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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: CHAMPALAL PUNJAJI SHAH

DATE OF JUDGMENT12/08/1981

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SEN, A.P. (J) ISLAM, BAHARUL (J)

CITATION:  1981 AIR 1675            1982 SCR  (1) 299  1981 SCC  (3) 610        1981 SCALE  (3)1161  CITATOR INFO :  R          1983 SC 361  (2,19)  RF         1983 SC 465  (17)  RF         1985 SC 231  (2)  F          1987 SC 149  (9)  RF         1992 SC1701  (32,36,53)

ACT:      Customs  Act,   section  135-Gold   bars  with  foreign markings discovered  in the  house of  accused-Trial delayed for  many   years  by   action  of  accused-Delay-Whether  a mitigating circumstance in according sentence.      Delayed trial  Whether violative  of fundamental  right under Article 21 of Constitution-Principles to be taken into consideration in considering delayed trials.

HEADNOTE:      Under the present system of criminal justice an accused person resolutely  minded to delay the day of reckoning, may quite conveniently  and comfortably  do so,  if he  can  but afford the  cost involved,  by  journeying  back  and  forth between the  court of first instance and the superior Courts at frequent  interlocutory stages, by filing applications to quash  investigations,   complaints  and   charges  on   all imaginable grounds. Delay is a known defence tactic.      All this  is not  to say  that the  responsibility  for delaying criminal  trials should  always be laid at the door of the  rich and  the reluctant  accused. Delays  caused  by tardiness, indifference  and somnolence  or  the  deliberate inactivity of  prosecuting  agencies  are  not  uncommon  or unknown. As  a result of the delaying tactics of prosecuting agencies an  accused person  may be seriously jeopardised in the conduct  of his  defence. In  such a situation it may be possible to  infer infringement  of the  right to  life  and liberty guaranteed by Article 21 of the Constitution. Denial of a  speedy trial may lead to an inference of prejudice and denial of justice.      Hussainara Khatoon  v. State  of Bihar,  [ 1979]  3 SCR 169, referred to.      In deciding  whether there has been denial of the right to  speedy  trial,  the  court  is  entitled  to  take  into consideration whether  the defendant himself was responsible

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for a  part of  the delay.  whether he was prejudiced in the preparation of  his defence  by  reason  of  the  delay  and whether the  delay was  unintentionally caused  by reason of overcrowding of  the Court’s  docket or  under  staffing  of prosecutors and  so forth.  Though in  India  the  right  of speedy trial  is not  an expressly guaranteed constitutional right it  is implicit  in the right to fair trial which is a part of  the right to life and liberty guaranteed by Article of the  Constitution. While  a speedy  trial is  an  implied ingredient of  a fair  trial the converse is not necessarily true. A delayed trial is not necessarily an unfair trial.      The question  whether conviction  should be  quashed on grounds  of   delayed  trial  depends  upon  the  facts  and circumstances of a case. If it is shown to the 300 satisfaction  of   the  Court  that  the  accused  had  been prejudiced in  the conduct  of his defence and thus had been denied adequate opportunity to defend himself the conviction would have to be set aside. There would, on the contrary, be no justification  to quash  a conviction  on the  ground  of delayed  trial   unless  it   is  shown   that   there   are circumstances entitling  the court  to raise  a  presumption that the accused had been prejudiced. [304 B-C]      In the  instant case in a surprise raid on the house of the respondent,  Central Excise  officers discovered a large quantity of gold bars with foreign markings concealed in the false bottom  of a  steel almirah,  the keys  of which  were found with him.      On a charge for offences under section 120B I.P.C. read with section  135 Customs  Act and rule 126P(2)(ii) and (iv) of the  Defence of  India Rules  1962, the  Additional Chief Presidency Magistrate convicted the respondent and variously sentenced him  under different  counts with imprisonment and fine. On appeal the High Court acquitted him. ^      HELD: Although  it is  settled law  that circumstantial evidence must  be of  a conclusive  nature and circumstances must not  be capable of a duality of explanations, the Court is not  bound  to  accept  any  exaggerated,  capricious  or ridiculous explanation  which may suggest itself to a highly imaginative mind. The three circumstances established in the instant case  were: (1)  presence of  the respondent  in the flat at  the time of the raid by Central Excise officers and recovery of  gold slabs with foreign markings from the steel almirah: (2)  recovery from  his person  of a bunch of eight keys which fitted the almirah and (3) recovery of a bunch of three keys  from his  person, one  of which  fitted the lock hanging from  the inside handle of the door of the flat. The explanation fancied by the High Court that the steel almirah in the  flat was  not shown  to have been specially made and that the  keys of  a similar  almirah could  well fit it and that perhaps  was how the keys recovered from the respondent did fit  the almirah  in the flat, was a wholly unreasonable explanation in  the circumstances  of the case. This was not the plea  of the  respondent,  nor  did  he  make  any  such suggestion to the prosecution witnesses. [306 FG & CD]      Notwithstanding the  fact that  the case  is  based  on circumstantial  evidence  and  this  is  an  appeal  against acquittal and  that this  Court is  exercising extraordinary but  exceptional  jurisdiction  under  Article  136  of  the Constitution, interference  with the  judgment of  the  High Court in  the instant  case is  imperative hesitation  to do which would lead to miscarriage of justice. [307 C]      The respondent  being himself  responsible for  a  fair part of  the  delay,  could  not  complain  that  there  was

