Gujarat High Court
Sanjiv Rajendra Bhatt vs State Of Gujarat on 31 January, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/22998/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 22998 of 2019
FOR APPROVAL AND SIGNATURE: sd./-
HONOURABLE MS JUSTICE SONIA GOKANI
==========================================================
1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
SANJIV RAJENDRA BHATT
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR SAURIN A SHAH(791) for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR (2) for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 31/01/2020
ORAL JUDGMENT
1. This is a successive application by the applicant-original accused No.2, seeking regular bail in connection with the offence, registered as Prohibition C.R. No. 216 of 1996 with Palanpur City Police Station, under Sections 120-B, 119, 116, 167, 182, 193, 195, 199, 200, 211, 353 of the Indian Penal Code, 1860, and Sections 17, 58(2), 59(1)
(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in brief 'NDPS Act', which culminated into Special NDPS Case No. 3 of 2018, pending before the Court of the learned Special Judge, Banaskantha at Palanpur.
Page 1 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020R/CR.MA/22998/2019 JUDGMENT 2. The facts in capsulized form are as under; 2.1 On 30.04.1996, at about 06:10 a.m., the District Control
Room, Palanpur, received an information that one Mr. Sumer Singh Rajpurohit is doing the business of opium and has brought 5 kgs. of opium and is staying at Lajwanti Hotel, Palanpur, and the delivery of the opium is to be given in Palanpur. Aforesaid information was reduced into writing in the register vide Entry No. 360 and the investigation of the same was handed over to one Mr. I.B. Vyas, PI, Local Crime Branch, LCB ('LCB' in short). Thereafter, on the basis of the said information, Mr. Vyas carried out raid and seized about 1.15 kgs. of opium from Room No. 305 of Lajwanti Hotel, which was booked in the name of one Mr. Sumer Singh Rajpurohit. However, when the raid was carried out, he was not found present in Room No. 360. Then, a detailed panchnama was drawn of the seizure of opium.
2.2 Based on the seizure of the opium, the FIR being I-C.R. No. 216 of 1996, came to be lodged with the Palanpur City Police Station, for the offence under Section 17 of the NDPS Act by Mr. Vyas, PI, LCB. Pursuant thereto, a report, as required under the NDPS Act, also came to be forwarded to the DSP, Palanpur, by Mr. Vyas. Mr. Vyas, PI, LCB, also recorded the statements of several persons.
2.3 On the next day, i.e. on 01.05.1996, out of the muddamal seized by the police, a sample was drawn and sealed in the presence of the panchas and the same was sent to FSL on 02.05.1996. Further, the statements of several persons were also recorded on the very day. On 03.05.1996, a team of Police Officers, lead by Mr. Vyas, PI, LCB, reached Pali and brought Mr. Sumer Singh Rajpurohit to Palanpur for investigation in connection with I-C.R. No. 216 of 1996, after giving due intimation to the Kotwali Policel Station, Pali. However, since, two Page 2 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT witnesses, namely Mr. Shantilal Ramchandra Gupta and Mr. Manubhai Kanjibhai Kodarvi, who could have identified the accused, were not present in town, Mr. Vyas arrested the accused Mr. Sumer Singh Rajpurohit.
2.4 On 04.05.1996, the accused-Mr. Sumer Singh Rajpurohit was produced before the learned Chief Judicial Magistrate, Palanpur, where, his remand was sought, which came to be opposed by the accused by filing a written reply. However, on hearing both the sides, the learned Chief Judicial Magistrate granted the remand of the accused upto 10.05.1996, 03:30 p.m.. On 05.05.1996, since, both the witnesses, namely Mr. Shantilal Ramchand Gupta and Mr. Manubhai Kanjibhai Kodarvi returned to Palanpur, an application was given to the learned Executive Magistrate to carry out Test Identification Parade. Accordingly, on 06.05.1996, the Test Identification Parade was carried out, in the presence of panchas, where, both the witnesses failed to identify Mr. Sumer Singh Rajpurohit, as the person, who had stayed in Lajwanti Hotel at Palanpur, on 30.04.1996.
2.5 In wake of the aforesaid development, on 06.05.1996, Mr. Vyas, PI, LCB, after recording the statements of both the witnesses, namely Mr. Shantilal Ramchand Gupta and Mr. Maubhai Kanjibhai Kodarvi, thought it fit not to continue further custody of Mr. Sumer Singh Rajpurohit and therefore, on the very day, produced him before the Court of the learned Special Judge, Palanpur, immediately and submitted a report under Section 169 of the Code, whereby, the prayer was sought to release Mr. Sumer Singh Rajpurohit. Mr. Vyas also sent a report to the DSP, Banaskantha, indicating that both the witnesses had failed to identify Mr. Sumer Singh Rajpurohit, as the person, who has stayed in Room No. 305 of Lajwanti Hotel. Mr. Sumer Singh also preferred an application being Criminal Misc. Application No. 331 of Page 3 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT 1996, seeking his release on regular bail, on the same day, which came to be fixed for hearing on 08.05.1996.
2.6 On 08.05.1996, the learned Special Judge, Palanpur, ordered the release of Mr. Sumer Singh Rajpurohit, on his furnishing the personal bond of Rs.10,000/- with an undertaking that he shall remain present before the Court, as and when called.
2.7 Mr. Vyas, PI, LCB, submitted a report on 09.05.1996 to add Section 58(2) of the NDPS Act, before the learned Special Judge, Palanpur. He also submitted a report under Section 169 of the Code, which, came to be accepted by the learned Special Judge, Palanpur, on 14.05.1996, whereby, the learned Special Judge discharged Mr. Sumer Singh Rajpurohit, canceling the person bond executed by him.
2.8 In the month of July, 1996, the witnesses, namely Mr. Shantilal Ramchand Gupta and Mr. Manubhai Kanjibhai Kodarvi were taken to Vadodara for getting the sketch prepared of the person, who had stayed in Room No. 305 of Lajwanti Hotel on 29.04.1996, in connection with the offence under Section 58(2) of the NDPS Act.
