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CASE NO.: Miscellaneous Petition(crl.) 862  of  2001 Special Leave Petition (crl.)   223      of  2000

PETITIONER: BIPIN SHANTILAL PANCHAL

       Vs.

RESPONDENT: STATE OF GUJARAT AND ANR.

DATE OF JUDGMENT:       22/02/2001

BENCH: K.T. Thomas, R.P. Sethi & B.N. Agarwal.

JUDGMENT:

L...I...T.......T.......T.......T.......T.......T.......T..JJ U D G M E N T

   THOMAS, J.

   This  is  yet  another opportunity to inform  the  trial courts  that despite the procedural trammels and  vocational constraints  we have reached a stage when no effort shall be spared to speed up trials in the criminal courts.  It causes anguish to us that in spite of the exhortations made by this Court  and  a few High Courts, time and again, some  of  the trial  courts  exhibit stark insensitivity to the  need  for swift   action,  even  in  cases   where  the  accused   are languishing  in prisons for long years as under-trials  only on account of the slackness, if not inertia, in accelerating the process during trial stage.

   We shall narrate, in a brief manner, as to what happened thus  far in the present case though this seems to be one of the  rare  cases in which an under-trial prisoner  has  been facing  a record time for reaching culmination of the  trial proceedings.

   The  genesis  of  the proceedings is interception  of  a consignment  at  the Air Warehouse, Mumbai, which was  meant for  export  to Nairobi.  The consignment, when opened,  was found  containing  a very huge quantity of  Mandrex  tablets (Methaqualone).   Respondent  (Dr.  Bipin S.   Panchal)  was arrested  on  8.11.1993  in connection  with  the  aforesaid seizure  of  narcotic or psychotropic substance.  It led  to the unearthing of a further huge quantity of Mandrex tablets which, added with the earlier interception, is quantified at about  2000  Kgs.  The Directorate of Revenue  Intelligence, Ahmedabad   filed  a  complaint   against  certain   persons including respondent Bipin S.  Panchal, for various offences under  the Narcotic Drugs and Psychotropic Substances (NDPS) Act.   The  said  case is being tried before  the  court  of Additional City Sessions Judge, Ahmedabad.

   Respondent  was detained in prison as he was not  bailed out  during  the trial proceedings despite repeated  motions made  by him.  Once in 1994, when respondent approached  for

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bail,  this  Court directed the trial court to expedite  the trial.   Though  the evidence taking started on 4.9.96,  the case is still lingering on as the trial persisted thereafter for  years.  This is in spite of the permission accorded  to the  trial  court  for holding proceedings inside  the  jail where some of the accused are being interned, as per Section 268 of the Code of Criminal Procedure.

   For  so  many reasons the trial court could not  proceed fast,   for  which  the   respondent  has  also  contributed substantially.   From the records available with us we  have perceived  that  the  respondent  moved the  High  Court  of Gujarat for bail on the ground that the court is not closing the  trial despite the direction for speeding up the  steps. However,  the High Court dismissed the application for  bail as  per  a detailed order passed on 29.10.1999.  That  order was  challenged  by  the  respondent before  this  Court  by seeking special leave to appeal.

   The  said  special  leave petition was  disposed  of  on 31.3.2000  with the following order:  As the Special  Judge who is trying the case has reported to us that he reasonably expects  to close the trial within six months, we dispose of this  special  leave petition permitting the  petitioner  to move  for bail again in case the trial is not closed  within six months.

   Even  the aforesaid period of six months is over by now, but  the culmination of trial is still a far cry.  It was in the above background that the present application is made by the   Directorate  of  Revenue   Intelligence  praying   for modification  of the order dated 31.3.2000 by extending the period  for closing of the trial for a further period of six months.

   We  notice that the immediate impact of the order  dated 31.3.2000  was  a positive response as five  witnesses  were examined on 3.4.2000 itself.  But as the Additional Sessions Judge  (Shri A.R.  Bhatt) expected his retirement two months hence,  he  chose to remain in limbo in regard to this  case and  hence  no  progress was made until 10.7.2000  when  his successor  (Shri  B.N.   Jain)  took  up  the  matter.   The successor  Judge  appears  to have determined to  close  the trial  within  the  time frame.  He, therefore,  decided  to follow  the legislative mandate contained in Section 309  of the  Code  and ordered day-to-day trial for which he made  a schedule also.

   But  the  initial alacrity shown by the trial judge  did not  last long as the swiftness of the trial was bridled  on account of trumpery reasons.  The defence counsel questioned the admissibility of certain documents and raised objections with  regard to the same.  Though the trial court disallowed the  objections  as  per  an   order  passed  on   24.7.2000 (presumably  after  hearing both sides at length) the  trial judge  adopted a very unwholesome procedure by stopping  the trial  for  a lengthy period, just to enable the defence  to take  up that order before the High Court.  Even though  the prosecution  brought  witnesses to be examined on  8.8.2000, the  trial judge hesitated to examine them, and extended the stay  granted  by  himself and did not choose  to  take  the evidence  of those witnesses on the said date.  However, the defence  failed  to challenge the said order and  hence  the trial proceedings were resuscitated on 16.8.2000.

