Gujarat High Court
Shileshbhai Narsinhbhai Barvadiya vs National Investigation Agency on 6 August, 2021
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 961 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of India
or any order made thereunder ?
CIRCULATE THIS JUDGEMENT IN THE SUBORDINATE
JUDICIARY.
==========================================================
SHILESHBHAI NARSINHBHAI BARVADIYA
Versus
NATIONAL INVESTIGATION AGENCY
==========================================================
Appearance:
MR CHETAN PANDYA, ADVOCATE WITH MR ABHISHEKKUMAR C
MALVI(9941) for the Appellant(s) No. 1
MR DEVANG VYAS(2794) ADDITIONAL SOLICITOR GENERAL OF INDIA
for the Opponent(s)/Respondent(s) No. 1
PUBLIC PROSECUTOR(2) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 06/08/2021
ORAL JUDGMENT
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R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1 "Crime and the actions of the criminal justice system are mutually
responsive, influencing each other in ways that are only minimally predictable; general changes in the political and socio-economic climate will affect both crime and the criminal justice system in a similar manner". Alfred Blumstein in Encyclopedia of Crime and Justice, Khadish (ed.).
2 This Criminal Appeal under Section 21 of the National Investigation Agency Act, 2008 (for short, "the N.I.A. Act") read with Section 439 of the Code of Criminal Procedure, 1973 (for short, "the Code") is at the instance of an undertrial accused questioning the legality and validity of the order passed by the Special Judge (NIA), City Sessions Court, Ahmedabad, dated 4th March 2020 rejecting the bail application filed by the accused in connection with the First Information Report registered with the Rajkot 'A' Division Police Station, Rajkot, vide I-C.R. No.51 of 2017, and later, re-registered vide R.C. No.06-2017/NIA/ DLI with the National Investigation Agency for the offences punishable under Sections 120B, 201, 406, 420, 489A, 489B, 489C, 489D, 468 and 471 of the Indian Penal Code.
3 It appears from the materials on record that the accused appellant was arrested on 24th February 2017. Upon completion of the investigation, chargesheet was filed on 3 rd June 2017 against in all six persons including the appellant herein for the alleged offences enumerated above. The filing of the chargesheet culminated in the Special Case (NIA) No.1 of 2017 in the Court of the Special Judge (NIA), Page 2 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 Ahmedabad.
4 We also take notice of the fact that in the past, the appellant herein had preferred the Criminal Appeal No.909 of 2017 before this Court with a plea that he may be released on bail. The Criminal Appeal No.909 of 2017 was disposed of by a Coordinate Bench vide order dated 4th April 2018, which reads as under:
"Shri Pratik Jasani, learned advocate appearing on behalf of the appellant, under instructions from his client, does not press the present Appeal at this stage and seeks permission to withdraw the same with a liberty to file a fresh application in case there is a delay in concluding the trial and the trial is not concluded within the reasonable time. Permission is accordingly granted. Appeal stands dismissed as withdrawn with the above liberty. The learned Special Court is directed to frame the charge after following the due procedure, as required, at the earliest but not later than two weeks from the date of receipt of the present order. All concerned are directed to cooperate with the learned Special Court to frame the charge within the stipulated time stated hereinabove and also in concluding the trial at the earliest."
5 We also take notice of the fact that the prosecuting agency proposes to examine 77 witnesses in support of its case. Considering the fact that the appellant herein is in jail past almost five years, we thought fit to pass the following order dated 16th July 2021:
"1. We have heard Mr. Chetan Pandya, the learned counsel assisted by Mr. Abhishekkumar Malvi, the learned advocate appearing for the appellant - original accused and Mr. Devang Vyas, the learned Additional Solicitor General of India appearing for the National Investigation Agency.
2. We take notice of the fact that the appellant has been put to trial for the offences punishable under Sections-120B, 201, 406, 420, 489A, 489B, 489C, 489D, 468 and 471 of the Indian Penal Code in the Special Court of NIA, Ahmedabad. The prosecution is of the year 2017. We are informed that till this date the NIA Court has been able to examine 22 prosecution witnesses. The prosecution proposes to examine around Page 3 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 147 witnesses.
3. We also take notice of the fact that in the past, the appellant had come before this Court with the plea to release him on bail and the same was declined by a Co-ordinate Bench of this Court vide order dated 04.04.2018 passed in the Criminal Appeal No.909 of 2017. The order reads thus:-
"Shri Pratik Jasani, learned advocate appearing on behalf of the appellant, under instructions from his client, does not press the present Appeal at this stage and seeks permission to withdraw the same with a liberty to file a fresh application in case there is a delay in concluding the trial and the trial is not concluded within the reasonable time. Permission is accordingly granted. Appeal stands dismissed as withdrawn with the above liberty. The learned Special Court is directed to frame the charge after following the due procedure, as required, at the earliest but not later than two weeks from the date of receipt of the present order. All concerned are directed to cooperate with the learned Special Court to frame the charge within the stipulated time stated hereinabove and also in concluding the trial at the earliest."
4. In view of the aforesaid, we would like to know the status of the NIA Special Criminal Case No.1 of 2017 pending as on date in the NIA Special Court at Ahmedabad. We would like to know from the NIA Judge that how much time he is likely to consume before the oral evidence is closed.
5. The Registry shall call for the report in the aforesaid regard from the NIA Special Court at Ahmedabad so as to reach this Court on or before 29.07.2021. Post this matter on 30.07.2021."
6 In response to the aforesaid order passed by this Court, the Principal and Special Judge (NIA), Ahmedabad addressed the following letter dated 28th July 2021:
"To No.1213/2021
The Registrar General Date : 28/07/2021
High Court of Gujarat
At Sola, Ahmedabad.
Sub : Status of NIA Special Case No.1 of 2017 pending before this Court.
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Forwarding of report reg...
Ref : Order dated 16/07/2021 passed by the Hon'ble High Court of Gujarat (Coram : Hon'ble Mr. Justice J.B. Pardiwala and Hon'ble Ms. Justice Vaibhavi D. Nanavati) in R/Criminal Appeal (Regular Bail) No.961 of 2021.
Dear Sir, With reference to the above subject, I have the honour to sate that the Hon'ble High Court of Gujarat has, vide the referred order the writ whereof was received by this Registry only on 28/07/2021, called for the report regarding status of NIA Special Case No.1/2017 pending before the Special NIA Court of the City Civil Court at Ahmedabad, as also the details with regard to time likely to be consumed before the oral evidence is closed in the proceedings.
In connection with the above, I have the honour to further state that the undersigned is presiding over one of the two special Courts for NIA cases, in the City Civil & Sessions Court, Ahmedabad, and the original proceedings relating to the proceedings under consideration of the Hon'ble High Court, i.e. NIA Special Case No.1/2017 are pending before the Court of the undersigned.
I may further humbly state that the prosecution has produced a list of in all 70 witnesses to be examined on the part of the prosecution, wherefrom till date 20 witnesses have been already examined by this Court during the course of trial which has progressed so far in NIA Special Case No.1/2017. It is humbly further stated that considering the fact that 50 more prosecution witnesses are yet to be examined, in my humble and considered opinion, the process of examining these remaining 50 witnesses would consume time of not less than 1 ½ years before closure of such oral evidence.
In the circumstances, I am to request you to be so good as to place this letter before Hon'ble Mr. Justice J. B. Pardiwala and Hon'ble Ms. Justice Vaibhavi D. Nanavati for their kind perusal, information and due consideration. The R/Criminal Appeal No.961/2021 is listed before the Hon'ble High Court of Gujarat on 29/07/2021.
Your sincerely, sd/-
(Shubhada K. Baxi) Principal Judge & Special Judge (NIA)"
7 Thus, from the aforesaid, it appears that till last month, only 20 Page 5 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021
witnesses had been examined and 50 more witnesses are yet to be examined. The Special Judge is of the view that it would take atleast one and half years before the evidence is closed.
8 Mr. Chetan Pandya, the learned counsel appearing for the appellant vehemently submitted that its been almost five years that his client is in judicial custody as an undertrial accused and the trial is not likely to come to an end in near future. He would submit that if the prosecuting agency intends to examine 50 more witnesses, then the pace at which the trial is progressing, it would take another 2 to 3 years before the evidence is closed by the prosecution.
9 Mr. Pandya would submit that the fundamental right of his client to have a speedy trial, as enshrined under Article 21 of the Constitution of India, could be said to have been infringed and on this count alone, irrespective of the merit of the case or the nature of the charge, his client may be released on bail subject to the strictest of the terms and conditions.
10 Mr. Pandya would submit that in the entire State of Gujarat, there is only one NIA Court. The Principal Judge of the City Civil and Sessions Court, Ahmedabad has been designated as the Special Judge (NIA). Mr. Pandya pointed out that the learned Special Judge is not able to devote sufficient time to conduct the trials under the NIA as the learned Special Judge is busy with the trial of Naroda Patia case. According to Mr. Pandya, there are other trials also under the NIA in progress.
