denied of his right to be defended by a Lawyer of his own choice. Accordingly, I am of the opinion that it would be expedient in the interest of justice that the Sessions Case No. 13(3) of 2008 now pending before the learned Additional District and Sessions Judge, 12th Court at Alipore under N.D.P.S. Act be transferred to the Court of the learned Additional District and Sessions Judge, 4th Court, Alipore and Special Judge under N.D.P.S. Act. (5.) This application succeeds and stands allowed. (6.) Let the records relating to the Sessions Case No. 13(3) of 2008 be transferred from the Court of the learned Additional District and Sessions Judge, 12th Court at Alipore and the Special Judge under N.D.P.S. Act to the Court of the learned Additional District and Sessions Judge, 4th Court at Alipore and the Special Judge under N.D.P.S. Act, immediately. (7.) The learned trial Court is directed to take all necessary steps for commencement of the trial within a fortnight from the date of communication of this order and shall make all endeavours to conclude the trial as expeditiously as possible preferably within a year from the date of commencement of the trial. (8.) Criminal Section is directed to supply the urgent xerox certified copy of this order, if applied for, to the learned Advocates for the parties.