Gauhati High Court
Md. Haji Samsul Hoque Talukdar @ Pakhi ... vs The Union Of India on 27 May, 2014
IN THE GAUHATI HIGH COURT
(High Court of Assam,Nagaland, Mizoram and Arunachal Pradesh )
BAIL APPLICATION No. 883 of 2014
Md. Haji Samsul Hoque Talukdar
@Pakhi Mia @ Munna Bhai
S/O Late Asraf A li
A Resident of Vill-Borhour
PS & PO-Murajhar
Dist.Nagaon, (Assam)
..............Petitioner (In Jail)
- Versus-
1. The Union of India
Represented by the Directorate of
Revenue Intelligence
2. The State of Assam
............ Respondents.
PRESENT
HON'BLE MR. JUSTICE B. D. AGARWAL
For the Petitioner ... Shri N Dutta, learned senior counsel as Amicus
Curiae, Smti SK Nargis, Sri A Neog, Advocates
For the Respondents ... Shri Z Kamar, Shri K Munir, Public Prosecutors,
Shri D Chakraborthy, Standing Counsel for DRI
Date of hearing ... 08.05.2014
Date of Judgment ... 27.05.2014
JUDGMENT ( CAV )
"What procedure to be adopted by the learned Sessions courts for conducting trial of cases registered on the basis of complaints lodged by the Customs and Revenue Departments under NDPS Act i.e., cases instituted otherwise than on police report".
Bail Appln. No.883 of 2014 Page 1 of 202. The aforesaid legal issue cropped-up while hearing the instant bail application, filed under Section 439 of the Criminal Procedure Code, 1973 by one of the accused seeking regular bail in connection with Sessions (Special) Case No. 280(K) of 2004, pending before the learned Sessions Judge, Kamrup (M), Guwahati, arising out of DRI Case No. 1 of 2004 under Section 20 (b)
(ii) (C) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (in short 'NDPS Act'). During the course of hearing the learned counsel for the accused pointed out that the accused is in judicial custody since last more than 5(five) years. When it came to light of the court that the case is pending for disposal since last one decade the court became inquisitive to ascertain as to what is the root cause for long period taken in the trial of NDPS cases. Hence, the aforesaid legal question was framed to decide and direct the trial courts to adopt such procedure which would provide speedy trial of the cases and promote the cause of justice.
3. Heard Smti SK Nargis, learned counsel for the accused. Also heard Shri D. Chakraborty, learned Standing counsel for the DRI. Keeping in mind the wide ramification of this judgment the State of Assam was also impleaded as a party, besides appointing Sri N. Dutta, learned Sr. counsel as Amicus Curiae to address the court only on the legal issue. The State was represented by Z. Kamar, learned Public Prosecutor, Assam and Shri K. Munir, learned Addl. PP.
4. Before embarking upon to answer the legal issue I would first dispose of the prayer for bail. According to the learned counsel for the accused the case is pending since last 10 (ten) years and, out of nine cited witnesses, evidence of only four witnesses have been completed so far. Besides this, the accused is in jail since last more than five years. Smti Nargis, the learned counsel for the accused further submitted that in another case under NDPS Act the High Court has very recently granted bail to the same accused and in other case under IPC also the accused is on regular bail. Besides this one more case was registered under NDPS Act in the State of West Bengal and in the said case the accused/petitioner has been acquitted.