2.9 So far as the muddamal, which was seized and was sent to Asst. Chemical Examiner, FSL, Ahmedabad, is concerned, a report was received on 15.07.1996, indicating that the muddamal seized was 'Opium'. However, on 12.08.1996, Dy. Inspector General of Police, Border Range, Bhuj, directed to take the sample once again and to send the same across for re-examination to FSL, Gujarat State. Pursuant to the aforesaid direction, again a sample of 30 gms. was drawn from the muddamal seized and was sent across to FSL for reexamination. On receipt of the aforesaid letter, Asst. Director-Cum- Asst. Chemical Examiner, Narcotic Section, FSL, Ahmedabad, sent a Page 4 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT letter to the Divisional Police Authority on 21.08.1996, questioning the re-examination, since, the examination of the muddamal seized had already been done. This was replied to by Mr. R.B. Brahmbhatt on 23.08.1996. Thereafter, on 23.09.1996, the Scientific Officer, FSL, Ahmedabad, sent a report to the Divisional Police Authority, Palanpur, indicating that the muddamal sent is recognized as 'Opium', as provided under the NDPS Act.
2.10 While these procedures were going on, Mr. Sumer Singh Rajpurohit lodged a complaint before the Court of the learned Chief Judicial Magistrate, Pali, on 17.10.1996, against Mr. Vyas, PI-LCB, and others for the offence punishable under Sections 120-B, 195, 196, 342, 347, 357, 368, 458 and 482 of the IPC and Sections 17 and 58(1)(2) of the NDPS Act, where, the learned CJM passed an order under Section 156(3) of the Code and directed the Kotwali Police Station, Pali, to register the complaint. The Court also directed that the investigation should be carried out by the officer, not below the rank of DGP.
2.11 Consequently, on 18.11.1996, the complaint, being I-C.R. No. 403 of 1996 came to be lodged with the Kotwali Police Station, Pali. On 20.11.1996, the Addl. Director General of Police (Crime & Vigilance), Jaipur, Rajasthan, directed the SP, CID (Crime Branch), Rajasthan to investigate the said FIR, where, the accused, namely Mr. Futermal Jainm came to be arrested on 06.12.1996. The investigating officer, then, submitted the final report vide Charge-sheet No. 36 in I- C.R. No. 403 of 1996 on 01.03.1997.
2.12 Mr. Vyas, PI, LCB, preferred an application being Special Criminal Application No. 1302 of 1997 before this Court, seeking transfer of the proceeding of the FIR being I-C.R. No. 403 of 1996, registered with Kotwali Police Station, Pali, with a further to try the same Page 5 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT along with I-C.R. No. 216 of 1996, registered with Palanpur City Police Station. State of Gujarat also preferred Special Criminal Application No. 1309 of 1997, seeking the identical reliefs on 29.09.1997. On 26.10.1997, the statement of Mr. Vyas, PI, LCB, came to be recorded in connection with I-C.R. No. 216 of 1996.
2.13 On 04.12.1997, this Court (Coram: Mr. N.N. Mathur, J.), in 'I.B. Vyas Vs. State of Gujarat & Others', reported in 1998 (1) GLH 405, dismissed both Special Criminal Application No. 1302 of 1997 and Special Criminal Application No. 1309 of 1997 with a direction to complete the investigation in I-C.R. No. 403 of 1996, registered with Kotwali Police Station, Pali, latest by 15.01.1998. In wake of the dismissal of Special Criminal Application No. 1302 of 1997 and Special Criminal Application No. 1309 of 1997 and the direction to complete the investigation expeditiously by this Court, Superintendent of Police (First), CID (CB), Jaipur, Rajasthan, submitted charge-sheet in I-C.R. No. 403 of 1996 on 14.01.1998.
2.14 On 05.01.1998, the present applicant had preferred Special Criminal Application No. 6 of 1998 before this Court , challenging the order passed by the learned CJM, Pali, directing the registration of the complaint being I-C.R. No. 403 of 1996 with the Kotwali Police Station, Pali. However, the same came to be dismissed by this Court (Coram:
Ms. R.M. Doshit, J., as her Ladyship then was) on 09.07.1998, on the ground that this Court has no jurisdiction to deal with the order dated 17.10.1996.
2.15 It appears that some of the persons, who had been arraigned as accused, preferred various applications, viz. Special Criminal Application Nos. 926, 4876 & 988 of 1998 before this Court, which, were permitted to be withdrawn on 21.11.1998.Page 6 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020
R/CR.MA/22998/2019 JUDGMENT 2.16 On 20.11.1998, Mr. Ramanlal Jain preferred, Special
Criminal Application No. 1079 of 1998 before this Court, praying to handover the investigation of I-C.R. No. 216 of 1996, registered with Palanpur City Police Station to CBI, whereas, State of Gujarat preferred S.B. Criminal Misc. Application No. 108 of 1999 before the High Court of Rajasthan at Jodhpur,seeking quashment of the FIR being I-C.R. No. 403 of 1996, registered with Kotwali Police Station, Pali. Mr. Ramanlal Jain also had preferred S.B. Criminal Misc. Application No. 164 of 1999, seeking the identical reliefs before the very Court. This had happened on 23.01.1999.
2.17 The present applicant, who is named as the only accused in Charge-sheet No.1 filed in connection with I-C.R. No. 403 of 1996, registered with Kotwali Police Station, Pali, preferred anticipatory as well as the regular bail applications before the learned Special Judge, NDPS Case, Jodhpur, where, the learned Special Judge was pleased to grant the anticipatory bail to the present applicant and others. However, the learned Special Judge, NDPS Case, Jodhpur, rejected the regular bail applications of Mr. I.B. Vyas, PI, LCB, and others on 31.03.1999.
However, when Mr. I.B. Vyas and others, whose regular bail application had been rejected by the learned Special Judge, NDPS Case, Jodhpur, approached the Rajasthan High Court, at Jodhpur, they were granted regular bail vide order dated 07.05.1999.
2.18 Mr. Vyas, PI, LCB, preferred Special Criminal Application No. 680 of 1999 on 02.08.1999 before this Court, seeking the transfer of investigation in I-C.R. No. 216 of 1996 to CBI.