11 In such circumstances referred to above, Mr. Pandya prays that his client may be released on bail subject to the terms and conditions that this Court may deem fit to impose.
Page 6 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 12 On the other hand, this appeal has been vehemently opposed by
Mr. Devang Vyas, the learned Additional Solicitor General of India appearing for the National Investigation Agency. Mr. Vyas would submit that having regard to the serious nature of the crime alleged to have been committed by the appellant, this Court may not entertain the plea of bail only on the ground of violation of Article 21 of the Constitution of India. Mr. Vyas would submit that the serious nature of crime should also be taken into consideration while considering the right of the accused to have a speedy trial, as enshrined under Article 21 of the Constitution of India. Mr. Vyas very fairly submitted that the trial is not likely to be completed in next two to three years as almost 50 witnesses are yet to be examined. However, Mr. Vyas assures this Court that all necessary steps shall be taken to ensure that there is no undue delay in the examination of the prosecution witnesses.
13 In such circumstances referred to above, Mr. Vyas, the learned Additional Solicitor General of India prays that there being no merit in the present appeal and also in the plea of bail as raised by the accused, the appeal may be dismissed.
14 We should also give a fair idea as regards the case of the prosecution against the accused appellant herein and the other co- accused. We may quote the gist of the offences as contained in the last part of the chargesheet:
"Brief facts of the case:
i) On 24 February, 2017, Nitinbhai Bavabhai Ajani, aged 45 yrs.
r/o Vishakha, Shri Ram park-2, Opp. Navneet Hall, Sheri No.03, Kotharia Road, Rajkot lodged complaint at A-Division Police Station, Page 7 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 Rajkot city, Gujarat against Ketan Suryakant Dave, Shailesh Narshibhai Barvadiya and 6-7 unknown persons. The incident took place on 23.02.2017 in the office of Devashree Account & Finance, Rajkot sitauted on 4th floor, 421/422, Nakshtra-6, Building, Gondal Road, Rajkot, Gujarat. As per the said complaint, the accused Ketan S. Dave in this case gained confidence of the complainant, partner of Balaji Enterprise, Rajkot and told him to transfer Rs. 50 lakh by RTGS (Real Time Gross Settlement which is one Of the modes Of transfer of funds through banking channel) from the account of his firm viz. Balaji Enterprise in the bank account B.K. Enterprise and he assured that once the amount is credited, he will handover Rs. 50 lakh In cash on the same day. However, the accused did not hand over Rs. 50 lakh to the complainant in spite of receiving the fund in his designated bank account. As he had planned not to handover cash to the complainant. Consequently,the present Crime No. 51/2016 was registered at A- Division Police Station, Rajkot City on 24.02.2017 u/s. 406, 420, 120B of IPC 1860.
ii) During investigation, Fake Indian Currency Notes of face value of Rs. 57.16 Lakh was recovered from the above said Office of the accused Ketan Suryakant Dave (A-1). On 25.02.2017 provisions of sections 489B & 489C Of IPC 1860 were also invoked in the said crime.
iii) During the course of investigation, it was revealed that Kishorbhai Kanjibhai Ranpariya (A-3) and Anvarbhai Ibrahimbhai Tayani were also involved in the said crime. Accordingly, both were arrested On 27.02.2017
iv) During the course of further investigation, it was revealed Umang Bipinbhai Adivecha (A-5) and Parth Jagdishbhai Teraiya (A-6) were also involved in the Said crime. Accordingly both were also arrested on 28.02.2017.
v) On 01.03.2017, at the instance of accused Umang Adiyecha (A-
5). The material used for printing the said fake notes were seized from a Ritz Car of Ketan Dave (A-1) parked near Mahadeve Temple, Punit Nagar, Rajkot. The said car is owned by Jayesh Meghan, but the
vi) On 01.03.2017, accused Parth Teraiya (A-6) revealed the place Where he had burnt 2-3 bundles Of fake currency notes as per the direction Of accused Ketan Dave (A-1) three to four days prior to the incident on 23.02.2017 at open area, Near Sandniya pul, Jamnagar Road, Rajkot. Subsequently, provision of sections 201 of IPC 1860 was also invoked in the said crime on 01.03.2017.
vii) At the instance of accused Umang Adiyecha (A-5), Skoda Car car no. G)-1-KA-8551 parked in open space in front of Akhil-A Apartment, Sukhsagar, Behind Punit Nagar, Rajkot was searched on 03.03.2017 by Page 8 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 using key provided by Mrs. Kiranben Dave (mother of accused Ketan Dave), which resulted in seizure of fake Indian currency notes of face value of Rs. 3.92 Crore and other material used for printing/packing of the said fake notes. The said Skoda car is owned by Mrs. Nitaben D. Raval, maternal aunt of accused Ketan Dave, but the said car mostly used by accused Ketan Dave.
viii) The Central Government having regard to the facts and gravity of the said offence and in exercise Of the powers conferred under sub section (5) of Section 6 read with Section 8 Of the National Investigation Agency Act 2008, Suo motu directed the National Investigation Agency to take up the investigation of the case vide an Order NO. 11011/16/2017-IS.IV dated 15/03/2017 of Ministry of Home Affairs, New Delhi. Pursuant to the Said order, N.1.A., New Delhi P.S. re-numbered the crime as case No. RC06/2017/NIA/DLI on 16/03/2017 and the investigation of the said case was taken up by N.1.A, Branch office Mumbai.
17. Facts Disclosed during investigation:
17.1. The incident taken place on 2302.2017, in respect of the the transaction of RS:50 lakhh by RTGS from the account of Balaji Enterprise to that of B. K. Enterprise, was a part of the conspiracy to cheat the complainant, who was in, need of cash for business purpose.
17.2. The accused persons were known to each other and their main motive was to show the Fake Indian Currency Notes (hereinafter referred as FICN) as genuine and after the party satisfied and the RTGS is done by him, divert the said FICN with the assistance of other conspirators and project the party come for the delivery that he had cash with him, but the same has been robbed. Thereafter, do not handover the cash to party and to misappropriate the said money received in the designated bank. The party who would come for delivery may not approach police as they may not be able to account for the transaction Of such huge amount.
17.3 After demonetization, In November 2016, the conspiracy was hatched between accused and it was decided that, Ketan Dave (A-1) will arrange for fake Indian currency notes for showing to the party coming for the deal, accused Kishorbhai Ranpariya will register a firm and open a bank account for facilitating RTGS and accused Anvarbhai Tayani will provide manpower for taking away the FICN after showing it to the party.
17.4 As per the conspiracy, accused Ketan Dave (A-1) purchased one HP colour printer on 01.12.2016 from Croma Showroom, Rajkot.
Accused Ketan Dave (A-1) and accused Umang Adiyecha (A-5) scanned legal tenders Of Indian rupees in the denomination of 2000 and printed Page 9 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 Fake Indian Currency Notes by using printer, scanner and laptop in their Office at Nakshatra-6 building itself. Subsequently, they started printing the FICN at the Sadhu Vaswani house of accused Ketan Dave and found that the printing speed of the printer was slow and was consuming more ink. As the cartridge was costly and was not readily available, another colour printer of Canon Company was purchased on 06.12.2016 from a shop named Printer House, Rajkot and ink bottles required for refilling were purchased from the said shop from time to time, by both Of them. Accused also purchased JK bond white papers, paper cutting machine, scale, packing clips, packing machine, plastic packing tapes etc. from different shops located in Rajkot required for printing, cutting, packing of FICN.
17.5 Thereafter, to maintain the confidentiality, the accused took a flat No.102, Prayag Apartment, Rajkot on rent of Rs.10000/per month and started printing the FICN.
17.6 After completion of printing of FICN Of face value of Rs. 5 crore, accused Ketan Dave (A-1) started searching for people who were interested in exchanging the unaccounted demonetised currency notes or wanted hard cash against transfer of funds by RTGS.
17.7 Accused Ketan Dave (A-1), in order to gain the confidence of customers and show it to them, that he is really in possession of hard cash, took photographs of 25 bundles of FICN in his mobile phone, as a token of assurance of having cash in new currency of 2000 denomination.
17.8 Accused Ketan Dave (A-1) approached one Pravin Thakkar resident of Ahmedabad and told him to inform names of parties who are ready to do RTGS and take back their money in cash. This deal did not materialise as Pravin Thakkar could not provide any such customer.