Bail Appln. No.883 of 2014 Page 2 of 205. In another Bail Application No. 386 of 2013 this court has observed that the restriction to release the accused on bail, who is booked under Section 19 or 24 or 27 A or for the offences involving commercial quantity cannot be converted into a case for preventive detention. In other words, the prosecution must come out with tangible evidence that the accused would in all probability repeat the offence, while on bail. In the case before me the learned counsel for the accused submitted that the witnesses so far examined by the prosecution have not whispered about the involvement of the present accused in the aforesaid offence. Besides this, the learned counsel for the accused relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Supreme Court Legal Aid Committee-Vs- Union of India; reported in (1994) 6 SCC 731 wherein the Apex Court gave certain directions for speedy trial of the narcotic cases. The guidelines with respect to releasing the accused persons on bail are reproduced below:
"15. But the main reason which motivated the Supreme Court Legal Aid Society to file this petition under Article 32 of the Constitution was the delay in the disposal of cases under the Act involving foreigners. The reliefs claimed included a direction to treat further detention of foreigners, who were languishing in jails as undertrials under the Act for a period exceeding two years, as void or in any case they be released on bail and it was further submitted by counsel that their cases be given priority over others. When the petition came up for admission it was pointed out to counsel that such an invidious distinction between similarly situate undertrials who are citizens of this country and who are foreigners may not be permissible under the Constitution and even if priority is accorded to the cases of foreigners it may have the effect of foreigners being permitted to jump the queue and slide down cases of citizens even if their cases are old and pending since long. Counsel immediately realised that such a distinction if drawn would result in cases of Indian citizens being further delayed at the behest of foreigners, a procedure which may not be consistent with law. He, therefore, rightly sought permission to amend the cause-title and prayer clauses of the petition which was permitted. In substance the petitioner now prays that all undertrials who are in jail for the commission of any offence or offences under the Act for a period exceeding two years on account of the delay in the disposal of cases lodged against them should be forthwith released from jail declaring their further detention to be illegal and void and pending decision of this Court on the said larger issue, they should in any case be released on bail. It is indeed true and that is obvious from the plain language of Section Bail Appln. No.883 of 2014 Page 3 of 20 36(1) of the Act, that the legislature contemplated the creation of Special Courts to speed up the trial of those prosecuted for the commission of any offence under the Act. It is equally true that similar is the objective of Section 309 of the Code. It is also true that this Court has emphasised in a series of decisions that Articles 14, 19 and 21 sustain and nourish each other and any law depriving a person of "personal liberty" must prescribe a procedure which is just, fair and reasonable, i.e., a procedure which promotes speedy trial. See Hussainara Khatoon (IV) v. Home Secy., State of Bihar7, Raghubir Singh v. State of Bihar8 and Kadra Pahadiya v. State of Bihar9 to quote only a few. This is also the avowed objective of Section 36(1) of the Act. However, this laudable objective got frustrated when the State Government delayed the constitution of sufficient number of Special Courts in Greater Bombay; the process of constituting the first two Special Courts started with the issuance of notifications under Section 36(1) on 4-1-1991 and under Section 36(2) on 6-4-1991 almost two years from 29-5-1989 when Amendment Act 2 of 1989 became effective. Since the number of courts constituted to try offences under the Act were not sufficient and the appointments of Judges to man these courts were delayed, cases piled up and the provision in regard to enlargement on bail being strict the offenders have had to languish in jails for want of trials. As stated earlier Section 37 of the Act makes every offence punishable under the Act cognizable and non-bailable and provides that no person accused of an offence punishable for a term of five years or more shall be released on bail unless (i) the Public Prosecutor has had an opportunity to oppose bail and (ii) if opposed, the court is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and is not likely to indulge in similar activity.
On account of the strict language of the said provision very few persons accused of certain offences under the Act could secure bail. Now to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable and contrary to the spirit of Section 36(1) of the Act, Section 309 of the Code and Articles 14, 19 and 21 of the Constitution. We are conscious of the statutory provision 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 adverted to this section in the earlier part of the judgment. 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 v. State of Punjab10. 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 in A.R. Antulay v. R.S. Nayak11, release 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 Bail Appln. No.883 of 2014 Page 4 of 20 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 would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. What then is the remedy? 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 persons whose trials have been delayed beyond reasonable time and are 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 but 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 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 Bail Appln. No.883 of 2014 Page 5 of 20 furnishes bail in the sum of Rupees one lakh with two sureties for like amount".
6. I have already noted earlier that the accused is in custody since last more than five years and there is no possibility of immediate conclusion of the trial. Hence, I hold that if the accused is directed to be detained in custody it would amount to abuse of the power of court besides violation of fundamental right of speedy trial of the accused. Hence, the bail prayer is accepted solely on the ground of long period of custody of the accused and long period of pendency of the case and not on any other ground.