2.19 In the meantime, the investigation in I-C.R. No. 216 of 1996, registered with Palanpur City Police Station was carried out by as Page 7 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT many as five different police officers between 06.07.1996 to 27.02.2000 and finally, 'A' summary report came to be submitted on 28.02.2000 before the learned Special Judge, Palanpur.
2.20 On 05.04.2000, both the petitions preferred before the the High Court of Rajasthan, at Jodhpur, seeking quashment of the FIR being I-C.R. No. 403 of 1996, registered with Kotwali Police Station, Pali, came to be dismissed by that Court (Coram: Mr. B.S. Chauhan, J.). Being aggrieved with the same, Mr. Ramanlal Jain preferred SLP (Criminal) No. 1327 of 2000, whereas, the State of Gujarat preferred SLP (Criminal) No. 1931 of 2000 before Hon'ble the Apex Court, where, the Apex Court issued notice on 01.05.2000, with a further direction to appear before the Court by which the process has been issued and the Court concerned was directed, on such appearance, to release him on bail. The Apex Court also stayed the proceedings before the Court concerned. During the period between 04.07.2000 to 05.12.2018, the stay of the proceedings before the Court concerned granted by the Apex Court in the matter of Mr. Ramanlal Jai (which was subsequently numbered as Criminal Appeal No. 1030 of 2002) along with the SLP (Criminal) No. 1931 of 2000 filed by the State of Gujarat, continued.
2.21 On 03.04.2018, this Court (Coram: Mr. J.B. Pardiwala, J.) disposed off Special Criminal Application No. 1079 of 1998 and Special Criminal Application No. 680 of 1999, with a direction to carry out the investigation in I-C.R. No. 216 of 1996, registered with Palanpur City Police Station, by a Special Investigation Team (for convenience, 'SIT'), consisting of the police officers from CID (Crimes), State of Gujarat. This Court also directed that the SIT shall consists the officers, not below the rank of Superintendent of Police, with an officer of the rank of Dy. Inspector General of Police.
Page 8 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020R/CR.MA/22998/2019 JUDGMENT 2.22 Pursuant to the order of this Court, an SIT was formed on
30.07.2018 and it carried on the investigation. On 01.08.2018, Mr. Virendrasinh Yadav, SP (Administration) CID Crime & Railways, State of Gujarat, wrote a letter to the SP, Palanpur, to hand over the papers of investigation of I-C.R. No. 216 of 1996 and the SP, Palanpur, handed over the same vide communication dated 04.08.2018.
2.23 The present applicant came to be arrested on 05.09.2018 and on 06.09.2018, a report was made to add Sections 120-B, 119, 166, 167, 182, 193, 195, 200, 211, 343 & 59(B) of the NDPS Act. Further, a request was also made to the learned 3rd Addl. Judicial Magistrate, First Class, Palanpur, to grant the remand for 14 days. However, such a request was rejected by the Court concerned at Palanpur. Being aggrieved with the said order, the State preferred Criminal Application No. 1088 of 2018 before this Court, where, this Court (Coram: Mr. R.P. Dholaria, J.) granted remand for 10 days.
2.24 On 11.09.2018, the present applicant preferred Criminal Misc. Application No. 17160 of 2018 before this Court, seeking quashment of the FIR being I-C.R. No. 216 of 1996. However, the same was permitted to be withdrawn by this Court (Coram: Mr. R.P. Dholaria, J.) on 12.09.2018.
2.25 The wife of the present-applicant, namely Ms. Shweta S. Bhatt, under Article 32 of the Constitution of India, preferred Writ Petition No. 265 of 2018 before the Apex Court of India, seeking the quashment of the FIR being I-C.R. No. 216 of 1996, registered with Palanpur City Police Station. She also had preferred Special Leave Petition (Criminal) No. 35237 of 2018, seeking to challenge the judgment and order dated 30.04.2018, passed by this Court in Special Criminal Application No. 680 of 1999, where, the Apex Court granted Page 9 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT the leave to challenge the order dated 30.04.2018. However, it did not interfere with the order dated 30.04.2018 and further observed that the same shall not come in the way of the petitioner in moving the appropriate Court for grant of regular bail. The Apex Court also permitted the petitioner to move this Court, seeking the reliefs sought under Article 32 of the Constitution of India, and thereby, it disposed off the said petition.
2.26 The applicant, on 06.10.2018, preferred Criminal Misc. Application No. 866 of 2018, before the Court of the learned Principal Sessions Judge, Banaskantha at Palanpur, seeking regular bail and the same came to be rejected on 07.12.2018.
2.27 It appears that in the interregnum on 12.10.2018, the IO, Mr. Virendrasingh Yadav, SP (Administration) CID Crime & Railway, State of Gujarat, sent a letter to the Asst. Director-cum-Asst. Chemical Examiner, FSL, Ahmedabad, seeking clarifications on certain aspects in respect of the reports of the FSL dated 15.07.1996 and 23.09.1996, whereby, the opinion was sought, whether, the muddamal article seized was natural Opium or prepared opium. The Asst. Director-Cum-Asst. Chemical Examiner, FSL, Ahmedabad, replied to the same vide communication dated 15.10.2018, stating that as per Botanical Examination the muddamal seized was natural opium. Mr. Virendrasingh Yadav, therefore, addressed a letter to Addl. Chief Secretary, Home Department, State of Gujarat, seeking permission to prosecute the present applicant and Mr. I.B. Vyas, PI, LCB, for they having committed the offence punishable under Section 59(2) of the NDPS Act.
2.28 On 02.11.2018, Mr. Virendrasingh Yadav recorded the statements of several witnesses and submitted charge-sheet against Page 10 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT the present applicant and other co-accused, where, the offence under Sections 120-B, 119, 116, 167, 204, 34 and 343 of the IPC and under Sections 17, 18, 29, 58(2), 59(2)(b) of the NDPS Act were charged against them. So far as the accused, Mr. Malabhai Joitabhai Karmatiya (Rabari) is concerned, since, he passed away on 20.02.2018, the charge-sheet qua him stood abated.
