TMI Blog2001 (8) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... d:- 16-8-2001 - G.B. Pattanaik and Ruma Pal, JJ. REPRESENTED BY : S/Shri V.A. Mohta, Sr. Advocate, Harjinder Singh, Ms. Vandana Sharma and Shri Navdeep Brar, Advocates, for the Appellant. S/Shri Soli J. Sorabjee, Attorney General, Anoop G. Chaudhary, Sudhir Chandra, Sr. Advocates, Ms. Sushma Suri, Ms. Sunita Sharma and Shri Manish Singhvi, Smt. Nitya Ramakrishnan, Shri M.A. Chinnasamy and Achintya Dvivedi, Advocates, for the Respondents. [Judgment per : Ruma Pal, J.]. - Leave granted. 2. The appellant is under trial for offences alleged to have been committed under Sections 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (referred to hereafter as the Act ). The respondent No. 1. was a co-accused. The appellant has challenged an order dated 31-1-2000 by which the High Court upheld an order of the Central Government granting the respondent No. 1 immunity from prosecution under Section 64 of the Act. In this appeal, we are concerned with the scope of the power under Section 64 of the Act and whether it can be exercised by the Central Government in favour of a person after the Sessions Judge has rejected an application by such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granting pardon to the respondent No. 1. 6. After this, the application made by the respondent No. 1 praying for immunity from prosecution from the offences with which he was charged was considered by NCB. The transcript supplied by the respondent No. 1 of the telephonic conversation with the appellant, the original tape-recorded version of which was with the prosecution, was also considered. The respondent No. 1 stated that he was willing to identify the appellant s voice in the tape-recorded conversation. The application was allowed by the NCB and immunity was granted to the respondent No. 1 under Section 64 of the Act after recording the reasons in writing on 18th August, 1992. It was noted that the appellant was a big time drug trafficker and main organiser of the syndicate. He operates very cleverly avoiding direct exposure. The available evidence against him is the Chits recovered from his house. The other evidence is his intercepted telephonic conversation with Shri Vipin Jaggi (namely the respondent No. 1 herein). The order took note of the rejection of the respondent No. 1 s application for pardon by the Sessions Judge but went on to state that the powers under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court on 21st September, 1999. The appellant has not challenged this order before us. 9. The writ application was finally allowed by the High Court by the order dated 31-1-2000 It was held by the High Court that the Sessions Judge was wrong in limiting the power under Section 64 to a stage before the prosecution was commenced. According to the High Court, neither the language of Section 64 of the Act nor of Section 306 and 307 Cr.P.C. could be construed in a manner so as to hold that the power under Section 64 came to an end on the taking of cognizance of the offence by the Trial Court. The High Court also relied upon the decisions i.e. Sardar Iqbal Singh v. State (Delhi Admn.) - AIR 1977 SC 2437, Sanjay Gandhi v. Union of India and Others - AIR 1978 SC 514, State (Delhi Admn.) v. Jagjit Singh - AIR 1989 SC 598, Suresh Chandra Bahri and Others v. State of Bihar - AIR 1994 SC 2420) to hold that immediately upon the tendering of immunity to the respondent No. 1 under Section 64, the respondent No. 1 would stand discharged whereupon he ceased to be an accused and could be examined as a witness. 10. The appellant then filed an application under Article 215 of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aria v. State of Maharashtra - AIR 1968 SC 938. 15. It was in recognition of this need that the Code of Criminal Procedure, 1898 contained provisions like Section 337 and 338 under which the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of the first class at the stage of inquiry, and the Trial Court, after commitment and before judgment, could grant pardon to a co-accused. The pardon was made conditional upon the person making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence, and to every other person concerned, whether as principal or abettor, in the commission thereof. 16. The issue has to be weighed in the balance so that at the cost of not bringing one of the offenders to book, the others or at least the principal offender can be convicted. ..The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lacks of evidence. Suresh Chandra Bahri v. State of Bihar - 1995 Supp. (1) SCC 80, 106. 17. The provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refusing pardon to the respondent No. 1 even though it was actively canvassed for by the Special Public Prosecutor, was wrong. It was not for the Sessions Judge to have considered the possible weight of the approver s evidence, even before it was given. In any case, the evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. But the suspicion may be removed and if the evidence of an approver is found to be trustworthy and acceptable then that evidence might well be decisive in securing a conviction [see Suresh Chandra Bahri v. State of Bihar (supra)]. The Sessions Judge could not and indeed should not have assessed the probable value of the possible evidence of the respondent No. 1 in anticipation and wholly in the abstract. 20. The role of the prosecutor under Section 307 is distinct and different from the part he is called on to play under the provisions of Section 321 Cr.P.C. Under Section 321, the Public Prosecutor or the Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions for exercising effective control not only of narcotic drugs but also of psychotropic substances particularly when the country has for the few years been increasingly facing the problem of transit traffic of drugs coming mainly from some of our neighbouring countries and destined mainly to Western countries. 23. The concern which motivated the enactment of the Act was echoed by this Court in Durand Didier v. Chief Secretary, Union Territory of Goa - AIR 1989 SC 1966 when it said : With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances.............has assumed serious and alarming proportions in the recent years. 24. Under Section 4(1) of the Act, the Central Government is obliged to take all such measures as are deemed necessary for the purpose of preventing and combating the abuse of narcotic drugs and psychotropic substances and the illicit traffic therein. By Notification S.O. No. 96(E), dated 17th March, 1985, the Central Government constituted the Narcotics Control Bureau (NCB) in exercise of its powers under Section 4(3) of the Act to discharge the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdrawn and such person may be tried for the offence in respect of which the tender of immunity was made or for any other offence of which he appears to have been guilty in connection with the same matter. The underlying rationale of Section 64 is that the Government/NCB which is vitally interested in getting hold of the culprits, must be allowed to assess the strength of the evidence available to it and if necessary, bolster its case with evidence of an accomplice. Therefore, the Section serves the same purpose as the grant of pardon to approvers under Section 307 Cr.P. C. 29. The object of Section 64 being the same as Section 307, it should logically follow that it may be exercised at any time during the course of the trial. It is true that the words immunity from prosecution have been used, but the phrase does not mean anything more than the power to withdraw from prosecution. That, as has been noted earlier, can be exercised at any time in the course of the trial, but before judgment is delivered. 30. However, according to the appellant the word prosecution is limited to the initiation of proceedings and, therefore, the grant of immunity cannot be made subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings under the Public Servants (Inquiries) the Act which had been resulted in his dismissal from service. It was held by this Court that the inquiry under the Public Servants (Inquiries) Act was not a prosecution for the purposes of Article 20 since the inquiry did not result in punishment under that Act. 35. Similarly, in Thomas Dana v. State of Punjab (supra), the only issue was whether a person proceeded against under Section 167(8) of Sea Customs Act could be said to have been prosecuted and punished so that he could claim protection from trial under the Criminal Procedure Code by virtue of Article 20(2) of the Constitution. The issue was answered in the negative. Neither of the cases hold that prosecution only means the initiation of proceedings. 36. The order under Section 64 was fully operative when the applications under Section 311 to examine the respondent No. 1 were filed by the prosecution before the Sessions Judge. The refusal of the applications under Section 311 by the Sessions Judge in fact would result in the withdrawal of the immunity granted to the respondent No. 1 under Section 64 since the immunity had been granted to the respondent No. 1 subject to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