7. For the foregoing reasons, the accused is allowed to go on bail by executing his personal bond with two sureties of one lac each. It is further made clear that the sureties should be local government servants in the rank of Class II officers to the satisfaction of the learned Sessions Judge, Kamrup (M), Guwahati. The accused is further directed to appear in the trial court on every date of trial, unless there is special exigency of his absence, and he shall not try to influence the prosecution witnesses.
8. With the aforesaid directions the bail application is disposed of.
9. For resolving the issue of trial procedure of NDPS cases instituted by way of complainants, otherwise than on police reports, it would be necessary to look at various provisions of the NDPS Act and the CrPC, which are extracted below for ready reference.
Narcotic Drugs and Psychotropic Substance Act, 1985 "36. Constitution of Special Courts.--(1) The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such areas as may be specified in the notification.
(2) A Special Court shall consist of a Single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court.
Explanation.--In this sub-section, "High Court" means the High Court of the State in which the Sessions Judge or the Additional Bail Appln. No.883 of 2014 Page 6 of 20 Sessions Judge of a Special Court was working immediately before his appointment as such Judge.
(3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge.
36-A. Offences triable by Special Courts.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973--
(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;
(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of Section 167 of the Code of Criminal Procedure, 1973, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:
Provided that in cases which are triable by the Special Court where such Magistrate considers--
(i) when such person is forwarded to him as aforesaid; or
(ii) upon or at any time before the expiry of the period of detention authorised by him;
that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;
(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section;
(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.
Bail Appln. No.883 of 2014 Page 7 of 2036-C. Application of Code to proceedings before a Special Court.--Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.
36-D. Transitional provisions.--(1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, which is triable by a Special Court shall, until a Special Court is constituted under Section 36, notwithstanding anything contained in the Code of Criminal Procedure, 1973, be tried by a Court of Session.
(2) Where any proceedings in relation to any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 are pending before a Court of Session, then, notwithstanding anything contained in sub-section (1), such proceeding shall be heard and disposed of by the Court of Session:
Provided that nothing contained in this sub-section shall affect the power of the High Court under Section 407 of the Code of Criminal Procedure, 1973 to transfer any case or class of cases taken cognizance by a Court of Session under sub-section (1).]
51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures.--The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act."
Criminal Procedure Code, 1973 "4. Trial of offences under the Indian Penal Code and other laws.
(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provision hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Bail Appln. No.883 of 2014 Page 8 of 205. Saving.
Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) Upon receiving a complaint of facts which constitute such offence;
(b) Upon it police report of such facts;
(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) ***** ***** ***** *****
200. Examination of complainant.
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) If the Magistrate makes over the case for inquiry, or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.
CHAPTER-XVIII TRIAL BEFORE A COURT OF SESSION
225. Trial to be conducted by Public Prosecutor.
In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.
226. Opening case for prosecution.
When the accused appears or is brought before the court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought Bail Appln. No.883 of 2014 Page 9 of 20 against the accused and stating by what evidence he proposes to prove the guilt of the accused.
227. Discharge.
If, upon consideration of the record of the case and the documents submitted herewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
228. Framing of charge.
(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, 1[ or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
229. ***** ***** *****
230. ***** ***** *****
231. Evidence for prosecution.
(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in this discretion, permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.
232. Acquittal.
If after taking the evidence for the prosecution, examining the aceused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal.
Bail Appln. No.883 of 2014 Page 10 of 20233. Entering upon defence.
(1) Where the accused is not acquitted under section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thercof.
(2) lf the accused puts in any written statement, the Judge shall file it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
234 to 237 ***** ***** ***** CHAPTER-XIX TRIAL OF WARRANT-CASES BY MAGISTRATES A. Cases instituted upon a police report
238. Compliance with section 207.
When in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial; the Magistrate shall satisfy himself that he has complied with the provisions of section 207.
239. When accused shall be discharged.
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
240. Framing of charge.
(1) If, upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in opinion could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.
241. ***** ***** ******
242. Evidence for prosecution.
(1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused Bail Appln. No.883 of 2014 Page 11 of 20 under section 241 Magistrate shall fix a date for the examination of witnesses.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution:
Provided that the Magistrate may permit the cross-
examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.