2.29 It appears that the sanction, as sought for by Mr. Virendrasinh Yadav, was granted to prosecute the applicant by the Addl. Chief Secretary, Home Department, State of Gujarat, on 20.02.2019.
2.30 Then, on 12.12.2018, the applicant preferred Criminal Misc. Application No. 23368 of 2018 before this Court, seeking his release on regular bail in connection with I-C.R. No. 216 of 1996, registered with Palanpur City Police Station, which, came to be rejected by this Court vide a detailed order on merits on dated 07.03.2019.
2.31 Against the rejection of his application for regular bail by this Court vide order dated 07.03.2019, the applicant approached the Apex Court by way of Special Leave Petition (Criminal) No. 2919 of 2019 on 13.03.2019. The Apex Court disposed off the same, while observing as under:
"... In view of the liberty granted to the petitioner by the High Court in paragraph-38.3 of the order that if the trial does not get concluded within the period of six months, the applicant shall be at liberty to approach this Court."
We are not inclined to interfere. The Special Leave Petition is accordingly disposed of. We make it clear that we have not expressed any opinion on the merits of the case. Pending applications, if any, stand disposed of."
2.32 It is to be noted that in the interregnum, on 26.12.2018, the Page 11 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT
applicant had preferred an application for discharge vide Exhibit-11 in Special NDPS Case No. 3 of 2018 before the trial Court concerned, under Section 227 of the Code. The victim, Mr. Sumer Singh Rajpurohit, objected to the application of the present applicant for discharge, where, the learned Special Judge, NDPS & 4th Addl. Session Judge, Banaskantha at Palanpur, vide order dated 23.08.2019, rejected the discharge application and ordered the framing of charge for the offence under Sections 120-B, 119, 116, 167, 204, 343, 465. 471 and 34 of the IPC and under Sections 17, 18, 21, 27-A, 29, 58(1) & 58(2) of the NDPS Act.
2.33 It appears that before the trial Court concerned, a request was made by the learned Public Prosecutor for issuance of summons and also to call for certain papers. This was strongly objected to by the present applicant on the ground that, still, the applications under Exhibits-63 and 57 are pending for orders and without availing those documents, the right of the applicant to defend himself is going to be seriously jeopardized.
2.34 On 24.12.2019, the statements of the witnesses, under Section 164 of the Code, came to be recorded before the Court of the learned Chief Judicial Magistrate, where, the original 'Yadi' (Information) was sought to be produced before the Court concerned. However, this also was objected to by the learned Advocate for the applicant. The next date of hearing is, now, scheduled on 04.02.2020, when, the matter is posted for necessary orders on Exhibits-53 and 67 so also on the applications, which have been tendered by the prosecution for issuance of summons with the details of the statements recorded under Section 164 of the Code. It is also submitted before this Court that one of the co-accused, namely Mr. I.B. Vyas, PI, LCB, has chosen to be an approver in this case, and therefore, he has moved a Page 12 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT formal application for the said purpose, which is also posted for hearing on 04.02.2020.
3. In wake of the chronology of the events, as mentioned herein above, so also the present status of the trial, which is pending before the Court concerned at Palanpur, a request is made for grant of regular bail by the applicant, essentially, on the ground that in earlier application rejected by this Court, although, this Court had given the detail reasons and had not entertained the same, when the said order was challenged before the Apex Court by way of SLP, the Apex Court expressed no opinion on merits of the case. Therefore, it is the say of the applicant that, since, the Apex Court did not express any opinion on merits, this application is to be considered not only on the ground of fresh or changes circumstances but also on the merits, as well.
3.1 According to the applicant, reliance placed on the decision of this Court in 'ARVIND SHIVLAL SONI VS. STATE OF GUJARAT', 1996 (0) GLHEL 200771, is misplaced and the said decision will have no applicability, inasmuch as, this is neither an application, where, earlier application for regular bail was either withdrawn or not-pressed or rejected by the Apex Court, but, it is only in wake of the observations made by this Court, permitting the applicant to approach this Court once again, if, the trial does not get concluded within the period of six months that the said matter was disposed by the Apex Court, and therefore, this Court is, once again, required to enter into the merits of the matter and to reconsider the entire set of evidence, afresh. There are, several other grounds also, which have been pressed into service, pointing out to this Court that there are certain factual errors, which have crept in which require reconsideration, over and above many other aspects, which would require the fresh relook by this Court.
Page 13 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020R/CR.MA/22998/2019 JUDGMENT
4. Before this Court proceeds to consider the submissions made by both the sides so also the law on the subject, so far as this application is concerned, the reference needs to be made to Special Criminal Application No. 680 of 1999 and Special Criminal Application No. 1079 of 1998, which came to be disposed off by this Court (Coram:
Mr. J.B. Pardiwala, J.) on 03.04.2018, where, this Court directed the constitution of a Special Investigation Team, consisting the Officers, not below the rank of SP, from the CID (Crimes), State of Gujarat. This was also to have an officer of the rank of Dy. Inspector General of Police. The SIT was also directed to complete the investigation within the period of three months from the date of service of the order of this Court.
4.1 Pursuant to the above directions issued by this Court, the SIT was constituted, which carried out the investigation, in accordance with law, where, the present applicant came to be arrested in connection with the FIR being I-C.R. No. 216 of 1996. The provisions of NDPS Act were also added to the said FIR.
4.2 By way of Criminal Misc. Application No. 1 of 2020 in Special Criminal Application No. 680 of 1999, a request was made this Court to recall the order dated 03.04.2018 on the ground that IO filed 'A' Summary report on 27.02.2000, whereas, the learned Special Judge had issued the notice to the Public Prosecutor on 22.03.2000 and the same had not been brought to the notice of this Court and had the same been done, this Court would have declined to issue any direction for constitution of SIT. It was, further, argued before this Court that once the 'A' Summary report was filed by the IO concerned, this Court was precluded from exercising its extraordinary jurisdiction under Article 226 of the Constitution of India.Page 14 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020
R/CR.MA/22998/2019 JUDGMENT
4.2.1 In this regard, the reliance is placed on the decision of the
Apex Court in 'RAM LAL NARANG VS. STATE (DELHI
ADMINISTRATION)', AIR 1979 SC 1791, so also on the decision in 'GANGADHAR JANARDAN MHATRE VS. STATE OF MAHARASHTRA', AIR 2004 SC 4753. The conducting of the investigation also has been seriously questioned before the Coordinate Bench. It was also urged that in the fresh application moved for regular bail, all those contentions have been raised.
