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2015 (1) TMI 1029 - HC - CustomsBail Application - Held that - 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. - 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. 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 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. 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 36A(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 years are triable by the Courts of Judicial Magistrates. Section 36D 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 36C 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 Sections 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.
Issues Involved:
1. Bail application under Section 439 of the Criminal Procedure Code, 1973. 2. Procedure for conducting trials of cases registered on the basis of complaints lodged by Customs and Revenue Departments under the NDPS Act, 1985. Detailed Analysis: 1. Bail Application under Section 439 of the Criminal Procedure Code, 1973: The accused sought regular bail in connection with a case pending for over a decade, with the accused in custody for more than five years. The court noted that the delay in trial violated the fundamental right to a speedy trial. The court referenced the Supreme Court's guidelines in the case of Supreme Court Legal Aid Committee v. Union of India, emphasizing the need for a just, fair, and reasonable procedure promoting speedy trials. The court concluded that continued detention would be an abuse of power and a violation of the accused's rights. Consequently, the bail was granted on the grounds of prolonged custody and case pendency, with conditions for the accused to execute a personal bond with two sureties and appear in court on every trial date. 2. Procedure for Conducting Trials of NDPS Cases Instituted Otherwise than on Police Reports: Legal Framework and Provisions: The court examined various provisions of the NDPS Act and the Criminal Procedure Code (CrPC). The NDPS Act's Sections 36, 36A, 36C, and 36D were scrutinized alongside relevant CrPC sections, including Sections 4, 5, 190, 200, 225-237, 238-250, and 244-247. The court emphasized the need for a consistent procedure to ensure speedy trials. Arguments and Precedents: The court considered arguments from the amicus curiae and the Public Prosecutor. The amicus curiae referred to the Supreme Court's judgment in Rajkumar Karawal v. Union of India, asserting that NDPS Act provisions prevail over CrPC in case of inconsistencies. The Public Prosecutor highlighted the procedural inconsistencies in different courts and referenced judgments from Gauhati High Court and Rajasthan High Court supporting direct filing of complaints in Sessions Courts without committal by Magistrates. Court's Observations and Directions: The court noted that different procedures were being followed for trial of NDPS cases, leading to delays. It referred to the Supreme Court's judgment in Thana Singh v. Central Bureau of Narcotics, which emphasized the need for expeditious trials and suggested conducting "sessions trials" with examination and cross-examination of witnesses on consecutive days. Conclusion: The court concluded that for offences under the NDPS Act punishable with imprisonment for more than three years, the procedure laid down in Chapter XVIII of the CrPC should be followed, treating the Special Courts as Courts of Sessions. This approach aims to eliminate procedural delays and ensure speedy trials. The court directed the High Court registry to communicate this judgment to all Sessions Judges under the Gauhati High Court's jurisdiction. Summary: The court granted bail to the accused due to prolonged custody and case pendency, emphasizing the right to a speedy trial. It directed that NDPS cases punishable with imprisonment for more than three years should follow the sessions trial procedure under Chapter XVIII of the CrPC, ensuring a consistent and expedited trial process.
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