TMI Blog2013 (1) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Jagdish Singh Khehar JJ. JUDGEMENT 1. This order, and its accompanying directions, are an outcome of the bail matter in Thana Singh Vs. Central Bureau of Narcotics listed before this bench, wherein an accused, who had been languishing in prison for more than twelve years, awaiting the commencement of his trial for an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act ), was consistently denied bail, even by the High Court. Significantly, the maximum punishment for the offence the accused was incarcerated for, is twenty years; hence, the undertrial had remained in detention for a period exceeding one-half of the maximum period of imprisonment. An express pronouncement of this Court in the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners Vs. Union of India Ors. (1994) 6 SCC 731, which held that 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 furnishes bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able assistance of the Additional Solicitor General of India, Mr. P. P. Malhotra , learned amicus curiae, Ms. Anita Shenoy ; Mr. R. K. Gauba , District and Sessions Judge (South), Saket , New Delhi; Registrar Generals of High Courts; Director General, Narcotics Control Bureau, Ministry of Home Affairs, senior-most Officer-in-Charge of Investigations and Prosecution for offences under the NDPS Act; representatives of the Directorate of Revenue Intelligence ( DRI ), Customs and Excise Departments and Police of the States concerned. 5. We lay down the directions and guidelines specified hereinafter for due observance by all concerned as the law declared by this Court under Article 141 of the Constitution of India. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of fundamental rights, especially the cluster of fundamental rights incorporated under Article 21, which stand flagrantly violated due to the state of affairs of trials under the NDPS Act. We would like to clarify that these directions are restricted only to the proceedings under the NDPS Act. DIRECTIONS A. Adjournments 6. The lavishness with which adjournments ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross- examination of the witness, as the case may be Explanation 1 .- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2 .- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused. [Emphasis supplied] 8. The fourth proviso deserves immediate notification. In lieu of the lacuna created by its conspicuous absence, which is interfering with the fundamental right of speedy trial [See: Hussainara Khatoon and Ors . Vs. Home Secretary, State of Bihar (1980) 1 SCC 81], something this Court is duty- bound to protect and uphold, and till the statutory provisions are in place, we direct that no NDPS court would grant adjournments at the request of a party except where the circumstances are beyond the control of the party. This exception must be treated as an exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 session's 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 concerned courts to adopt the method of session's trials and assign block dates for examination of witnesses. 12. The Narcotics Control Board also pointed out that since operations for prevention of crimes related to narcotic drugs and substances demands coordination of several different agencies viz. Central Bureau of Narcotics ( CBN ), Narcotics Control Bureau ( NCB ), Department of Revenue Intelligence ( DRI ), Department of Custom and Central Excise, State Law Enforcement Agency, State Excise Agency to name a few, procuring attendance of different officers of these ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions in this regard: i) Each state, in consultation with the High Court, particularly the states of Uttar Pradesh, West Bengal and Jammu Kashmir (where the pendency of cases over five years is stated to be high), is directed to establish Special Courts which would deal exclusively with offences under the NDPS Act. ii) The number of these courts must be proportionate to, and sufficient for, handling the volume of pending cases in the State. iii) Till exclusive courts for the purpose of disposing of NDPS cases under the NDPS Act are established, these cases will be prioritized over all other matters; after the setting up of the special courts for NDPS cases, only after the clearance of matters under the NDPS Act will an NDPS court be permitted to take up any other matter. D. Narcotics Labs 15. Narcotics laboratories at the national level identify drugs for abuse and their accompanying substances in suspected samples, determine the purity and the possible origin of illicit drugs, carry out drug-related research, particularly on new sources of drugs liable to abuse, and, when required by the police or courts of law, provide supportive expertise in drug traffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25. Tripura 1 0 26. Uttar Pradesh 1 2 27. Uttarakhand 1 0 28. West Bengal 1 2 UNION TERRITORIES 1. Andaman and Nicobar Islands 1 0 2. Chandigarh 0 0 3. Dadra Nagar Haveli 0 0 4. Daman Diu 0 0 5. Lakshadweep 0 0 6. NCT of Delhi 1 0 7. Puducherry 0 0 TOTAL 28 52 18. A qualitative and quantitative overhaul of these laboratories is necessary for ameliorating the present state of affairs, for which, we are issuing the following directions: i) The Centre must ensure equal access to CFSL's from different parts of the country. The current four CFSL's only cater to the needs of northern and some areas of western and eastern parts of the country. Therefore, besides the three in the pipeline, more CFSL's must be established, especially to cater to the needs of southern and eastern parts of the country. ii) Analogous directions are issued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h permit application of the Customs Act, 1962 and the Drugs and Cosmetics Act, 1940. While re-testing may be an important right of an accused, the haphazard manner in which the right is imported from other legislations without its accompanying restrictions, however, is impermissible. Under the NDPS Act, re-testing and re-sampling is rampant at every stage of the trial contrary to other legislations which define a specific time-frame within which the right may be available. Besides, reverence must also be given to the wisdom of the Legislature when it expressly omits a provision, which otherwise appears as a standard one in other legislations. The Legislature, unlike for the NDPS Act, enacted Section 25(4) of the Drugs and Cosmetics Act, 1940, Section 13(2) of the Prevention of Food Adulteration Act, 1954 and Rule 56 of the Central Excise Rules, 1944, permitting a time period of thirty, ten and twenty days respectively for filing an application for re- testing 24. Hence, it is imperative to define re-testing rights, if at all, as an amalgamation of the above- stated factors. Further, in light of Section 52A of the NDPS Act, which permits swift disposal of some hazardous substances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub- section (2) and certified by the Magistrate, as primary evidence in respect of such offence. 25. Therefore, keeping in mind the array of factors discussed above, we direct that, after the completion of necessary tests by the concerned laboratories, results of the same must be furnished to all parties concerned with the matter. Any requests as to re-testing/re-sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/re-sampling shall be entertained thereafter. However, in the absence of any compelling circumstances, any form of re-testing/re-sampling is strictly prohibited under the NDPS Act. G. Monitoring 26. A monitoring agency is pivotal for the effective management of these recommendations and for the general amelioration of the state of affairs. Therefore, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173; (iv) the confessions and statements, if any, recorded under section 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. For the simplification of the above detailed process, we direct that the filing of the charge- sheet and supply of other documents must also be provided in electronic form. However, this direction must not be t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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