17.9 Thereafter, in January 2017, accused Ketan Dave (A-1) requested one Dipen Dave resident of Raikot to suggest name of persons ready to do RIGS and take money in hard cash. Dipen Dave suggested to contact one Deepak Dave resident of Rajkot and said that he might have some party for the same. Accordingly, Ketan Dave (A-1) contacted Deepak Dave, who suggested name of one Mahesh Trivedi from Ahmedabad. Thereafter, Ketan Dave (A-1), Dipen Dave & Deepak Dave visited Ahmedabad and as referred by Mahesh Trivedi, they met his friend Shailesh Trivedi at Ahmedabad. Accused Ketan Dave (A-1) told Shailesh Trivedi to give reference of any person ready to do RTGS and take money in hard cash. Shailesh Trivedi replied that he does not have any such reference and will revert back if any person approaches them.
17.10 Accused Ketan Dave (A-1) assited accused Kishorbhai Ranpariya (A-3) in opening a current bank account in the name Of B.K. Enterprise Page 10 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 by providing address proof of one Pratik Dave from Ahmedabad. A rent agreement in the name of Pratik Dave and Kishorbhai Ranpariya (A-3), for renting office premises of Pratik Dave was prepared which was signed by Umang Adiyecha (A-5) on behalf of Pratik Dave and instead of Pratik Dave's photo, he had put his own photo on the said rent agreement and got it notarized from Ahmedabad.
17.11 Accused Ketan Dave(A-1) was constantly making efforts but, he was not getting any customer ready to take cash in new currency in lieu of exchange of unaccounted demonetized old currency. So, he started searching for people who would transfer money by RTGS through banking channel, however take back the said money in cash. Accused Ketan Dave (A-1) contacted Sanjay Sorathiya resident of Rajkot and requested him to suggest any party for the said purpose. Sanjay Sorathiya referred name of one Bhaveshbhai Harsoda, partner of Balaji Enterprise, Rajkot.
17.12 Initially, in order to gain confidence, Ketan Dave (A-1) told Bhaveshbhai, partner of Balaji Enterprise through Sanjay Sorathiya to transfer Rs.10 Lakh by RTGS in the bank account of Poonam Industries owned by accused Kishor Ranpariya (A-3). After receiving RTGS of said Rs.10 Lakh, Ketan Dave (A-1) returned the said amount in cash on 17.02.2017. Similarly, Ketan Dave (A-1) told to transfer Rs.10 Lakh each on 18.02.2017 and 21.02.2017 in the bank account of Poonam Industries. Every time, accused further transferred said amount in bank account of some other firm without their knowledge and after withdrawing it from their accounts, returned the said amount in cash to Bhaveshbhai Harsoda, partner of Balaji Enterprise against the RTGS made by them, in fair manner.
17.13 Meanwhile, Deepak Dave suggested name of one Nitin Bumtaria, working as manager in Jamnagar Dist. Cooperative Bank Rajkot who is ready to do RTGS and take money in cash. In the morning of 23.02.2017, Ketan Dave (A-1) showed them hard cash in his office. Nitin Bumtaria called another person viz. Mukeshbhai Soni to office of Ketan Dave (A-1) to check the cash. Accused Ketan Dave offered him to take the cash against RTGS. Mukeshbhai Soni said that he will do RTGS only after receiving money in angadia (private money transfer channel), When Ketan Dave (A 1) did not agree for the same, the said deal could not be executed, 17.14 By returning cash after doing RTGS on three Instances, Ketan Dave (A-1) had gained the confidence of Bhaveshbhai Harsoda, partner of Balaji Enterprise. Now, Ketan Dave (A-1) planned for RTGS transaction of big amount to accomplish his plan of cheating by using FICN and for the said purpose he convinced Bhaveshbhal Harsoad, partner of Balaji Enterprise to do RTGS of big amount, In a meeting held in his office on 22.02.2017 In presence of Sanjay Sorathiya.
Page 11 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 Finally, it was decided that first cash will be shown to the representative of Balaji Enterprise and then RTGS of Rs.50 Lakh will be done from the account of Balaji Enterprise to that of B. K. Enterprise.
17.15 Accordingly, In the morning of 23.02.2017, Ketan Dave (A-1) contacted Sanjay Sorathiya and told him that cash will be brought by the representative of his Ahmedabad party and told him to come to his office to verify the cash. Accordingly, Ketan Dave (A-1) first Showed three bundles of hard cash to Sanjay Sorathiya and then to Nitinbhai Ajani, partner of Balaji Enterprise and convinced them for the deal by projecting that he has hard cash of Rs.60 Lakh with him, and told them to do RTGS of Rs.50 Lakh in the account of B.K. Enterprise. Prima facie, Nitinbhai Ajani, the complainant got convinced that Ketan Dave (A-1) is in possession of hard cash in denomination of Rs.2000 so, he directed his employee to transfer Rs.50 lakh from the account of Balaji Enterprise to that of B.K. Enterprise through RTGS. Ketan Dave (A-1) was informed that RTGS has been done, but he kept on delaying on one or the other pretext. Even after confirming about receipt of Rs.50 Lakh in the account of B.K. Enterprise, through the local branch at Central Bank of India, Ketan Dave (A-1) did not hand over the said cash which was shown by him to. the complainant, prior to doing RTGS. Ketan Dave (A-1) sought time by saying that his Ahmedabad party had to receive payment of Rs.10 Lakh from another party and till the same was received he had been told not to hand over the cash to complainant. Meanwhile, as per plan accused Ketan Dave (A-1) sought help of accused Anvarbhai Tayani (A-4) who came to office of accused Ketan Dave (A-1) and made an attempt to take away accused Shailesh Barvadiya(A-2) from the spot along with the bag containing FICN under the pretext that he had to receive payment of Rs.10 Lakh and he was taking the said cash along with Shailesh Barvadiya (A2) to settle the said matter. However, complainant Nitinbhai Ajani and his men did not allow them to do SO and sought police help. Thus. the instant case was registered.
17.16 Thereafter, during investigation, FICN of face value of Rs.57.16 Lakh was recovered from the office of the accused. The provisions of sections 4896 & 489C Of IPC 1860 were also invoked in the said crime on 25.02.2017.
17.17 uring the course of investigation, was revealed that Kishorbhai Kanjibhal Ranpariya (A-3) and Anvarbhai Ibrahimbhai Tavani (A-4) were involved in the sad crime. Accordingly both were arrested on 27.02.2017.
17.18 During the course of investigation, it was revealed Umang Bipinbhai Adyecha (A-5) and Parth Jagdishbhai Teraiya (A-6) were involved in the sad crime. Accordingly, both were arrested on 28.02. 2017.
Page 12 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 17.19 On 01/03/2017, at the instance of accused Umang
Adiyecha (A-5) the material used for printing the said fake notes were seized from Ritz Car of Ketan Dave (A-1) parked near Mahadeve Temple, punit Nagar, Rajkot.
17.20 On 01.03.2017, accused Parth Teraiya (A-6) revealed the location of place where he had burnt 2-3 bundles of fake currency notes as per the direction of accused Ketan Dave (A-1), three to four days prior to the incident on 23.02.2017 at open Area, Near Sandhiya Pul, Jamnagar Road, Rajkot. Subsequently, provisions of sections 201 of IPC were also invoked in the said crime on 01.03.2017.
17.21 During the investigation all the suspected fake Indian Currency notes recovered from the accused persons were sent to the Currency Note press (CNP), Nashik, Maharashtra for expert opinion. Their reports have since been received confirming that the notes are counterfeited.
17.22 At the instance of accused Umang Adiyecha (A-5), fake Indian currency notes of face value Of Rs. 3.92 Crore and Other material used for printing/packing the said fake notes were recovered from a Skoda Car car no. GJ-1-KA-8551 parked in open space in front of Akhil-A Apartment, Sukhsagar, Behind Punit Nagar, Rajkot on 03.03.2017, by using key provided by Mrs. Kiranben (mother of accused Ketan Dave).
17.23. The duplicate copies of invoices & entries made on register related to sell of printers to accused were taken over from the owner of shop viz. 'Printer House', Rajkot. Similarly, duplicate copies of invoices related to sell of one printer of HP Company was taken over from the Manager of Croma Showroom, Rajkot. The said printers have been seized on 01.03.2017 from above said Ritz car used by accused Ketan S. Dave (A-1) and one printer was taken over under production cum seizure memo from the owner of shop viz. 'Printer House', Rajkot.
17.24 Accused Ketan Dave (A-1) had informed that photograph of bundles of FICN was taken in his mobile phone along with his right hand fingers showing three rings worn by him and so that he can show the said photo to prove that he has so much of cash with him to gain confidence Of the person ready to do RTGS. The said three rings were handed over to family Of accused Ketan S. Dave (A-1) after his arrest by arresting officer. However, for further investigation, as directed by I.0, Mrs. Kiranben, mother Of accused Ketan Dave (A-1) produced the said three rings & the same were seized under panchanama on 11.03.2017.
