Bombay High Court
Iqbal Mohammed Memon vs State Of Maharashtra on 29 January, 1996
Equivalent citations: 1996CRILJ2418, 1997(1)MHLJ790
Author: Vishnu Sahai
Bench: Vishnu Sahai
ORDER
1. By means of this Criminal Revision, the applicant has impugned the order dated 7-11-1994 passed by the Additional Sessions Judge, Bombay and Special Judge (Narcotics) For Greater Bombay, rejecting his application for discharge under Section 227 of the Cr.P.C. in a case under Section 8(c) read with Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (1985) hereinafter referred to as the NDPS Acts.
2. A short reference to the factual matrix from which this Criminal Revision arises is necessary for its disposal.
On 2-9-1993, on receipt of a reliable information, an abandoned jeep was found in the parking lot in front of "Jewel of India" Hotel, Worli, Bombay. When searched, it was found to contain 150 kgs mandrax tablets which were seized under a panchanama. An offence under Section 8(c) r/w 21, 29 of the NDPS Act, 1985 was registered with the Narcotic Cell, CB CID, Bombay, vide C.R. No. 38/1993. Investigation revealed involvement of a number of persons and pursuant to it, more mandrax tablets and methaqualene powder came to be recovered at the instance of various accused persons. The entire haul was 2027.750 kgs of mandrax tablets and methaqualene powder, valued at Rs. 2,02,77,500/- in the international market. According to prosecution, in C.R. No. 38/1993 in all 14 persons are involved.
Despite the best efforts of the prosecution, the applicant could not be arrested as he was in Dubai since 1985-1986. On 30-11-1993, the charge-sheet was submitted under Sections 8(c) read with Sections 21 and 29 of the NDPS Act against eight persons and in the same, six persons including the applicant were shown as absconding.
On the basis of the charge sheet, Special Case No. 170/1993 was registered in the Court of the Additional Sessions Judge Bombay and Special Judge, Narcotics for Greater Bombay.
3. On 12-1-1994, pursuant to an application made by the investigating agency, the Special Judge, Greater Bombay issued a non-bailable warrant of arrest against the applicant but the same could not be executed as he was absconding. The learned Judge also issued a proclamation against the applicant.
4. The applicant filed Criminal Writ petition No. 170/1994 in this Court wherein his prayer was that a writ of certiorari or any other appropriate writ, order or direction in the nature of writ of certiorari be issued and the charge sheet dated 30-11-1993 arising out of C.R. No. 38/1993 filed by the respondent against the applicant under Sections 8(1) r/w 21 and 29 of the NDPS Act be quashed. That writ petition came up before a division bench of this Court comprising of A. C. Agarwal and D. K. Trivedi, JJ who were pleased to dismiss it, on 4-3-1994 by an order which reads thus :-
"Heard parties. Perused the investigation papers. Rejected."
5. Undeterred by the dismissal of Criminal Writ Petition No. 170 of 1994, the applicant preferred another writ petition in this Court bearing Writ Petition No. 904/1994 in which the prayer was almost analogus, the prayer being that recorded and proceedings arising ot of C.R. No. 38/1993 from the Court of Special Judge, NDPS, Bombay be called and after perusing the records, an appropriate writ, order or direction quashing proceedings against the applicant be passed by this Court.
Writ Petition No. 904/1994 came up before a Division Bench of this Court comprising of G. R. Majithia and M. L. Dudhat, JJ which on 17-10-1994, disposed of the same by an order which reads thus :-
"The petitioner has prayed for quashing the proceedings arising out of C.R. No. 38/1993 pending before the Special Judge, NDPS Act, Bombay in this petition under Article 226/227 of the Constitution of India. At the hearing of the petition, the learned counsel for the petitioner does not urge that the proceedings be quashed. He fairly states at the bar that the charge sheet has been filed and the learned Special Judge has not framed the charges.
The petitioner has filed an application before the Special Judge for discharging him. That application has still not been disposed of. The learned counsel for the petitioner submits that he will be fully satisfied if a direction is issued to the learned Special Judge, NDPS Act, Bombay to dispose of his application No. 536 of 1994 in NDPS Case No. 170/1994 dated September 15, 1994 without insisting on personal appearance of the petitioner. The learned PP does not oppose the prayer. We accordingly direct the learned Special Judge to dispose of that application within 15 days from the receipt of the copy of this order. We make it clear that the learned Special Judge will decide the application on merits but, without pressing for the personal attendance of the petitioner. The writ petition is disposed of accordingly.