243. Evidence for defence.
(1) to (3) ***** ***** ***** B. Cases instituted otherwise than on police report.
244. Evidence for prosecution.
(1) When, in any warrant-case instituted other wise than on a police report the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summon to any of its witnesses directing him to attend or to produce any document or other thing.
245. When accused shall be discharged.
(1) If, upon taking all evidence referred to in section 244 the Magistrate considers, for reasons to be recorded that the case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing, in this section shall be deemed to prevent a Magistrate from discharging he accused at any previous stage of the case if, for reasons to be recorded Magistrate, he considers the charge to be groundless.
246. Procedure where accused is not discharged (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground r presuming that the accused has committed an offence triabie under this Chapter,wilich such Magistrate is competent to try and which, in his opinion, could be adeqtiateiv punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guiltty or has any defence to make.
(3) lf the accused guilty, the Magistrate shall record the plea, and may, in his discretion convict him thereon.
Bail Appln. No.883 of 2014 Page 12 of 20(4) lf the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub- section (3) he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthnwitth whether he wishes to cross-examine any, and if so. which of the witnesses for the prosecution whose evidence has been taken.
(5) lf he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination (if any), they shall also be discharged.
247. Evidence for defence. ***** ***** ***** "
10. Coming to the legal issue of the trial procedure Shri N. Dutta, learned amicus curiae referred to various provisions of the NDPS Act and CrPC. Referring to the judgment of the Apex Court rendered in the case of Rajkumar Karawal -Vs- Union of India (AIR 1991 SC 45): (1990) 2 SCC 409, the learned amicus curiae argued that if there is any inconsistency between the provisions of the NDPS Act and the CrPC the provisions laid down in the Act would prevail. Referring to Section 36 A (1) and (d) of the Act the learned counsel contended that under this law a Special Court may act upon a complaint/offence report submitted by the investigating agency other than a police officer despite the interdict provided under Section 193 of the CrPC. In fact, the Hon'ble Supreme Court has also held that there is nothing in the NDPS Act to indicate that all the powers under Chapter XII of the Code, including the power to file a report under Section 173, have been expressly conferred on the officers under the act, though they are invested with the powers of the Officer-in-Charge of a police station under Section 53 for the purpose of investigation of the offence under the Act.
11. A complaint submitted in the court otherwise than on a police report is essentially a complaint under Section 190 of the CrPC Hence, the procedure prescribed under Chapter XV has to be followed. Section 200 of the CrPC provides for recording of initial statement of the complainant and his witnesses. However, there are certain exceptions. Under proviso (a) and (b) Bail Appln. No.883 of 2014 Page 13 of 20 the trial Magistrate may exempt examination of the public servant before issuing process to the accused persons. Shri Dutta, learned amicus curiae admitted that under proviso (a) to Section 200 CrPC there is no necessity to examine the officers of Customs and DRI before issuing the process but the learned counsel did not agree to the proposition that the complainant's witnesses need not be examined at all by the trial court before framing of charges.
12. Shri Kamar, learned Public Prosecutor for the State also enlightened the court regarding the procedure being followed by the Sessions courts when a complaint/offence report is filed by DRI and other departments. According to him, though initial statement under Section 200 is exempted the prosecution witnesses are examined twice, once before framing of charges and once during the trial. The learned PP also admitted the fact that the witnesses are also allowed to be partly cross-examined before framing of charges. In this way one witness is examined and cross-examined thrice. The learned PP also admitted the fact that since special courts have not been constituted in the State of Assam the procedure prescribed under Chapter XIX-B i.e., cases instituted otherwise than on police report is being followed. Referring to Section 3 (32) of the General Clauses Act, the learned PP submitted that the definition of 'Magistrate' includes Sessions Judge for invoking of the powers under CrPC. The learned PP also argued that since NDPS Act is a special law the learned Sessions Judges are empowered to take cognizance of the complaints directly and proceed to hold the trial even without commitment of the case by the Magistrates. In support of this submission the learned PP relied upon a Division Bench judgment of Gauhati High Court, rendered in the case of Sankar Singh-Vs-State of Assam; reported in 1994 CriLJ 213. In the said case it has been held that the provisions of the CrPC are applicable only to the extent permitted under the Act and has specifically held that there is no scope for commitment of NDPS cases by the Judicial Magistrates.