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17.25 After taking over the above three rings, a panchnama
taking sample photographs of accused Ketan Dave (A1) after wearing said three rings was drawn in presence of independent witnesses on 18.03.2017. Subsequently, printout of the photographs was taken from Colour Lab, Rajkot On 18.03.2017.
18. Charge:
That a conspiracy was hatched by the accused A-1 to A-6 , after demonetisation in November,2016, to make use of the fake Indian currency notes printed by them in huge quantity as genuine, and gain confidence of the persons in need of cash to exchange their demonetised unaccounted money against newly introduced Indian currency. The said fake Indian Currency notes printed by the accused persons were shown to the people with sole intention to convince them that they are in possession of newly introduced currency. They, convinced people to make payment by RTGS in their designated bank account and cheated them by not refunding their money in cash even after receiving the funds in the bank account of the accused and committed offence u/s. 120(B), 420, 201, 489A, 489B, 489C, 489D, 468 and 471 of the Indian Penal Code, 1860."
ANALYSIS: 15 Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls for our consideration is whether the accused appellant should be released on bail on the ground that his fundamental right to have a speedy trial, as enshrined under Article 21 of the Constitution, could be said to have been infringed.
16 Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the Page 14 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.
17 The Supreme Court in the case of State through CBI Vs. Dr. Narayan Waman Nerukar and another reported in (2002) 7 SCC 6 has observed as under:
"6. "Recently a 7-Judges Bench of this Court in P. Ramachandra Rao vs. State of Karnataka held as under:(SCC pp.587-88,para 1) "No person shall be deprived of his life or his personal liberty except according to procedure established by law-declares Article 21 of the Constitution. 'Life and liberty', the words employed in shaping Article 21, by the founding fathers of the Constitution, are not to be read narrowly in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningfully. Embarking upon the interpretation thereof, feeling the heart-throb of the Preamble, deriving strength from the Directive Principles of state policy and alive to their constitutional obligation, the courts have allowed Article 21 to stretch its arms as wide as it legitimately can. The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re-trial - in short, everything commencing with an accusation and expiring with the final verdict the two being respectively the terminus a quo and terminus ad quem of the journey which an accused must necessarily undertake once faced with an implication. The constitutional philosophy propounded as right to speedy trial has though grown in age by almost two and a half decades, the goal sought to be achieved is yet a far off peak. Myriad fact-situations bearing testimony to denial of such fundamental right to the accused persons, on account of failure on the part of prosecuting agencies and executive to act, and their turning an almost blind eye at securing expeditious and speedy trial so as to satisfy the mandate of Article 21 of the Constitution have persuaded this Court in devising solutions which go to the extent of almost enacting, by judicial verdict bars of limitation beyond which the trial shall not proceed and the arm of law shall lose its hold. In its zeal to protect the right to speedy trial of an accused, can the court devise and almost enact such bars of limitation though the Legislature and the statutes have not chosen to do Page 15 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 so - is a question of far-reaching implications which has led to the constitution of this bench of seven-judge strength."
7. It was held that the decisions in the two "Common Cause" cases and Raj Deo Sharma v. State of Bihar and Raj Deo Sharma (II) v. State of Bihar, were not correctly decided on certain aspects. It is neither advisable nor feasible, nor judicially permissible or draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in the aforesaid four cases could not have been so prescribed or drawn and, therefore, are not good law. Criminal courts are not obliged to terminate trial of criminal proceedings merely on account of lapse of time, as prescribed by the directions made in the aforesaid cases.
8. As was observed in P. Ramchandra Rao's case (supra), at the most periods of time prescribed in those decisions can be taken by the Courts in seisin of the trial or proceedings to act as reminder when they may be persuaded to apply to their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration several relevant factors as pointed in A.R. Antulay's case (supra) and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time limits cannot and will not be treated by any court as a bar to further trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused.
9. While considering the question of delay the court has a duty to see whether the prolongation was on account of any delaying tactics adopted by the accused and other relevant aspects which contributed to the delay. Number of witnesses examined, volume of documents likely to be exhibited, nature and complexity of the offence which is under investigation or adjudication are some of the relevant factors. There can be no empirical formula of universal application in such matters. Each case has to be judged in its own background and special features if any. No generalization is possible and should be done. It has also to be borne in mind that the criminal courts exercise available powers such as those under Sections 309, 311 and 258 of the Cr.P.C. to effectuate right to speedy trial.
18 The Supreme Court in the case of Mahendra Lal Das vs. State of Bihar and others reported in (2001) Cri.L.J. 4718 has observed as under:
Page 16 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 "Abdul Rehman Antulay & Ors. v. R.S. Nayak & Anr, [ 1992] 1 SCC 225 while interpreting the scope of Article 21 of the Constitution held that every citizen has a right of speedy trial of the case pending against him. The speedy trial was considered also in public interest as it serves the social interest also. It is in the interest of all concerned that guilty or innocence of the accused is determined as quickly as possible in the circumstances. The right to speedy trial encompasses all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and re-trial. While determining the alleged delay, the court has to decide each case on its facts having regard to all attending circumstances including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions, etc. Every delay may not be taken as causing prejudice to the accused but the alleged delay has to be considered in the totality of the circumstances and the general conspectus of the case. Inordinate long delay can be taken as a presentive proof of prejudice."
22. In Hussainara Khatoon's case (AIR 1979 SC 1360) (supra), the Hon'ble Apex Court gave anxious consideration to the pathetic plight of under trial prisoners languishing in jail for years together and held that any procedure which would not ensure a speedy trial could not be regarded as reasonable, fair or just and that the right of an accused to speedy trial rather 'a reasonably expeditious trial' is imbibed in Article 21 of the Constitution of India. In paragraph 5 thereunder, it was held thus :-
"We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India (AIR 1978 SC 597). We have held in that case that article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be 'reasonable, fair and just'. If a person is deprived of his liberty under a procedure which is not 'reasonable, fair or just', such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, far or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21."Page 17 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021
R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 In Abdul Rehman Antulay's case (AIR 1992 SC 1701) (supra), a Constitution Bench of the Hon'ble Supreme Court held that right to speedy trial is part of fair, just and reasonable procedure implicit in Article 21 and is reflected in S. 309, Cr. P. C. and that the said right comprehends all stages viz., investigation, inquiry, trial, appeal, revision and retrial. In paragraph 81, it was held :
"81. Article 21 declares that no person shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The main procedural law in this country is the Code of Criminal Procedure, 1973. Several other enactments too contain many a procedural provision. After Maneka Gandhi v. Union of India (AIR 1978 SC 597), it can hardly be disputed that the 'law' (which has to be understood in the sense the expression has been defined in clause (3)(a) of Article 3 of the Constitution) in Article 21 has to answer the test of reasonableness and fairness inherent in Articles 19 and 14. In other words, such law should provide a procedure which is fair, reasonable and just. Then alone, would it be in consonance with the command of Article 21. Indeed, wherever necessary, such fairness must be read into such law. Now, can it be said that a law which does not provide for a reasonably prompt investigation, trial and conclusion of a criminal case is fair, just and reasonable? It is both in the interest of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty, he ought to be declared so. Social interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt or innocence) must be arrived at with reasonable despatch - reasonable in all the circumstances of the case. Since it is the accused who is charged with the offence and is also the person whose life and/or liberty is at peril, it is but fair to say that he has a right to be tried speedily. Correspondingly, it is the obligation of the State to respect and ensure this right. It needs no emphasis to say, the very fact of being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes. In Abdul Rehman Antulay's case (AIR 1992 SC 1701) (supra), a Constitution Bench of the Hon'ble Supreme Court held that right to speedy trial is part of fair, just and reasonable procedure implicit in Article 21 and is reflected in S. 309, Cr. P. C. and that the said right comprehends all stages viz., investigation, inquiry, trial, appeal, revision and retrial. In paragraph 81, it was held :
"81. Article 21 declares that no person shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The main procedural law in this country is the Code of Criminal Procedure, 1973. Several other enactments too contain many a procedural provision.Page 18 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021
R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 After Maneka Gandhi v. Union of India (AIR 1978 SC 597), it can hardly be disputed that the 'law' (which has to be understood in the sense the expression has been defined in clause (3)(a) of Article 3 of the Constitution) in Article 21 has to answer the test of reasonableness and fairness inherent in Articles 19 and 14. In other words, such law should provide a procedure which is fair, reasonable and just. Then alone, would it be in consonance with the command of Article 21. Indeed, wherever necessary, such fairness must be read into such law. Now, can it be said that a law which does not provide for a reasonably prompt investigation, trial and conclusion of a criminal case is fair, just and reasonable? It is both in the interest of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty, he ought to be declared so. Social interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt or innocence) must be arrived at with reasonable despatch - reasonable in all the circumstances of the case. Since it is the accused who is charged with the offence and is also the person whose life and/or liberty is at peril, it is but fair to say that he has a right to be tried speedily. Correspondingly, it is the obligation of the State to respect and ensure this right. It needs no emphasis to say, the very fact of being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes. (Emphasis added) In paragraph 86, it was held thus :
"86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are :
(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily.
Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves that social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
(2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.
(3) The concerns underlying the right to speedy trial from the point of Page 19 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 view of the accused are :
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or nonavailability of witnesses or otherwise.
(4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really works against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous.
Very often these stays are obtained on ex parte representation.
(5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the Court concerned, prevailing local conditions and so on - What is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
(6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed Page 20 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 by Powell, J. in Barker (1972) 33 Law Ed "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by White, J. in U.S. v. Ewell (1966) 15 Law Ed in the following words :
'....... the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.' However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.
(7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the Court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.
(8) Ultimately, the Court has to balance and weigh the several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the right to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the Court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the Court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded - as may be deemed just and equitable in the circumstances of the case.
(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the Page 21 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 duty of the Court to weigh all the circumstances of a given can before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.
(11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis."
19 In P. Ramachandra Rao's case (AIR 2002 SC 1856) (supra), a Seven Judges Bench of the Hon'ble Supreme Court held that the criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. In paragraph 29 in P. Ramachandra Rao's case (supra), the Hon'ble Supreme Court upheld and reaffirmed the propositions laid down in the matter of speedy trial in Abdul Rehman Autulay's case (AIR 1992 SC 1701) (supra). It was held thus :
"The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A. R. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions."
In paragraph 29(5) thereunder, it was held :
"The criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482, Cr. P.C. and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. " (Emphasis added) Page 22 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021
20 In Pankaj Kumar's case (AIR 2008 SC 3077) (supra), the Hon'ble Supreme Court even considered the question of the duty of the Court on infringement of the right to speedy trial. In the light of the aforesaid decisions of the Hon'ble Supreme Court, the contra contention of the National Investigation Agency to the appellant's contention that the right to speedy trial is a fundamental right guaranteed under Article 21 of the Constitution of India can only be a claptrap and therefore, it must fail. In short, speedy trial is undoubtely a right flowing from Article 21 of the Constitution of India.
In A. R. Antulay's case (AIR 1992 SC 1701) (supra), the Hon'ble Supreme Court observed that the very fact of being accused to a crime is a cause for concern and it affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. It is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes. Right to life means right to live with full human dignity, without humuliation and deprivation or degradation of any sort. The impact of being an accused is evident from the aforequoted observations of the Hon'ble Supreme Court and therefore, there can be no doubt that the tag of 'accused' would deprive a man the right to live with full human dignity. It is these facets and factors that fetched 'fair trial' the recognition as a human right. Speedy trial is an integral part of fair trial. Therefore, we are of the view that the right to speedy trial is also a human right and no civilized society can deny the same to an accused. Furthermore, it should always be the concern of the society to see that a real culprit is given the condign punishment at the earliest and also to see that an accused is given an early opportunity to clear the cloud of suspicion shrouded around him and to remove the tag of 'accused'. The said purpose in view that is founded on social interest could not be Page 23 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 achieved if trial is unduly delayed as trial is the sole device to decide the guilt or innocence of an accused. Therefore, while considering the grievance of denial of speedy trial, the decision in Zahira Habibulla H. Shaikh's case (AIR 2004 SC 3114) (supra) has to be borne in mind. At the same time, the propositions laid in the form of guidelines, as observed by the Hon'ble Supreme Court, in A. R. Antulay's case (AIR 1992 SC 1701) (supra), more particularly, the first and eighth propositions are also to be borne in mind. At the risk of repetition we may advert to and quote the said propositions. They read thus :
"(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily.
Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
(8) Ultimately, the Court has to balance and weigh the several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the right to speedy trial has been denied in a given case."
21 We may also refer to and rely upon a recent pronouncement of the Bombay High Court in the case of The National Investigation Agency vs. Areeb Ejaz Majeed [Criminal Appeal No.389 of 2020 decided on 23 rd February 2021], wherein the Court observed as under:
"29. But, the case of the respondent on the second aspect of the matter appears to be on firm footing. There is no dispute about the fact that right to fair and speedy trial is a right recognized under Article 21 of the Constitution of India. The Hon'ble Supreme Court and various High Courts, including this court, have consistently held that the undertrials cannot be allowed to languish for years together in jail, while the trials proceed at snail's pace. If ultimately, the accused are found to be not guilty, the number of years, months and days spent by such accused as undertrials in jail, can never be given back to them and this is certainly Page 24 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 a violation of their valuable right under Article 21 of the Constitution of India. Therefore, right to speedy trial has been recognized and reaffirmed consistently by the judgments of the superior courts.
30. In cases where the accused are facing charges under Special Acts like UAPA, parameters for grant of bail are more stringent, as a consequence of which, the undertrials in such cases remain in custody while the trials are pending. This is because they are accused in serious and heinous offences and their rights are required to be balanced with the rights of the society and citizens at large. The courts are required to perform a balancing act, so as to ensure that a golden mean is reached between the rights of the individual and those of the society at large.
31. It is in the context of Special Acts that the Hon'ble Supreme Court in the case of Shaheen Welfare Association (supra) held that the long time taken by courts in disposal of the cases would justify invoking Article 21 of the Constitution of India to issue directions to release the undertrials on bail. The said judgment was rendered in the context of TADA, which also had stringent provisions with regard to grant of bail. Although, it was stated in the said judgment itself that the directions given therein were in the form of one time measure, the said judgment has been recognized as having laid down principles for grant of bail to undertrials, who could be classified in different categories.
32. It has been held in the said judgment that the undertrials could be categorized into three categories, depending upon the role with which they were charged in the context of special provisions of TADA. It was held that those categorized in category (a) were hardcore criminals, whose release would prejudice the prosecution case, apart from being a menace to the society and they could not be given liberal treatment. But, it was held that the other undertrials who could be categorized in category (b), (c) and (d) could be dealt with differently and depending upon the duration that they had spent in custody, they could be released on bail subject to specific conditions.
33. In the present case, the NIA Court has categorized the respondent in category (b) and, by applying the ratio of Shaheen Welfare Association (supra), it has been held that since the respondent has spent more than five years in jail as an undertrial, he deserved to be granted bail, subject to two stipulations being satisfied. It was found that these two stipulations were firstly, that there was no likelihood of the trial being completed in the next six months, and secondly, that the respondent did not have any antecedents or that, if released, he would not be harmful to the complainant and witnesses or their family members.
34. It needs to be examined that whether the NIA Court was justified in Page 25 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 holding that the respondent could be categorized in category (b) as indicated in the judgment of Shaheen Welfare Association (supra) and further as to whether he satisfied the aforesaid two stipulations.
35. In the present case, the respondent has been charged with offences under Sections 16 and 18 of the UAPA apart from Section 125 of the IPC. There is no dispute about the fact that the charge under Section 20 of the UAPA was not framed by the NIA Court itself against the respondent despite the fact that offence under the said section was registered against him. Section 16 of the UAPA pertains to punishment for a terrorist act and it is specified therein that if death has resulted as a consequence of such terrorist act, the accused could be punished with sentence of death or imprisonment for life. It was further specified that in any other case, the sentence could be imprisonment for life or for a sentence, which shall be not less than five years. Section 18 of the UAPA pertains to punishment for conspiracy and there also it is provided that the sentence could range between five years and imprisonment for life. In the present case, the respondent has been charged on the basis that he along with the absconding co- accused committed terrorist acts in Iraq and Syria and further that he actively took part in such acts with the intention to strike terror in the minds of the people. He also stood charged under Section 125 of the IPC for waging war against the Governments of Iraq and Syria, who happen to be friendly nations with India. There is also reference made on behalf of the NIA to the fact that the respondent had allegedly returned to India with an intention to carry out terrorist activities in India, including blowing up of Police Headquarters at Mumbai. In any case, no death was caused by the alleged plans hatched by the respondent, since he was arrested the moment he landed in India.
36. In this backdrop, it cannot be said that the NIA Court committed an error in categorizing the respondent in category (b) above and thereby applying stipulations laid down in the judgment of the Hon'ble Supreme Court in Shaheen Welfare Association (supra). There is no dispute about the fact that the respondent has remained in custody as an undertrial for more than six years now. The process of examining 51 witnesses has taken more than five years and admittedly there are 107 more witnesses to be examined by the prosecution. Therefore, there is no likelihood of the trial being completed within the next six months. It is an admitted position that the proceedings under the NIA Act are undertaken by the NIA Court once in every week and that the said court is also dealing with cases pertaining to other Special Acts like the MCOCA, TADA, POTA, etc. Therefore, there is every likelihood of the trial continuing for the next few years. There is also no dispute about the fact that even if convicted for the offence with which the respondent is charged, he could be sentenced for imprisonment for a period ranging between five years and life imprisonment. It is crucial that the respondent has undergone more than six years as an Page 26 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 undertrial.
