TMI Blog2015 (1) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... d not on any other ground. Trial procedure of NDPS cases instituted by way of complainants, otherwise than on police reports - 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 - held that:- 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 53A 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel as Amicus Curiae, Smt. S.K. Nargis, A. Neog, Advocates, for the Petitioner. Shri Z. Kamar, K. Munir, Public Prosecutors, D. Chakraborthy, Standing Counsel for DRI, for the Respondent. JUDGMENT 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 . 2. 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. 208(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 inquis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or more shall be released on bail unless (i) the Public Prosecutor has had an opportunity to oppose bait 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 Punjab. Despite this provision, we have directed as above mainly at the call of Article 21 as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 50,000 with two sureties for tike 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 furnishes bail in the sum of Rupees one lakh with two sureties for like amount . 6. I have alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofar 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 lime being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5. 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, spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 he 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 he produced in support of the prosecution. (2) The Judge may, in this discretion, permit the cross-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to he 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 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 he 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 otherwise than on a police report the accused appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. 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 36A(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 subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cope 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 v. State of Rajasthan, (2012 Cri LJ 1480). In this case also His Lordship has held that the complaints by DRI and Customs department can be directly tiled 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 v. 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 procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Amratlul Devdanbhai Soni v. 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 constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Union of India, reported in (1996) 4 SCC 33 = (1996) 6 SCC 775 and Raj Deo Sarma v. State of Bihar, reported in (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ati 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 v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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