4.2.2 Whether, this Court could have granted such prayers or not may not be assumed in wake of the detailed order passed by the Coordinate Bench in the application for review / recall application. This Court is not required to look into such prayer in relation to the order of the Coordinate Bench dated 03.04.2018. This Court (Coram: Mr. J.B. Pardiwala, J.), while disposing the application for review / recall, observed and held as under:
"26. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for the consideration of this Court is, whether the judgment and order passed by this Court should be recalled on the grounds raised on behalf of the applicant.
27. I have no hesitation in observing that the filing of the applications of the present type is nothing but last ditched efforts on the part of the applicant to see that the trial does not proceed further. Such attempts needs to be condemned in strong words. Having regard to the developments that have taken place after this Court passed the order, it is too much on the part of the applicant to come to this Court and pray that the order be recalled, and that too, on flimsy grounds as urged. This litigation is now almost more than two decades old. After due consideration of all the relevant aspects of the matter and materials on record, this Court thought fit to pass appropriate directions for the constitution of a Page 15 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT Special Investigation Team, so that such team can carry out effective investigation of the F.I.R. In the order passed by this Court, a fine distinction has been drawn between the prosecution instituted within the State of Gujarat and the proceedings, which are pending in the State of Rajasthan. The filing of the 'A' summary report or any other report can hardly be a ground to preclude this Court from exercising its extraordinary jurisdiction under Article 226 of the Constitution of India, if the occasion demands in the interest of justice. It is too much on the part of the applicant to say that as the investigation was completed and an 'A' summary report was filed, this Court ought not to have entertained the two writ-applications and pass an order for the constitution of a Special Investigation Team. The facts of this case need not be repeated. The more they are recalled, it is more painful. Unfortunately, the police officers are involved in this crime along with a former Judge of this High Court.
28. As on date, there is a charge-sheet on record. I would not like to go into the evidence forming part of the charge-sheet. It is now for the trial Court to proceed with the recording of the evidence. The guilt or the innocence of the accused persons will be now determined by the trial Court on conclusion of the trial.
XXX XXX XXX
32. In view of the above pronouncement, in order to protect the civil liberties, fundamental rights and more particularly Article 21, this High Courts can very well exercise the power, no doubt, cautiously and in exceptional situations. As noted above, the facts of this case are so gross that this High Court had to exercise its writ jurisdiction and issue appropriate directions for constituting a Special Investigating Team. Ultimately, the Special Investigating Team carried out the investigation and the result of the same is filing of the charge-sheet with incriminating materials against the applicant herein and other co-accused.
33. There is no good reason for this Court to once again Page 16 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT look into the order on any of the grounds, which have been put forward. In fact, there was no suppression worth the name of any material fact. I am constrained to observe that if the applicant continues to keep on thwarting the due process of law by adopting such dilatory tactics, then some stern steps may have to be taken against the applicant in accordance with law. No wonder a Division Bench of this Court in the case of the very same applicant while deciding the Criminal Misc. Application (for suspension of sentence) No.1 of 2019 in Criminal Appeal No.1492 of 2019 had to observe as under:-
".....Having regard to the said orders, it appears that the applicant has scant respect for the Courts and is in the habit of misusing the process of law and scandalizing the Court...."
34. The Supreme Court in the case of the very same applicant in a reported decision in (2016) 1 SCC 1 in Paragraph-65 observed as under:-
"65.....Thus the petitioner is guilty of suppressio veri and suggestio falsi. He has suppressed the enclosures which he ought to have filed and ought not to have made false allegations in the writ petition that SIT was exchanging sensitive and confidential information with the then AAG. It is unfortunate that on the one hand petitioner has prayed for appointment of SIT and on the other has not spared SIT appointed by this Court and has made false allegations against it. The conduct of the petitioner cannot be said to be desirable."
4.2.3 The Coordinate Bench, as is apparent, thus, constrained to observe that there is continuous thwarting of the process of law by adopting delay tactics and when such practice continues, the same needs to be dealt with, in accordance with law. Thus, the application for recall / review having been rejected by the Coordinate Bench, the request on the part of the applicant, challenging the investigation done by the SIT, which was constituted, pursuant to the directions issued by Page 17 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT the Coordinate Bench, cannot be sustained nor can the subsequent proceedings undertaken could be questioned for the prayer of recall not being granted.
5. With the above developments, the first and the foremost point, which is requires to be considered by this Court is, as to whether, in wake of the rejection of the earlier application for regular bail of the very applicant being Criminal Misc. Application No. 23368 of 2018 by this Court and that on merits, whether, this Court is required to consider this request afresh or on the basis of the changed circumstances.
5.1 Both the sides have made fervent submissions, in this regard, before this Court. This Court is conscious of the fact that the Apex Court, which was approached by the applicant against the order of this Court, by way of SLP No. 2919 of 2019, has expressed no opinion on merits of the case, as it was not inclined to interfere, in wake of the specific liberty granted by this Court to approach once again, if, the trial does not get concluded within the period of six months. It is true that this is neither rejection nor withdrawal on the part of the applicant nor is it a case of not-pressing the petition. The Apex Court, on its own, has chosen not to entertain the SLP on merits, in wake of the specific liberty granted by this Court to the applicant and also chose, not to express any opinion on the merits of the case. However, that would not mean that this Court can consider the successive bail application, as if, there does not exist any earlier order of rejection of this Court. It, nonetheless, shall need to consider the subsequent events, which led to non- completion of the trial within the period of six months, specified by this Court, while granting the liberty to the applicant to approach this Court once again.