37. Considering the aforesaid facts, it needs to be examined as to whether the law laid down by the Hon'ble Supreme Court in the context of granting bail to undertrials, who have already undergone incarceration for number of years, needs to be applied in the case of respondent. In this context, it is necessary to keep in mind that the respondent is accused of offences under the Special Act i.e. the UAPA.
38. It is in this context of the aforesaid Special Act like the UAPA that the Hon'ble Supreme Court has rendered the latest pronouncement in the case of K.A. Najeeb (supra). While considering the stringent provisions of the Special Acts i.e. the UAPA pertaining to bail, the Hon'ble Supreme Court has held as follows:
"18. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."
39. Apart from the fact that the Constitutional Courts can certainly take note of violation of fundamental rights guaranteed under Part III of the Constitution of India, particularly the right to life under Article 21 of the Constitution in the context of right to speedy trial, it is specifically held that the rigours of stringent provisions of bail as found in Section 43D(5) of the UAPA would melt down where there is no likelihood of the trial being completed in a reasonable time and the period of incarceration already undergone exceeds substantial part of the prescribed sentence. This is an aspect which becomes significant in the facts of the present case. We are conscious of the fact that even a sentence of life imprisonment can be imposed for the offence with which, the respondent has been charged under the UAPA and the IPC but, we cannot ignore the fact that the sentence could range between five years to imprisonment for life. This is particularly significant in the backdrop of the fact that the respondent has admittedly already undergone incarceration for more than six years while the trial is Page 27 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 underway before the NIA Court. Looking to the pace at which about 51 witnesses have been examined, which took more than five years for the NIA Court, there is clearly no likelihood of the trial being completed within a reasonable time in the near future. Therefore, we are of the opinion that on this aspect, no error can be attributed to the impugned judgment and order passed by the NIA Court, while holding in favour of the respondent.
40. The other aspect of the matter is, as to whether it can be said that releasing the respondent would amount to prejudicially affecting the trial and whether there would be possibility of influencing the witnesses and tampering with the evidence. We have observed that the respondent is an educated person, who was completing his graduation in Civil Engineering when he left for Iraq at the age of 21 years. He categorically stated before us that as a 21 year old, he was carried away and that he had committed a serious mistake, for which he had already spent more than six years behind bars. In the past more than six years of his incarceration, the respondent has argued his case on his own before the NIA Court. He represented his own case before this Court as well as the NIA Court and we could find that he was presenting his case by maintaining decorum and in a proper manner. During the course of hearing, it transpired that his father is a doctor of Unani medicine and his sisters are also doctors. His brother is an engineer. This shows that he comes from an educated family and that if stringent conditions are imposed upon him, with an undertaking to cooperate with the trial proceedings before the NIA Court, his release on bail may not be harmful to the society at large and it would not adversely affect the trial proceedings before the NIA Court.
41. Therefore, we are of the opinion that on the second aspect of the matter, the findings rendered by the NIA Court need to be upheld. In view of the above, although we have held that the findings rendered by the NIA Court on the merits of the matter in the impugned judgment and order are unsustainable and consequently they are set aside, on the second aspect of the matter pertaining to the long pendency of the trial and the respondent having already undergone incarceration for more than six years, we are inclined to uphold the impugned order on the said ground. Yet, we intend to impose further stringent conditions on the respondent while upholding his release on bail. Consequently, part of the impugned order deserves to be modified by imposition of further conditions. Hence, the following order:"
22 Thus, the Bombay High Court ordered release of the accused on the ground that he had already undergone incarceration of more than six years and likelihood of the trial being concluded in near future was Page 28 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 very remote.
23 In the Bombay High Court judgement referred to above, we find reference of the order passed by the Supreme Court in the case of K. A. Najeeb (supra). We should look into the order passed by the Hon'ble Supreme Court in the case of the Union of India vs. K. A. Najeeb [Criminal Appeal No.98 of 2021 decided on 1 st February 2021]. We quote the relevant observations as under:
"12. The High Court's view draws support from a batch of decisions of this Court, including in Shaheen Welfare Association (supra), laying down that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail. It would be useful to quote the following observations from the cited case:
"10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] , on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21." (emphasis supplied)
13. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS") which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi) [(1999)9 SCC 252, Babba alias Shankar Raghuman Rohida v. State of Maharashtra [(2005) 11 SCC 569] and Umarmia alias Mamumia v. State of Gujarat [(2017) 2 SCC 731] enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.
14. We may also refer to the orders enlarging similarly- situated accused under the UAPA passed by this Court in Angela Harish Page 29 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 Sontakke v. State of Maharashtra [SLP (Crl.) No.6888 of 2015 order dated 4th May 2016]. That was also a case under Sections 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39 and 40(2) of the UAPA. This Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years' incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43-D(5) of UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of Maharashtra [SLP (Crl) No.7947 of 2015 order dated 3rd January 2017], an accused under the UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined.
15. The facts of the instant case are more egregious than these two above-cited instances. Not only has the respondent been in jail for much more than five years, but there are 276 witnesses left to be examined. Charges have been framed only on 27.11.2020. Still further, two opportunities were given to the appellant-NIA who has shown no inclination to screen its endless list of witnesses. It also deserves mention that of the thirteen co-accused who have been convicted, none have been given a sentence of more than eight years' rigorous imprisonment. It can therefore be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. Given that two-third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice.
16. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India [(1994) 6 SCC 731], it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.
17. As regard to the judgment in NIA v. Zahoor Ahmad Shah Watali (supra), cited by learned ASG, we find that it dealt with an entirely different factual matrix. In that case, the High Court had re-appreciated the entire evidence on record to overturn the Special Court's conclusion of their being a prima facie case of conviction and concomitant Page 30 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 rejection of bail. The High Court had practically conducted a mini-trial and determined admissibility of certain evidences, which exceeded the limited scope of a bail petition. This not only was beyond the statutory mandate of a prima facie assessment under Section 43-D(5), but it was premature and possibly would have prejudiced the trial itself. It was in these circumstances that this Court intervened and cancelled the bail.
18. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.
19. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected.
20. Yet another reason which persuades us to enlarge the Respondent on bail is that Section 43-D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS. Unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such pre-condition under the UAPA. Instead, Section 43-D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc. CONCLUSION Page 31 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021
21. In light of the above discussion, we are not inclined to interfere with the impugned order. However, we feel that besides the conditions to be imposed by the trial Court while releasing the respondent, it would serve the best interest of justice and the society-at-large to impose some additional conditions that the respondent shall mark his presence every week on Monday at 10AM at the local police station and inform in writing that he is not involved in any other new crime. The respondent shall also refrain from participating in any activity which might enrage communal sentiments. In case the respondent is found to have violated any of his bail conditions or attempted to have tampered the evidence, influence witnesses, or hamper the trial in any other way, then the Special Court shall be at liberty to cancel his bail forthwith.
The appeal is accordingly dismissed subject to above-stated directions."
24 Thus, the Supreme Court held that although it was conscious of the fact that the charges levelled against the Najeeb are grave and a serious threat to societal harmony and the plea of bail could have been declined at the threshold, yet keeping in mind the length of the period spent in the custody and the unlikelihood of the trial being completed at any time in near future, the High Court was justified that it was left with no other option, except to grant bail. K.A. Najeeb was one of the co- accused along with the other members of the Popular Front of India. He was allegedly involved in an incident in 2010 where a group chopped off the hand of a Malayalam Professor and hurled bombs at the bystanders. The attackers believed that the question paper set by the Professor for his college exam was blasphemous and offended Holy Prophet Mohammed. After absconding from the police for five years, Najeeb was finally arrested in 2015. His bail applications between 2016 and 2021 were repeatedly rejected. Finally, the Kerala High Court granted him bail as he had already served four years as an undertrial prisoner. The speedy trial mandated under the National Investigative Agency Act, 2008 was not met. The State in its appeal before the Supreme Court asserted that the High Court was wrong in granting bail to Najeeb. On behalf of Union of India, it was argued that the normal bail granting standards under the criminal law would be inapplicable for the offences under the UAPA or Page 32 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 other special laws. It was further argued that the National Investigative Agency ('NIA') had prima facie evidence of Najeeb's involvement and culpability. It was argued on behalf of Najeeb that most of the co- accused, in the case, were acquitted. Even those who were found guilty did not get sentence of more than eight years. Najeeb had been kept in prison for over five and a half years without a trial. This violated his fundamental right to a speedy trial and access to justice. The five and half years Najeeb spent as an undertrial prisoner became a crucial factor. The Court invoked Shaheen Welfare Association v. Union of India (supra) to hold that the 'gross delay' in trial violates the right to life and personal liberty under Article 21. A fundamental right violation could be used as a ground for granting bail. Even if the case is under a stringent criminal legislation including the anti-terror laws, prolonged delay in a trial necessitates granting of bail.