13. The learned PP also referred to a judgment from the Rajasthan High Court rendered in the case of Sarvan Kumar -Vs- State of Rajasthan; (2012 CriLJ 1480). In this case also His Lordship has held that the complaints by Bail Appln. No.883 of 2014 Page 14 of 20 DRI and Customs department can be directly filed in the Sessions Court and it cannot be given a colour of final report by police under Section 173 of the CrPC. Referring to the judgment of the apex court rendered in the case of Supreme Court Legal Aid Committee (supra) the High Court has held that the special court may take cognizance of an offence without the accused being committed to him for trial.
14. In contrast, Shri Munir, the learned Addl. PP referred to a Division Bench judgment of the Gauhati High Court, rendered in the case of Arun Kanango -Vs- D. Pakayantine; reported in 2008(2) GLT 168. In this case a complaint was submitted before the Special Judge by the officers of the customs and on receipt of the complaint/offence report the learned special judge proceeded with the trial, provided for sessions cases under Chapter XVIII (Sections 225 to 237). The accused persons assailed the procedure adopted by the Sessions Court. However, the objection was overruled by the High Court with the following observations:
"( 9 ) One of the common grounds taken by the learned counsel for the appellants was that the learned Special Judge erred in following the procedure prescribed under Section 225 to 237 included in Chapter-XVIII of the Code of Criminal Procedure for trial before the Court of Sessions instead of the procedure provided under 238 to 250 prescribed for trial of warrant cases by Magistrate. Relying on the observation made by the Apex Court in R. S. Nayak Vs. A. R. Antulay (1984) 3 SCC 86, the learned counsel contended that a Special Judge is required to follow the procedure prescribed for trial of warrant cases by Magistrates. There is no doubt that the learned counsel is fully supported by the decision relied on. It must, however, be noted that the case cited is in relation to a procedure to be followed by a Special Court constituted under the provisions of PC Act 1988 and not in relation to a Special Court constituted under NDPS Act 1985. While Section 5 of the PC Act specifically provides that a Special Judge, while trying the accused person shall follow the procedure prescribed by Crpc 1973 for trial of warrant cases by Magistrate, no such corresponding provision has been incorporated in the NDPS Act. The only provision contained in Section 36-C of the NDPS Act, provides as follows :
"36-C. Application of Code to proceedings before a Special Court- Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Bail Appln. No.883 of 2014 Page 15 of 20 Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor. "
( 10 ) A plain reading of the above provision makes it clear that the provisions of the Code of Criminal Procedure, 1973, apply to the proceedings before a Special Court and for the purposes of the said provisions the Special Court has to be deemed to be a Court of Sessions. The above provision, therefore, leaves no scope for any doubt that a Special Court constituted under NDPS Act for the purpose of trying offences under the Act would be a Court of Sessions. In this regard it is important to bear in mind that status of a Sessions Court has been conferred upon the Special Court by a deeming fiction for empowering such special court to follow the provisions of the Code at the time of trial of the case. If such is the object behind conferring the status of session court upon the special court there is no reason as to why a procedure prescribed for trial of warrant cases by Magistrate should be applicable to the Special Court. In Amratlal Devdanbhai Soni Vs. Director of Revenue Intelligence 1998, Crl. L. J. 705, the Gujarat High Court has expressed the view that in a case of NDPS Act there being no committal proceedings, once the cognizance is taken on filing the complaint, the only stage is of Sections 225 and 226 and the trial begins from that stage. Stage of discharge or framing of charge under Sections 227 and 228 comes next. Keeping in view the specific provision already noted above and also the fact that NDPS Act is a special Act, we find ourselves in respectful agreement with the above view of Gujarat High Court. It thus follows that the same procedure which would be applicable to the Court of Session would be applicable to the Special Court constituted under the NDPS Act. No prejudice can, therefore, be said to have been caused to the appellants in the proceedings before the learned Special Judge on account of the fact that the procedure prescribed for trial before a Court of Sessions was followed. We therefore find no procedural illegality in the trial before the learned Special Judge and any merit in the submission."