5.2 Undoubtedly, if, there are some vital aspects, which had Page 18 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT
been left out of the consideration, at the time of deciding the earlier bail application, by this Court, which were, though, on the record, or for some reasons not forming the part of the record, this Court is not precluded to look into the same, as Section 439, which is meant for the liberty of a person, facing trial, shall need to be considered, keeping in mind the rationale of not only incorporating this provision but also and the power granted to this Court simultaneously and the same shall need to be exercised to fulfill the objects and reasons of incorporating this provision in the Code. Well laid down law on the subject also would need to be regarded for the purpose. It is trite law that once having decided the application for bail on merits, what requires to be considered by the very Court is the subsequent events and circumstances. Even without entering into the debate, as to whether, the order of the Apex Court would amount to withdrawal or rejection or approval of any order, this Court would be surely bound by its own order rendered on merits. Even otherwise, law, since, is well settled that only subsequent development that can be looked into. Submissions of the Sate on the issue, requires to be accepted.
5.3 Again, ordinarily, at the time of consideration of regular bail / repeat bail, the Court is required to regard broadly the following criteria:
(i) the nature and seriousness of accusations;
(ii) kind of collection of evidence;
(iii) severity of charges levelled;
(iv) conduct and character of accused;
Page 19 of 30
Downloaded on : Sun Feb 16 12:25:28 IST 2020
R/CR.MA/22998/2019 JUDGMENT
(v) chances of tempering with the evidence and
witnesses;
(vi) obstruction of smooth flow of trial by the accused;
(vii) its impact on the society
5.3.1 These aspects were almost regarded on the earlier
occasion to deny the regular bail and hence, the subsequent development shall assume importance. Subsequent order granting bail, rejecting earlier, without any change in circumstances was held not proper in the case of 'STATE OF MAHARASHTRA VS. CAPTAIN BUDDHIKOTA SUBHA RAO', 1989 AIR (SC) 2292.
5.4 This brings this Court in the written-submission filed by the applicant before this Court through his learned Advocate, certain narrations have been reproduced of the order of this Court to urge that a few aspects were mistakenly recorded. One such example given is of recording that Mr. I.B. Vyas, PI, LCB, had stated that he was present at Police Control Room when the anonymous phone call was received. However, in fact, it was one Mr. Bababhai Savabhai Rojiya, who was on duty as Control in-charge, when the anonymous phone call was received, indicating that one Mr. Sumer Singh Rajpurohit is dealing in opium and yesterday, he has come with 5 kgs. opium and is staying at Lawanti Hotel, Palanpur, and the delivery of the opium is also to be made in Palanpur. This aspect is recorded in the telephonic information (Verdhi). He, then, also had informed the SP, Palanpur, about the same, as the matter pertained to opium, who instructed him to pass on the said information to Mr. I.B. Vyas, PI, LCB.
5.5 Even accepting the version of applicant on this, hardly, Page 20 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT
would have any bearing on the ultimate outcome of this matter. This narration, of course, has been taken note of by this Court and then also, it can be held that the same would not affect the final outcome of the application for regular bail.
5.6 Another requires reference is in repetition to Paragraph-3.5 of the earlier order, where, the Court has noted that " It is alleged further that the present applicant had many cases at the relevant time, at the High Court of Gujarat and, therefore, in anticipation of cooperation from the sitting Judge, he decided to not only conspire, but, meticulously execute the conspiracy at his instance". The attention of this Court is drawn to the fact that various FIRs, except, the FIR being I-C.R. No. 102 of 1990, registered with Jamjodhpur Police Station for the offence under Sections 302, 323, 506(2) and 114 of the IPC, are subsequent FIRs being I-C.R. No. 149 of 2011, registered with Ghatlodiya Police Station, II-C.R. No. 3148 of 2011, registered with Vastrapur Police Station, M. Case No.2 of 2012, lodged by one Mr. Vijaysinh Bhavansinhji Bhatti with 'A' Division Police Station, Jamnagar, I-C.R. No. 403 of 1996, registered with Kotwali Police Station, Pali, Rajasthan and the proceedings of Criminal Misc. Application No. 13128 of 1998, pending before the Court of the learned 4th Addl. Chief Judicial Magistrate, Porbandar, and the subsequent FIR registered at Palanpur.
5.7 The only FIR being I-C.R. No. 102 of 1990, registered with Jamjodhpur Police Station, has now culminated into conviction of the present applicant and others in Sessions Case No. 35 of 2001.
5.8 Further, the private complaint filed by one Mr. Mahesh Damji Chitroda being Inquiry Case No. 22 of 1990, before the Court of the learned JMFC, Jamjodhpur, is concerned, when the challenge to the same was made before this Court, since, there were many complaints Page 21 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT by the private parties, this Court quashed most of those complaints, where, for non-attendance, the petition of the present applicant was dismissed, the restoration whereof is in the process.
5.9 Even on noticing these details that barring two complaints, viz. the complaint filed by Mr. Mahesh Damji Chitroda being Inquiry Case No. 22 of 1990, before the Court of the learned JMFC, Jamjodhpur, rest of the FIRs are subsequent to the time when the conspiracy was alleged to be hatched, this Court needs to bear in mind the allegations made even in the private complaints and in the FIR being I-C.R. No. 102 of 1990, registered with Jamjodhpur Police Station, which are very serious in nature, and hence, those observations and prima facie findings also could not have been not there, merely because other five matter are subsequent to the date on which, the conspiracy was alleged to be hatched, as per the case of the prosecution.
6. With the above note, this Court choses to refer to the earlier order passed by this Court, where, under the heading, 'Points Raised for Consideration, detailed reasons have been give, while not entertaining the earlier application under Section 439 of the Code. In wake of the above, this Court does not does not deem it necessary to give fresh and independent findings, once again, for the simple reason that this Court continues to maintain, on the basis of the factual and legal aspects, the reasons mentioned in the order of this Court dated 07.03.2019, passed while rejecting the earlier bail application of the very applicant being Criminal Misc. Application No. 23368 of 2018.
6.1 However, while so doing, this Court needs to regard the subsequent developments or fresh events, more particularly, the events, which have taken place in the post March, 2019, period and Page 22 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT especially, after 09.05.2019, when the Apex Court permitted the petitioner to approach this Court, while disposing off the SLP preferred by the present applicant.