25 We may also refer to and rely upon a recent order passed by a Division Bench of the Calcutta High Court passed in the C.R.M. No.9314 of 2020 decided on 27th November 2020. In the said case, the Court considered the question whether the restrictions imposed by Section 37 of the NDPS Act are over ridden by the operation of the directions issued by the Supreme Court in Supreme Court Legal Aid Committee vs. Union of India (1994) 6 SCC 731 in the matter of grant of bail to the undertrials in the NDPS cases. In the said case, the accused was in custody past five years and six months and only two witnesses had been examined till the date the High Court passed the order of bail. Relying on the ratio laid down in Supreme Court Legal Aid Committee (supra), the accused therein pressed for bail. It was argued on behalf of the Union of India that no law under Article 141 of the Constitution was declared in the decision of the Supreme Court in the case of Supreme Court Legal Aid Committee (supra) and only "one time direction" was Page 33 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 issued. It was further argued that the inordinate delay in trial may entitle the undertrials to apply for bail only after due compliance of the requirements under Section 436A of the Code of Criminal Procedure and not otherwise. The Division Bench of the Calcutta High Court, while releasing the accused on bail, held as under:
"Right of bail to an under-trial flows from Article 21 of the Constitution of India which frowns upon unnecessary and prolonged detention pending judicial adjudication of guilt. Nonetheless, discretion to grant bail to an accused is circumscribed by the "procedure established by law". NDPS Act was promulgated essentially for detection, investigation and prosecution of offences under Narcotic Psychotropic Act. In view of the grave nature of offences involving trafficking of narcotics in commercial quantities, the law engrafts strict restrictions under Section 37 of the Act on the Court ‟s discretion tos discretion to grant bail. Section 37 of the Act reads as follows:-
"37. Offences to be cognizable and non-bailable.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be cognizable;
(b)no person accused of an offence punishable for offences under Section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless -
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
2. The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
As per the provision, if the prosecutor opposes the prayer for bail, an onerous duty is cast on the accused to satisfy the Court there are Page 34 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 reasonable grounds to believe that he is not guilty of the alleged offence and shall not commit similar offence while on bail. The Apex Court has unequivocally held the expression "reasonable ground" must mean "prima facie ground". [See State of Kerala vs. Rajesh. AIR 2020 SC 721 (Para 21)]. Charge in this case involves possession of narcotic substances above commercial quantity. Hence, to obtain bail on merits, the petitioner would require to overcome the hurdle of satisfying the Court with regard to the twin requirements, as aforesaid. However, in the present case, the petitioner has sought bail not on merits but on the score of inordinate delay in trial which infracts his fundamental rights under Sections 14 and 21 of the Constitution of India. In rebuttal, it has been argued unless the petitioner has undergone half of the maxim sentence as envisaged under Section 436A of the Code of Criminal Procedure, no such right can be said to have fructified in his favour. That apart, contribution of the petitioner and other accused persons in the delay must also be taken into consideration. In this regard learned Additional Solicitor General drew our attention to the observation of the Apex Court in the cited decision holding deprivation of liberty by the accused persons who have suffered half of the maximum punishment provided for the offence can be held to be violative of Articles 14 and 21 of the Constitution.
We are unable to accept the contentions of the learned Additional Solicitor General for the following reasons.
The Apex Court while dealing with the issue of grant of bail on the score of inordinate delay in disposal of trials, had taken into consideration the statutory restrictions under Section 37 of the NDPS Act and held as follows :
"15. ...we are conscious of the statutory provisions finding place in Section 37 of the Act, prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have averted to this Section in the earlier part of the judgement. 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 vs. 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, A.R.Antulay vs. R.S. Nayek, released 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 Page 35 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 would also not be in consonance with the right guaranteed by Article 21."
Aforesaid ratio clearly curves out a separate niche for grant of bail to under trials on the score of inordinate delay in contradistinction to bail on merits. Exercise of judicial discretion in this domain stands on a completely different footing from grant of bail on merits which is circumscribed by the restrictions envisaged under section 37 of the Act.
Observation of the Court with regard to the under trials suffering half of the maximum sentence (as referred to by learned ASG) has to be read in the light of the subsequent directives issued by the court in NDPS cases. After analysis of the impact of inordinate and inexplicable delay on the fundamental rights of prisoners, the court explored the reliefs which may be made available to the incarcerated persons booked under NDPS Act:-
"The offences under the Act are grave and, therefore, we are not inclined to agree with the submission of the learned counsel for the petitioner that we should quash the prosecutions and set free the accused persons whose trials are delayed beyond reasonable time. Alternatively he contended that such accused likely to be further delayed should be released on bail on such terms as this Court considers appropriate to impose. This suggestion commends to us. We were told by the learned counsel for the State of Maharashtra that additional Special Courts have since been constituted by having regard to the large pendency of such cases in the State we are afraid this is not likely to make a significant dent in the huge pile of such cases. We, therefore, direct as under:-
(i)Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount.
(ii)Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs 50,000 Page 36 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 with two sureties for like amount.
(iii)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.
(iv) Where an undertrial accused is charged for the commission of an offence punishable under Sections 31 and 31-A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order".
It is argued that such directions were intended to operate as an "one time measure" in the State of Maharashtra. We, however, note that the directives were subsequently extended to the State of West Bengal and other States vide order dated 17th April, 1995 reported in 1995(4) SCC 695. We are of the view that the aforesaid directives of the Apex Court in the matter of grant of bail due to inordinate delay are required to be taken into consideration and similar relief is to be extended to all undertrials who stand on the same footing. Liberty is an inalienable right of every individual guaranteed by our Constitution and cannot be whittled down by arbitrary categorisation. "Procedure established by law" under Article 21 cannot be viewed in isolation from the principles of "equal justice" or "equality before law" enshrined under Article 14. To achieve such universal equality it is imperative that the directives laid down by the Court in the said report be extended to all undertrials who are similarly circumstanced and are suffering protracted detention throughout the length and breadth of the country. Selective approach to personal liberty is an anathema to our constitutional scheme. Hence, it is the duty of every Court including the High Courts when faced with the question of "bail or jail" to bear in mind the beholden principles of parity and equal access to justice. Courts need to rise above petty technicalities to preserve and restore liberty to all similarly circumstanced persons. Failure to do so, would create privileged oases of liberty accessible to few and denial of freedom to most.
This concern is poignantly highlighted by the Apex Court in Arnab Manoranjan Goswami Vs The State of Maharashtra & Ors. in Criminal Appeal No. 742 of 2020, wherein the Court held that the High Courts and the District Judiciaries are required to enforce the principle of "bail and not jail‟s discretion to in practice and not leave the court of last resort to intervene at all times. The Court observed that the remedy of bail is "an expression of the humanness of the criminal justice system" and it cannot be applied in an inverted manner. If we do not extend the wholesome directives in Supreme Court Legal Aid Committee (Supra) Page 37 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 to all under trials (in NDPS case) incarcerating in jail for more than five years, we would fail to discharge our constitutional duty to preserve personal liberty of citizens and apply the balm of humanness to those unfortunate undertrials who have failed to knock the door of the Apex Court.
We are conscious that delay may also be caused by an accused and it is nobody's case that such a litigant can derive benefit out of his own wrong. However, the principle of apportionment of responsibility in the matter of delay in trial must be counteracted in the backdrop of the constitutional duty of the State to ensure effective and speedy prosecution. The Constitution assures every individual the precious right of personal liberty and when it is forfeited by the State to ensure administration of criminal justice a heavy corresponding duty is cast on it to ensure speedy conclusion of trial minimizing under trial detention. Directives in Supreme Court Legal Aid Committee (Supra) are to be viewed from such perspective. These directions cannot be whittled down or restricted by the operation of Section 436 A Cr.P.C. The said provision is an expression of similar anxiety of the legislature to minimize under trial detention. The directives of the Apex Court relating to bail and section 436A operate in the same field and are supplementary to one another. To read one in derogative of the other would amount to restricting the right of under-trials to bail in the face of inordinate delay in trials and would frustrate the very spirit of the aforesaid law.
In this backdrop, we have gone through the records of the case and we do not find any special feature relating to contributory role of the petitioner in the inordinate delay in trial. Absence of forensic laboratories, under staffing in those laboratories, inadequate number of prosecutors and frequent transfer of official witnesses cause chronic delay in trial of narcotic cases. Adverting to such issues, the Apex Court in Thana Singh Vs. Central Bureau of Narcotics, (2013) 2 SCC 590 issued various directions to ensure speedy trial. Thana Singh (Supra) quoted with approval the directives Supreme Court Legal Aid Committee (Supra). In spite of such directions, there is little progress in the ground and the bleak picture of delay persist to haunt under trials.