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   On  that  day  the   defence  raised  another  objection regarding  admissibility  of  another document.   The  trial judge  heard  elaborate  arguments thereon  and  upheld  the objection  and consequently refused to admit that particular document.   What  the prosecution did at that stage  was  to proceed  to the High Court against the said order and in the wake  of that proceeding respondent filed an application  on 9.11.2000,  for enlarging him on bail on the strength of the order passed by this Court on 31.3.2000 (extracted above).

   We are compelled to say that the trial judge should have shown   more  sensitivity  by   adopting  all  measures   to accelerate  the trial procedure in order to reach its finish within  the time frame indicated by this Court in the  order dated  31.3.2000  since  he knew very well  that  under  his orders  an  accused is continuing in jail as an  under-trial for  a record period of more than seven years.  Now, we feel that  the Additional Judge, whether the present incumbent or his  predecessor,  was  not serious in  complying  with  the directions  issued by this Court, though the parties in  the case have also contributed their share in bypassing the said direction.

   As pointed out earlier, on different occasions the trial judge  has  chosen to decide questions of  admissibility  of documents or other items of evidence, as and when objections thereto  were  raised and then detailed orders  were  passed either  upholding or overruling such objections.  The  worse part is that after passing the orders the trial court waited for  days  and weeks for the concerned parties to go  before the  higher  courts  for  the purpose  of  challenging  such interlocutory orders.

   It  is  an  archaic practice that  during  the  evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed  further  without passing order on  such  objection. But the fall out of the above practice is this:  Suppose the trial  court, in a case, upholds a particular objection  and excludes  the  material from being admitted in evidence  and then  proceeds  with  the  trial and disposes  of  the  case finally.   If  the appellate or revisional court,  when  the same  question is re-canvassed, could take a different  view on  the  admissibility  of that material in such  cases  the appellate  court  would be deprived of the benefit  of  that evidence,  because  that was not put on record by the  trial court.   In  such a situation the higher court may  have  to send  the  case back to the trial court for  recording  that evidence and then to dispose of the case afresh.  Why should the  trial  prolong  like that unnecessarily on  account  of practices  created  by  ourselves.    Such  practices,  when realised  through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must  be  recast  or  re-moulded  to  give  way  for  better substitutes   which  would  help   acceleration   of   trial proceedings.

   When  so  recast,  the practice which can  be  a  better substitute  is this:  Whenever an objection is raised during evidence  taking  stage regarding the admissibility  of  any material or item of oral evidence the trial court can make a note  of  such  objection  and mark  the  objected  document tentatively  as  an  exhibit  in the  case  (or  record  the objected  part  of  the  oral   evidence)  subject  to  such

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objections  to  be  decided at the last stage in  the  final judgment.   If  the court finds at the final stage that  the objection  so raised is sustainable the judge or  magistrate can  keep such evidence excluded from consideration.  In our view  there  is  no illegality in adopting  such  a  course. (However,  we make it clear that if the objection relates to deficiency  of  stamp  duty of a document the court  has  to decide  the  objection before proceeding further.   For  all other  objections  the  procedure  suggested  above  can  be followed.)

   The   above  procedure,  if   followed,  will  have  two advantages.   First  is  that the time in the  trial  court, during evidence taking stage, would not be wasted on account of  raising  such objections and the court can  continue  to examine the witnesses.  The witnesses need not wait for long hours, if not days.  Second is that the superior court, when the  same  objection  is re-canvassed  and  reconsidered  in appeal  or revision against the final judgment of the  trial court,  can  determine the correctness of the view taken  by the  trial court regarding that objection, without bothering to  remit  the  case  to the trial  court  again  for  fresh disposal.  We may also point out that this measure would not cause  any  prejudice to the parties to the  litigation  and would not add to their misery or expenses.

   We,  therefore,  make  the above as a  procedure  to  be followed by the trial courts whenever an objection is raised regarding  the admissibility of any material or any item  of oral evidence.

   Now,  for  disposal  of the present application  we  may state that there is no point in our granting further time to the  trial court to complete the trial.  It is for the trial court to complete it as early as possible.  But we would not do  anything to deprive the accused in custody of his  right to  move  for  bail  on  account   of  the  delay  thus  far occasioned.   The  bail application would be disposed of  by the  court  concerned  on its own merits.   With  the  above observations we dispose of this application.

[ K.T. Thomas ]

[ R.P.Sethi ]

[ B.N. Agarwal ]

February 22, 2001.