6.2 As narrated, herein above, in the chronology of the events in this petition and as submitted by learned Advocates on both the sides, the trial of the case is to commence, yet, and not to talk of the completion of the same within the period of six months. This is tob e discussed in subsequent paragraphs may not furnish the ground for grant of successive bail for want of availability of material, attributing the slow pace of trial to the prosecution exclusively. Yet, another aspect, which requires consideration of this Court is the emphatic submission made on the part of the learned Advocate, Mr. Shah, of the complete absence of material, in the papers of charge-sheet, of procurement and plantation of the narcotic substance. As all along, his submission had been that pursuant to the directions issued by this Court (Coram: Mr. J.B. Pardiwala, J.) when the SIT came to be constituted, the new IO, heading the SIT, after the arrest of the applicant has recorded the statements of the witnesses and some of them are also made accused. He also questioned, as to what shall be the worth of the evidence of those witnesses, who have been arraigned as accused in the matter before the Court at Rajasthan. It is also not being disputed that the trial is also not proceeding further at Pali, Rajasthan.
6.3 In reply to the same, learned PP, Mr. Mitesh Amin, has urged this Court that this Court is not considering the challenge to the progress of investigation nor is it deciding the appeal, after completion of a trial. It is, in fact, considering the successive application for regular bail. He also invited the attention of this Court to the provisions of the NDPS Act to urged that unless the Court is satisfied that there is no prima facie involvement found of the accused under the NDPS Act, bail Page 23 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT cannot be granted. He, further, has urged that one of the co-accused has made an application to become an approver, who has given the detailed narration, as to how the conspiracy of the present applicant and Mr. Jain led to not only the procurement but also the plantation of the same in Room No. 305 of Lajwanti Hotel, where, Mr. Sumer Singh Rajpurohit was allegedly staying. He, further, has argued that it is impossible to conclude the trial within six months, inasmuch as there are a number of applications, which are continued to be given by the present applicant and which the trial Court concerned is bound to adjudicate. Hence, non-completion of the trial within six months should not be attributed to the prosecution or can the same be treated as a ground by this Court to consider and entertain this successive application for regular bail.
7. Taking, firstly, the aspect of the procurement and plantation of the narcotic substance, this Court notices that the IO, in respect to the allegations of the complainant, has carried out investigation in FIR being I- C.R. No. 403 of 1996, registered with Kotwali Police Station, Pali, Rajasthan, and he also has attempted to investigate the aspect of procurement and plantation of the narcotic substance.
7.1 Presently, the IO concerned has recorded the statements of witnesses qua plantation and procurement of narcotic substance. It is the case of the prosecution that the narcotic substance was procured on 29.04.1996 and was planted in Room No. 305 of Lajwanti Hotel, Palanpur, on 30.04.1996.
7.2 What is, essentially, alleged against those, who have stated in the recent investigation of both the procurement and plantation, is that many of them are the accused in the charge-sheet filed in connection with I-C.R. No. 403 of 1996, registered with Kotwali Police Station, Pali, Page 24 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT and they have been made witnesses in I-C.R. No. 216 of 1996, registered with Palanpur City Police Station. It is true that four of the witnesses, who are co-accused in the FIR being I-C.R. No. 403 of 1996, have given their statements and have also made disclosure of the story, which was not there, earlier.
7.3 This Court cannot be oblivious of the fact that on account of the pending proceedings and the stay granted against the investigation, the investigation in the case registered with Palanpur City Police Station, Pali, was not possible, until the Coordinate Bench of this Court gave a direction to constitute SIT. Therefore, when these details have emerged on record at present, it is, eventually, for the prosecution to prove and establish the allegations levelled against the present applicant and others, where credentials of the witnesses shall also be questioned and verified. This Court also cannot be unmindful of the fact that this is a successive application for regular bail, where, the detailed analysis of the evidence is impermissible nor is this Court permitted to weigh the evidence, which have come to fore to enter into the detailed analysis and to conclude on anything. It is the prima facie case, which requries the consideration. Moreover, this Court also cannot be oblivious of the fact that the present applicant was heading the entire district being Superintendent of Police and every crime under the NDPS Act in the district was being put to his notice.
7.4 This is a matter, where, there is a serious involvement of a lawyer in an NDPS case. The recent investigation carried out by the IO and earlier also, in the investigation in the case registered with Kotwali Police Station, Pali, much has been stated in relation to the procurement and plantation of the narcotic substance at Lajwanti Hotel. This Court requires to state, at this stage, that the challenge to the subsequent investigation, since, has also failed in the form of Page 25 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT application for review / recall, the material, which has been adduced by the SIT, prima facie, reveal both the procurement so also the plantation of the narcotic substance through different witnesses. Therefore, it will not be possible for this Court to keep aside those materials and hold that this Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence to enlarge him on bail. The limitations under Section 37 of the NDPS Act on granting bail are in relation to the time-limit given under the Code or any other law for the time being in force for granting bail.
7.5 It is quite clear from the language of Section 37 of the NDPS Act that the Court needs to, firstly, be satisfied that there are reasonable grounds that the applicant-accused is not guilty of the offence and secondly, that he is not likely to commit any such offence, while on bail. Assuming, without accepting, all the submissions, in relation to the procurement and plantation of narcotic substance made before this Court, are available for the purpose of putting forth before the trial Court, at the time of trial, it will not be possible for this Court to hold at this stage of being satisfied and to believe, in positive terms, that exercise of the powers of grant of regular bail are needed. Even if, the amendment in Section 37 of the NDPS Act came into force with effect from 02.01.2001, the fact remains that the applicant's arrest was on 05.01.1998.
7.6 To urge that the arrest of the applicant was much later, after the amendment came into force, reliance is placed on the decision of the Apex Court in 'JAWAHAR SINGH BHAGATJI VS. STATE OF GNCT OF DELHI', (2009) 6 SCC 490, where, the Apex Court has held that in the cases of pending trial and in cases, pending investigation or where, the trial is to be concluded, yet, the retrospective modification of the rigors of punishment have been made applicable. However, in the Page 26 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT cases, where, the trial has already concluded and the appeals are pending, the application of the amended provisions or acts is excluded so as to preclude the possibility of re-opening a concluded trial.