In light of the aforesaid discussion, we are of the view that the directives in Supreme Court Legal Aid Committee (Supra) applies with full force to the facts of this case and the petitioner ought to be released on bail on the score of inordinate delay in trial infracting his fundamental rights under Articles 14 and 21 of the Constitution.
Accordingly, we direct that the petitioner shall be released on bail upon furnishing a bond of Rs. 2,00,000/- with ten sureties of Rs. 20,000/- each, one of whom must be local, to the satisfaction of the learned Judge, Special Court under NDPS Act, North 24 Pargans, Page 38 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 subject to the conditions that petitioner shall appear before the trial court on every date of hearing until further orders and shall not intimidate the witnesses and/or tamper with evidence in any manner whatsoever and on further condition that the petitioner, while on bail, shall remain within the jurisdiction of Gardenreach Police Station until further orders except for the purpose of investigation and/or for attending Court proceedings and shall report to the Officer-in-Charge of the concerned police station and Mr. Kalyan Das, Superintendent, Customs, AIU, Legal Section, Customs House, 15/1, Strand Road, Kolkata- 700 001, once in a week until further orders.
In the event the petitioner fails to appear before the trial court without justifiable cause, the trial court shall be at liberty to cancel his bail in accordance with law without further reference to this Court.
Under-trial detention in India is a chronic malady in the administration of criminal justice. 25th Edition of the Prison Statistics in India as per NCRB Report, 2019 shows that 69.5 per cent of prisoners in Indian jail are undertrials.
Under such circumstances and to ensure that equal justice is extended to all under trials who are incarcerated in jail for five years and more in NDPS cases, we direct the learned ASG as well as the learned Public Prosecutor, High Court, Calcutta to submit reports enumerating cases under NDPS Act where accused persons are in detention for five years or more."
26 We may also refer to the decision of the Supreme Court in the case of State of Kerala vs. Rasheed reported in (2019) 13 SCC 297, wherein the Supreme Court has laid down guidelines to be followed by the Trial Courts in the conduct of a criminal trial as far as possible:
"24.1 A detailed case-calendar must be prepared at the commencement of the trial after framing of charges;
24.2 The case-calendar must specify the dates on which the examination-in-chief and cross-examination (if required) of witnesses is to be conducted;
24.3 The case-calendar must keep in view the proposed order of production of witnesses by parties, expected time required for examination of witnesses, availability of witnesses at the relevant time, and convenience of both the prosecution as Page 39 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 well as the defence, as far as possible;
24.4 Testimony of witnesses deposing on the same subject-matter must be proximately scheduled;
24.5 The request for deferral under Section 231(2) of the Cr.P.C. must be preferably made before the preparation of the case-calendar;
24.6 The grant for request of deferral must be premised on sufficient reasons justifying the deferral of cross-examination of each witness, or set of witnesses;
24.7 While granting a request for deferral of cross-examination of any witness, the trial courts must specify a proximate date for the cross-examination of that witness, after the examination-in-chief of such witness(es) as has been prayed for;
24.8 The case-calendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary;
24.9 In cases where trial courts have granted a request for deferral, necessary steps must be taken to safeguard witnesses from being subjected to undue influence, harassment or intimidation."
27 After the receipt of the report forwarded by the Special Judge (NIA), Ahmedabad dated 28th July 2021 referred to above as regards the status of the Special Case No.1 of 2017, we once again called for some more information from the learned Special Judge (NIA). We have been informed by the learned Special Judge (NIA) that as on date, she is in- charge of almost seven trials under the NIA. We are further informed that the Special Judge is in the midst of the sensational Naroda Patia trial. This Naroda Patia trial has something to do with the riots of the year 2002 and is going on past couple of years. We have also been informed that besides being a Special Judge (NIA), she has to do other judicial work as a City Civil Judge and also the administrative work of the City Civil and Sessions Court.
Page 40 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021
28 In such circumstances referred to above, we are left with no other
option, but to make a humble request to Honourable the Chief Justice to consider recommending the Central Government to appoint at least two Additional Judges to the Special Court as provided under Section 11(6) of the Act, 2008. We quote Section 11 of the Act, 2008, which falls in Chapter IV titled "Special Courts" as under:
"11. Power of Central Government to constitute Special Courts.
(6) The Central Government may, if required, appoint an additional Judge or additional Judges to the Special Court, on the recommendation of the Chief Justice of the High Court."
29 We make a humble request to Honourable the Chief Justice to consider our aforesaid request so that the trial can proceed expeditiously and the undertrial accused may not have to languish in jail for a long period.
30 We also take notice of the fact as pointed out by Mr. Pandya that the main accused in the present case is on bail. We may clarify that the main accused got the benefit of default bail as the chargesheet could not be filed within the statutory time period. However, the fact remains that out of six accused chargeseheeted, three are on bail and one of those is the main accused.
31 We were inclined to release the accused appellant on bail by imposing appropriate conditions, however, we would like to observe for three more months how the trial progresses further. On expiry of three months, if we find that the status is the same, we will have to consider releasing the accused appellant on bail.
Page 41 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 32 Before we part with this order, we would like to say something,
which, in our opinion, is very essential. We fail to understand why the prosecuting agency has to examine 40 - 50 - 60 witnesses in a trial. We are conscious of the fact that the special public prosecutor could be said to be in-charge and master of the trial, but, at the same time, it is expected of the Special Public Prosecutor to exercise his discretion when it comes to examination of the prosecution witnesses. It is well settled that it is the quality of the evidence that matters and not the quantity. If the case of the prosecution could be established by examining 10 witnesses, then what is the need to examine 30 witnesses. At the cost of repetition, we state that it is not the quantity but quality of the evidence which matters. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement of law of evidence that any particular number of witnesses is to be examined to prove / disprove a fact. The guilt of an accused may be proved even by the testimony of a single witness, if such witness is found to be wholly reliable. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if the Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subordination of witnesses.
33 Where the number of witnesses is large, it is not, in our opinion, necessary that everyone should be produced. In this connection, we may refer to Malak Khan vs. Emperor [AIR 1946 Privy Council 16] where their Lordships observed as follows at page 19 :
"It is no doubt very important that, as a general rule, all Crown witnesses should be called to testify at the hearing of a prosecution, but important as it is, there is no obligation compelling counsel for the prosecution to call all witnesses who speak to facts which the Crown desire to prove. Ultimately it is a matter for the discretion of counsel for Page 42 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021 R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 the prosecution and though a Court ought, and no doubt will, take into consideration the absence of witnesses whose testimony would be expected, it must judge the evidence as a whole and arrive at its conclusion accordingly taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witnesses."
34 In this regard, the role of the Special Judge (NIA) would also assume importance. The Special Judge should inquire with the Special Public Prosecutor why he intends to examine a particular witness if such witness is going to depose the very same thing which any other witness might have deposed earlier. We may sound as if laying some guidelines, but time has come to consider this issue of delay and bail in its true and proper perspective. If an accused is to get a final verdict after incarceration of six to seven years in jail as an undertrial prisoner, then, definitely, it could be said that his right to have a speedy trial under Article 21 of the Constitution has been infringed. The stress of long trials on accused persons - who remain innocent until proven guilty - can also be significant. Accused persons are not financially compensated for what might be a lengthy period of pre-trial incarceration. They may also have lost a job or accommodation, experienced damage to personal relationships while incarcerated, and spent a considerable amount of money on legal fees. If an accused person is found not guilty, they have likely endured many months of being stigmatized and perhaps even ostracized in their community and will have to rebuild their lives with their own resources.
35 We would say that [delays] are bad for the accused and extremely bad for the victims, for Indian society and for the credibility of our justice system, which is valued. Judges are the masters of their Courtrooms and the Criminal Procedure Code provides many tools for the Judges to use in order to ensure that cases proceed efficiently.
Page 43 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021R/CR.A/961/2021 JUDGMENT DATED: 06/08/2021 36 In view of the aforesaid, we adjourn this appeal for a period of
three months so as to observe how the trial progresses further in next three months. Post this matter on 22nd November 2021 before this Bench (Coram : J. B. Pardiwala and V. D. Nanavati, JJ.). We treat this matter as part heard.
37 We direct the Registry to call for the report as regards the status of NIA Special Case No.1 of 2017 from the Special Judge (NIA) one week before the next listing. The report should reach the Registry by 18 th November 2021. We also direct the Registry to place this judgement before Honourable the Chief Justice.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) CHANDRESH Page 44 of 44 Downloaded on : Thu Sep 09 06:52:32 IST 2021