15. In a recent judgment of the Hon'ble Supreme Court, given in the case of Thana Singh -Vs- Central Bureau of Narcotics ;reported in (2013) 2 SCC 590: 2013 CriLJ 1262 the Hon'ble Apex court has emphasized expeditious and speedy trial of the offences under the NDPS Act. Their Lordships have issued various guidelines as to when the adjournment should be granted; the necessity of recording evidence on day to day basis, how the public prosecutors should be appointed to deal with narcotic cases, how the copies of the police report etc can be furnished to the accused persons and certain other Bail Appln. No.883 of 2014 Page 16 of 20 guidelines. For the issue I have taken-up in this case only the observations made by the apex court in paragraphs 10 and 11 are relevant, which are quoted below:
"10. Between harmonising the rights and duties of the accused and the victim, the witness is often forgotten. No legal system can render justice if it is not accompanied with a conducive environment that encourages and invites witnesses to give testimony. The web of antagonistic litigation with its entangled threads of investigation, cross-examination, dealings with the police, etc. as it is, lacks the ability to attract witnesses to participate in a process of justice; it is baffling that nonetheless, systems of examination that sprout more disincentives for a witness to take the stand are established. Often, conclusion of examination alone, keeping aside cross-examination of witnesses, takes more than a day. Yet, they are not examined on consecutive days, but on different dates spread out over months. This practice serves as a huge inconvenience to a witness since he is repeatedly required to incur expenditure on travel and logistics for appearance in hearings over a significant period of time. Besides, it often causes unnecessary repetition in terms of questioning and answering, and also places greater reliance on one's ever-fading memory, than necessary. All these factors together cause lengthier examinations that compound the duration of trials.
11. It would be prudent to return to the erstwhile method of holding "sessions trials" i.e. conducting examination and cross- examination of a witness on consecutive days over a block period of three to four days. This permits a witness to take the stand after making one-time arrangements for travel and accommodation, after which, he is liberated from his civil duties qua a particular case. Therefore, this Court directs the courts concerned to adopt the method of "sessions trials" and assign block dates for examination of witnesses."
16. The fundamental right of under trial prisoners for speedy trial of NDPS cases was recognized about two decades ago in the case of Supreme Court Legal Aid Committee (supra). Even for other offences the Hon'ble Supreme Court is always consistent with the theory of speedy trial and avoiding delay in disposal of cases, keeping in mind the fundamental rights of the accused persons provided under Article 21 of the Constitution of India. One can refer to the judgment of the apex court; rendered in the case of Common Cause - Vs- Union of India; reported in (1996) 4 SCC 33;(1996) 6 SCC 775 and Raj Deo Sarma -Vs. State of Bihar; reported in (1998) 7 SCC 507; (1999) 7 SCC Bail Appln. No.883 of 2014 Page 17 of 20 604 and the recent judgment in the case of Indian Bank Association -vs- Union of India in WP(C) No.18 of 2013 ( Date of order 21.4.2014). The judgment in the present case is also to devise a procedure which may further the speedy trial of cases under NDPS Act.
17. During the course of hearing of this bail application some statistics were collected from the Sessions Courts in the State of Assam and it was gathered that till 31.12.2013 a total number of 962 cases were pending under NDPS Act and out that 1/3rd cases i.e., 330 cases are more than 5 years old. The reports of the Sessions Judges further revealed that different procedures are being adopted for trial of offence reports, filed by DRI and Customs department. Some courts follow the procedure laid down for warrant cases and some courts are adopting the procedure prescribed for trial of Sessions Cases. I have already mentioned earlier that when the cases are tried, adopting warrant procedure, witnesses are at least summoned in the court thrice.
