Bombay High Court
Mehmood Mirza And Etc. vs The Assistant Collector Of Customs ... on 22 April, 1996
Equivalent citations: 1997(1)BOMCR400, 1997CRILJ181, 1996(2)MHLJ1031
ORDER
1. This petition under Art. 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure is filed by the petitioner-original accused No. 2 praying for quashing the criminal prosecution instituted against him in Criminal Case No. 123/CW of 1983 pending in the Court of the learned Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay, instituted against him and other accused for the offences punishable under the provisions of the Customs Act and under the provisions of the Dangerous Drugs Act.
2. It is the case of the prosecution on 25th June, 1978, sometimes after midnight, one Mohammed Husain Ahmed Patil, working as an associate shipper for M/s. Wadi Enterprises, along with one Francis Moraes working as a clerk with M/s. Wamdeo and Co., approached Customs Officer Shri S. R. Bhalla, who was on duty at the Air India Cargo Warehouse, Santacruz Airport, Bombay. with a shipping bill for the export of 195 packages said to contain Alphonso mangoes for being shipped by Air India Flight No. 135 to London on 25 June, 1978. The shipping bill as in the name of adi Enterprises as a consigner though, in fact, this firm no longer existed. The airway bill of Air India was also presented along with the said shipping bill. As per the normal procedure, Shri Bhalla examined the 195 packages and found them to be in order. However, shortly thereafter Shri Bhalla found 50 identical packages without labels lying near the consignment of the said 195 packages and saw the said Mohammed Patel, one Dorai Raj and accused Nos. 4 and 5 substituting the said 195 examined packages without labels which were also of similar appearance. These four persons were found changing the labels on the said 195 packages. When accosted, all the four persons tried to run away. Accused No. 1, who was in the vicinity of the warehouse, also tried to run away. Mohammed Patel and Dorai Raj were apprehended by Shri Bhalla while the other three manged to escape.
3. It is the further case of the prosecution that on search of the said packages, Hashish collectively weighing 108 Kgs. was recovered from 36 packages out of the 195 packages and out of the 50 packages, 12 packages were found to contain 36 Kgs. of Hashish. The two persons could not give satisfactory account for the said Hashish. Therefore, the same was seized under a panchanama. Investigation commenced. During the investigation, accused No. 1 was arrested. The other accused were also arrested. Statements of witnesses were recorded. After completion of investigation charge-sheet was filed against the accused persons before the learned Additional Chief Metropolitan Magistrate's Court, Esplanade, Bombay, for offences punishable under Sections 135(1)(a) and 135(1)(ii) of the Customs Act and under Section 13 read with Sections 7, 20 and 21 of the Drugs Act.
4. The learned Additional Chief Metropolitan Magistrate, by his order dated 28th October 1988, discharged accused No. 3 and adjourned the matter for framing charges against the other accused Nos. 1 and 2 for the offences with which they have been charged. The petitioner-accused No. 2 preferred Criminal revision Application No. 15 of 1989 before the Sessions Court, Bombay, against the aforesaid order and the learned Additional Sessions Judge, Bombay, by his order dated 22nd January, 1989 rejected the said revision application. Hence this writ petition by the petitioner-accused No. 2 praying for quashing the criminal proceedings instituted against him before the learned Additional Metropolitan Magistrate's Court.
Heard Mr. Shirish Gupte, learned Counsel for the petitioner.
Mr. Shirish Gupte, learned Counsel appearing for the petitioner, has vehemently argued that there is a delay of 18 years in completing the prosecution which deprives the liberty of a citizen and violates Art. 21 of the Constitution of India.
The most important question that requires to be considered by me is :
Does it deprive the personal liberty and life of a citizen in violation of Art. 21 of the Constitution of India ?
In the case of Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, , it has been observed thus (para 5) :-
"A procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair of just' and it would fall foul of Art. 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Art. 21."
5. The above view is also reflected in the Full Bench judgment in Madheshwardhari Singh v. State of Bihar, , Full Bench, wherein it has been observed thus (paras 9 and 24) :-
"In all criminal prosecutions the right to a speedy public trial is now an inalienable fundamental right of the citizen under Art. 21 of the Constitution ..........................................
The fundamental right to a speedy public trial extends to all criminal prosecutions for all offences generically, irrespective of their nature. It is not confined or constricted to either serious or capital offences only."
6. In the case of Abdul Rehman Antulay v. R. S. Nayak, after considering the various judgments delivered by the Apex Court and various High Courts, the Supreme Court has laid down some guidelines regarding speedy trial viz., (1) Whether the accused is responsible for delay ?
(2) Whether he is prejudiced by such delay in any manner ? Of course, in some case the delay may itself amount to prejudice.
(3) Nature of offence with which the accused is charged.
(4) Whether the fundamental right to a speedy trial enshrined in Art. 21 of the Constitution of India by precedential mandate is confined to only capital offences or is attracted to all offences generally ?
(5) Whether the aforesaid right to a speedy trial is applicable only to the proceedings in Court stricto senso or includes with its sweep the preceding Police investigation as well ?
(6) Is a speedy trial equally mandated by both the letter and spirit of the Code of Criminal Procedure, 1973 ?
(7) Whether the ratio of Ramdaras Ahir's case, 1985 Cri LJ 584 (Pat) (supra) and in Maksudan Singh's case. (FB) (supra) are applicable equally to all offences and irrespective of the fact whether the proceedings are a trial or an appeal against acquittal ?
(8) Whether an outer limit to concretise the right to a speedy public trial is envisioned by principle of precedent ?
7. Having regard to the facts and circumstances of the case, in my view, the apparent inordinate delay in completing the prosecution will deprive the right enshrined under Art. 21 of the Constitution of India to the petitioners or it can be held that the prosecution launched against the petitioners is in violation of Art. 14 of the Constitution of India. In my opinion, the petitioners are entitled to succeed on the first point that there is inordinate delay in completing the prosecution. There is, in fact, a delay of 18 years. In the instant case, the said delay would amount to deprivation of fundamental right guaranteed under Art. 21 of the Constitution of India. It is true that, as held by the Supreme Court, there is no time limit for speedy trial. But reasonable time for fair and just trial is further guaranteed to a citizen, so that no mischief would be played or misuse of power would be done with some ulterior motive. A citizen cannot be kept on hanging for an indefinite period and time; that the petitioner waiting for 18 years, the petitioners would loose all faith and hope in the administration of justice, thus it will be breach of right of free and fair justice. "Delay in justice is denial of justice", the theory no doubt is a golden guideline for the administration of free and fair justice to a citizen. The onus of proof of delay is susceptious physiognomy - it should not be allowed to use or interpreted always in favour of the prosecution. Therefore, in my view, the prosecution launched against the petitioner, which could not be completed even after 18 years under one pretext or the other, at this stage, is liable to be quashed and set aside.
In the result, the petition is allowed. The proceedings in Criminal Case No. 123/CW of 1983 pending on the file of the learned Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay, are hereby quashed and the Criminal Case No. 123/CW of 1983 is also quashed.
Rule is made absolute.
8. Petition allowed.