6. The order dated 17-10-1994 passed by this Court in Writ Petition No. 904 of 1994 was taken offence to by the State of Maharashtra which challenged it in the Apex Court by means of Special Leave Petition No. 4008 of 1994. Grievance of the State of Maharashtra before the Apex Court was two-fold :-
Firstly, it was improper and incorrect for this Court to have made an observation directing the Special Judge to dispose of the application of the applicant for discharge without insisting for his personal appearance.
Secondly, the averment in the order of this Court that the learned Public Prosecutor did not oppose the prayer for the disposal of the discharge application of the applicant without his personal appearance was factually wrong.
On 13-1-1995, the Apex Court decided the Special Leave Petition No. 904 of 1994 by the following order :-
"The least that we can say in this matter is that the order made by the High Court directing the hearing of the application by the trial Court without the presence of the applicant, when admittedly he is outside the country is both unjustified and uncalled for. Since, however, the State has approached this Court belatedly and in the meanwhile, the learned Special Judge has heard the application and rejected the same, we do not purpose to say anything more in the matter.
We are also informed that the learned Public Prosecutor is prepared to file an affidavit stating that he had in fact opposed the application although a statement appears in the impugned order that the learned public prosecutor did not oppose the prayer. In such cases, the advocates concerned must immediately file an application for review of the order to correct any wrong statement attributed to them.
We close this matter since it has become infructuous. The Registry to send a copy of the order to the High Court immediately."
7. Meanwhile, the discharge application preferred by the applicant was rejected by the Special Judge, vide order dated 7-11-1994, which is the subject matter of challenge in the present Criminal Revision, on the ground that there was evidence indicating the involvement of the applicant in the instant crime.
8. When the matter was taken up today I straight away questioned Mr. Rajendra Singh learned counsel for the applicant regarding the maintainability of the present petition for the same in my view is not maintainable because, admittedly the applicant is outside the country; has not yet put in appearance in the Court of the Special Judge inspite of a proclamation being used against him by that Court; and in view of the spirit of the observations of the Apex Court in Special Leave Petition No. 4008 of 1994, it would be wholly improper and incorrect for me to hear the matter, unless the applicant puts in appearance in the Court of the learned Special Judge.
9. In a matter of the present type a party which challenges an order of a Court must first submit to its jurisdiction. Admittedly. the applicant is a fugitive from justice and is presently in Dubai. The revisional jurisdiction of this Court is undoubetdly a discretionary jurisdiction. It is well-settled that one of the considerations which weighs with the Court in deciding whether it should exercise its revisional jurisdiction in a given case is the conduct of the party invoking it. The conduct of the applicant in remaining in Dubai and in not putting appearance in the Court of the Special Judge, Greater Bombay in spite of a proclamation being used against him by it certainly weighs with this Court in not entertaining this Criminal Revision.
10. In a very astute manner, Mr. Rajendra Singh tried to distinguish the context in which the observation of the Apex Court are to be read. He urged that the observations of the Apex Court only mean that the discharge application of the applicant could not be heard by the trial Court without the presence of the applicant and should not be construed to imply that for preferring the present petition the prior appearance of the applicant before the Special Judge was a condition precedent. He urged that in the absence of any legal and admissible evidence against the applicant, the impugned order dated 7-11-1994 rejecting the applicant's application for discharge was unsustainable in law as there was no sufficient ground for proceeding against the applicant in law. He further urged that to challenge an illegal order, it is not a condition precedent that a party must first submit itself to the jurisdiction of the Court.
11. I have given my very anxious consideration to the submission canvassed by Mr. Rajendra Singh. In my view, even assuming for arguments sake that there is no legal and admissible evidence against the applicant, this petition is not maintainable for the reasons mentioned in paragraphs 8 and 9 of this order. In my opinion till the time the applicant submits to the jurisdiction of the Court and surrenders to the majesty of the law, the present petition cannot and should and not be heard by this Court on merits.
12. I accordingly dismiss this petition as being not maintainable. I however, make it absolutely clear that I have not at all examined the case of the applicant on merits.
Before parting with this order, I would like to mention that Mr. Rajendra Singh could not show me any authority of the Apex Court wherein it has been held that it is not a condition precedent for a party to put in appearance before a Court prior to its seeking relief in respect of a matter arising from an order passed by it.
Mr. Rajendra Singh however, said that he had authorities of some High Courts. In my view, the observations of the Apex Court in Special Leave Petition No. 4008 of 1994 are binding on me both literally and in spirit. And their spirit clearly is that the applicant must put in appearance in trial Court prior to filing the present petition.
Certified copy of this order should be issued to the counsel for the parties on an expedited basis on case an application is made for the same.
13. Petition dismissed.