18. Section 36 of the NDPS Act gives clear indication that Special Courts are being constituted for speedy trial of narcotic cases and to pursue this object certain special procedure for filing of the complaint directly in the Sessions courts/Special courts and also with regard to search, seizure and disposal of narcotics etc have been provided in the Act. Section 35 of the Act also vests the powers of Officer-in-Charge of a police station upon the officers of DRI and Customs etc and Section 53 A provides that statements made and signed by a person before the empowered officers shall be relevant for the purpose of proving the truth of the facts under certain circumstances. Even otherwise there are scores of judgments from the Hon'ble Supreme Court and the High Courts that the statements of the accused persons recorded under Section 67 of the Act are insulated from the interdict of Sections 25 and 26 of the Evidence Act. I have already noted earlier that the law also provides taking cognizance of the complaints directly by the Sessions courts/Special courts despite there being restrictions under Section 193 of the CrPC. In this way, all the provisions of the Act propagate the theory of speedy trial of the narcotic offences under the Act. Hence, I hold that the hurdles in between should also be removed by this court.
Bail Appln. No.883 of 2014 Page 18 of 2019. The Gauhati High Court, in the case of Arun Kanungo has already approved the procedure of Sessions trial cases to try the offences under NDPS Act, provided the offences are triable by the sessions courts or the special courts. The view taken by the Gauhati High Court now finds support from the Apex Court. In the case of Thana Singh their Lordships have approved trial of cases, involving narcotic drugs, as 'sessions trial' and preferably on consecutive dates over a block/period of three to four days. Their Lordships have taken note of the ordeal of the witnesses, who have to come to the court repeatedly for giving evidence. In my considered opinion, if the procedure prescribed for trial of warrant cases instituted on a complaint otherwise than on a police report, a witness has to come to the court thrice, whereas, in the sessions trial a witness can be examined and cross-examined on the same day.
20. In the case of Gangula Ashok-vs- The State of A.P. (AIR 2000 SC
740): (2000) 2 SCC 504 the Hon'ble Supreme Court has approved the trial of offences under Schedule Castes and the Schedule Tribes (Prevention of Atrocities) Act, 1989 as sessions trial. In this judgment their Lordships have also dealt with Sections 4 and 5 of the CrPC and have held that these provisions of law permit departure from the interdict of Section 193 for trying an offence under a special enactment. The Apex Court has held that if the special enactment contains any provision, which is contrary to the provisions of the CrPC, such other provision would apply in place of the particular provision of the Code. However, if there is no such contrary provision in the special law then the provisions of the Code would apply to the matters covered thereby.
21. I have already noted earlier that the NDPS Act contains special provisions with regard to search, seizure, arrest, granting bail, recording the statements of witnesses and accused persons, disposal of the seized narcotics and substances etc. However, the Act is totally silent as to what procedure should be adopted for trial of the cases. Under Section 36 A (1) (a) it has been provided that all offences under the Act, which are punishable with imprisonment for a term of more than 3 years shall be triable only by the special courts. In this way the offences which attract punishment of less than 3 Bail Appln. No.883 of 2014 Page 19 of 20 years are triable by the courts of judicial magistrates. Section 36 D provides mechanism for transitional period. It provides that until a special court is constituted under Section 36 all the offences under the NDPS Act can be tried by a court of Sessions. Section 36 C makes it clear that all the provisions of the CrPC shall apply to the proceedings before a special court and for the said purpose the special court shall be deemed to be a Court of sessions. All these provisions lead to the only conclusion that the offences under the NDPS Act, which are punishable for more than 3 years, are to be tired by the Court of Sessions/Special Courts and the procedure provided for sessions trial cases under Chapter-XVIII of the Code should be followed. For removing any confusion it is further provided that the requirements and the pre-conditions of the trial provided under section 207 and 209 shall be followed by the Sessions courts/Special courts since the complaints/offence reports are directly filed in the court of sessions. These directions are given in exercise of powers conferred upon me U/ss 482 and 483 of the Criminal Procedure Code, 1973 and under Article 227 of the Constitution of India.
22. In view of the reasoning, alluded herein above, I answer the legal issue framed at the outset of the judgment that the Sessions Courts/Special Courts are to follow the procedure laid down in Chapter XVIII even for trial of narcotic cases, instituted upon complaints/offence reports otherwise than upon police reports.
23. The High Court registry is directed to communicate a copy of this judgment to all the Sessions Judges under the judicature of the Gauhati High Court.
JUDGE Upadhyaya/Nivedita Bail Appln. No.883 of 2014 Page 20 of 20