7.7 Of course, the Asst. Director-cum-Asst. Chemical Examiner, FSL, Ahmedabad, has opined that the muddamal seized is natural opium. Much is argued, in the present case, that the muddamal opium seized in the present case is not prepared opium, and therefore, the muddamal opium seized in this case is not opium derivative and the same being natural opium, it would fall under the small quantity, as per the notification of 2001, since, as per the said notification, the commercial quantity of opium is 2.5 kgs.. It is, therefore, urged that the question of applicability of Section 37 of the NDPS Act will not arise.
7.8 Undoubtedly, prima facie, as emerged from the record, the SP, CID (Crimes), State of Gujarat, sent a letter to the Asst. Director- Cum-Asst. Chemical Examiner, FSL, Ahmedabad, on 12.10.2018, seeking his opinion on certain aspects pertaining to reports of the FSL dated 15.07.1996 and 23.09.1996 and his clarification, as to whether, the seized muddamal article was natural or a prepared opium. The Asst. Director-Cum-Asst. Chemical Examiner, FSL, Ahmedabad, replied to the same vide communication dated 15.10.2018, stating that as per Botanical Examination the muddamal seized was natural opium.
7.9 Such material was already forming the part of the record of this Court, at the time, when this Court considered the earlier application of the present applicant for regular bail. Noticing the decision of the Apex Court in 'JAWAHAR SINGH BHAGATJI' (Supra) and other decisions, where, the Apex Court also has deemed it appropriate, despite there being specific opinion, not to enter into the aspect of small or commercial quantity, of the contents of the narcotic substance Page 27 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT seized, the fact remains that all preparations have more than 0.2 of the Morphine and therefore, the residuary clause 3(e) would take into its sweep, all such preparations. These are the submissions available to the petitioner at the penultimate stage of trial, while considering aspect of punishment. This Court cannot be oblivious that the decision rendered in case of 'E. MICHEAL RAJ VS. INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU', (2008) 5 SCC 161, has been referred to the larger Bench in the subsequent case of 'HIRA SINGH AND ANOTHER VS. UION OF INDIA AND ANOTHER', (2017) 8 SCC 162. And, undoubtedly, the trial Court shall regard this issued in detail at an appropriate state of trial.
7.10 This has been already considered by this Court, at length. Assuming that the rigors of Section 37 of the NDPS Act, in wake of the Notification of 2001, that the requirement of the commercial quantity in the event of the natural opium being of 2.5 kgs., as is submitted before this Court, would be necessary. This Court needs to refer to the fact that this is not an ordinary case of involvement of somebody dealing in narcotic substances or the question of manufacturing or transacting into narcotic substance, but, this is a case of deeper conspiracy, where, an attempt, as per the case of the prosecution, was made to involve a commoner for the purpose of executing and giving shape to such a conspiracy by highly placed officers. Therefore, the subsequent events, when are looked into, where, the charge are framed and the matter is to go for trial, when, even rigor applied by Section 37 of the NDPS Act and even without entering into that entire debate of small or commercial quantity or whether, the muddamal opium seized is natural or derivative, this Court is of the opinion that, since, both the sides are attempting to pursue the remedies available to them under the law by moving the appropriate forum, the delay cannot be solely attributed to the prosecution for not having completed the trial within the period of six Page 28 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT months, which would entitle the petitioner to seek his release on regular bail.
7.11 The chronology of the events, which have been narrated from the time the Apex Court disposed off the SLP filed by the applicant and permitted him to approach this Court, this Court notices that the hearing of the discharge application took place on 24.05.2019, and thereafter, various details have been furnished, indicating that on 23.08.2019, the discharge application came to be dismissed. Further, before the charges came to be framed, the application, Exhibit-56, was decided on 18.09.2019.
7.12 As mentioned, herein above, from the couple of applications, which includes the application of the co-accused to act as approver, undoubtedly, the applicant shall have a right to object to such an application and at the same time, pursue his own remedies. Under the circumstances, once the period of six months, which had been permitted by this Court, at the time of rejecting the earlier application for regular bail on merits, if, has lapsed and if, the subsequent events are taken into consideration, this Court is not in a position to hold that this in any manner can be attributed to the delay tactics adopted on the part of the prosecution so as to make available the benefit of such lapse to the applicant. Consequently, this ground, taken on the part of the applicant, does not weight with this Court. In relation to the vital witnesses, who are to be examined during the trial, the Court earlier had expressed its concerned in the event of and that also is the ground which has not ceased to exist.
7.13 Noticing that the applicant is in jail for the period of 16 months, after his arrest by the IO, while NOT ENTERTAINING this application, this Court also requires to reiterate that this the FIR being of Page 29 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020 R/CR.MA/22998/2019 JUDGMENT the year 1996, it requires to be proceeded with on expeditious basis. It is not only about those, who are involved, but also about the faith of a common man in the system, which should not be permitted to be eroded, only on account of the long drawn litigations in the name of the rights of the either side to proceed, in accordance with law. It is, therefore, also being directed that the Court concerned, while undertaking the task of proceeding with the trial, shall expeditiously attempt to conclude the same, keeping in mind the policy, the settled position of speedy trial and also keeping in mind, the provisions of Section 309 of the Code.
7.14 At this stage, learned Advocate, Mr. Shah, appearing for the applicant has urged that an application for revision has been made by the present applicant, and therefore, the directions for speedy trial, should be subject to the outcome of the same, as, otherwise, it would jeopardize the rights of the applicant.
7.14.1 Let all possible attempts be made to proceed with the application for revision, expeditiously. The right of the both the sides, to pursue the legal remedies available to them under the law, is, though, kept open, the same cannot be at the cost of questioning the very credibility and functionality of the criminal justice system.
8. This application stands disposed off as REJECTED, accordingly. Rule is discharged.
(SONIA GOKANI, J) UMESH/-
Page 30 of 30 Downloaded on : Sun Feb 16 12:25:28 IST 2020