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violation of  his fundamental  right  to  life  and  liberty guaranteed under  Article 21;  nor has  he shown  how he was prejudiced in  the conduct  of his  defence by reason of the delay. [307 E]      Nor again would the fact that there was a long lapse of time since  the  commission  of  the  offence  or  that  the respondent was  preventively detained  for over two years be of any  avail to  him because  the  offence  was  one  which jeopardised the  country s economy. It is impossible to take a casual or light view of 301 such an  offence. It  is only  where the  offence  is  of  a trivial nature  as for example, a simple assault or theft of a trilling  amount that the Court might hesitate to send the accused back  to jail  after a  long lapse  of time; but the nature of  the offence  and the stakes involved in this case do not  merit any  sympathy being  shown to  the respondent. [307 G-H]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 126 of 1975.      Appeal by  special leave  from the  judgment and  order dated the  19th/20th February, 1974 of the Bombay High Court in Criminal Appeal No. 1549 of 1971.      O. P. Rana and R. N. Poddar for the Appellant.      Ram  Jethmalani   and  Miss  Rani  Jethmalani  for  the Respondent.      The Judgment of the Court was delivered by      CHINNAPPA  REDDY,   J.  It   is  one  of  the  sad  and distressing features  of our criminal justice system that an accused person,  resolutely  minded  to  delay  the  day  of reckoning, may  quite conveniently and comfortably do so, if he can  but afford the cost involved, by journeying back and forth, between  the Court of first instance and the superior Courts,  at   frequent  interlocutory  stages.  Applications abound to  quash investigations,  complaints and  charges on all imaginable grounds, depending on the ingenuity of client and counsel.  Not infrequently,  as soon  as a  court  takes cognizance of  a  case  requiring  sanction  or  consent  to prosecute,  the   sanction  or   consent  is  questioned  as improperly accorded,  so soon  as a witness is examined or a document produced,  the evidence  is challenged as illegally received and many of them are taken up to the High Court and some of  them reach  this Court  too on  the theory that ’it goes to  the root of the matter’. There are always petitions alleging ’assuming  the entire  prosecution case to be true, no offence  is made  out’. And,  inevitably proceedings  are stayed and  trials delayed. Delay is a known defence tactic. With the  passage of  time, witnesses  cease to be available and memories  cease to  be fresh.  Vanishing  witnesses  and fading memories render the onus on the prosecution even more burdensome and make a welter weight task a heavy weight one. Sure, we  do not mean to suggest that the responsibility for delaying criminal trials is always to be laid at the door of the rich  and the reluctant accused. We are not unmindful of the delays  caused by  the  tardiness  and  tactics  of  the prosecuting 302 agencies. We  know of  trials which are over delayed because of  the   indifference  and  somnolence  or  the  deliberate inactivity of the prosecuting agencies. Poverty-struck, dumb accused persons,  too feeble to protest, languish in prisons

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for months  and year  on end  awaiting trial  because of the insensibility  of   the  prosecuting   agencies.  The  first Hussainara  case   (Hussainara  Khatoon   &  Ors.   v.  Home Secretary, State of Bihar, Govt. Of Bihar, Patna)(1) was one like  that.  Sometimes  when  the  evidence  is  of  a  weak character and  a conviction  is not  a probable  result, the prosecuting agencies  adopt delaying  tactics  to  keep  the accused persons  in incarceration as long as possible and to harass them.  This is a well known tactic in most conspiracy cases. Again, an accused person may be seriously jeopardised in the  conduct of  his defence  with the  passage of  time. Witnesses for  the defence  may become unavailable and their memories too  may fade  like those  of the witnesses for the prosecution. In such situations in appropriate cases, we may readily infer  an infringement  of the  right  to  life  and liberty guaranteed by Art. 21 of the Constitution. Denial of a speedy  trial may  with or without proof of something more lead to  an inevitable  inference of prejudice and denial of justice. It  is prejudice  to a  man to  be detained without trial. It  is prejudiced to a man to be denied a fair trial. A fair  trial implies  a speedy trial. In Hussainara Khatoon v. State of’ Bihar(1), this Court said (at p. 179).           "Speedy  trial  is  of  the  essence  of  criminal      justice and  there can  be no doubt that delay in trial      by  itself   constitutes  denial   of  justice.  It  is      interesting to  note that  in the United States, speedy      trial is one of the constitutionally guaranteed rights.      The Sixth Amendment to the Constitution provides that"                ’In all  criminal prosecutions,  the  accused           shall enjoy  the right  to  a  speedy  and  public           trial’.  So   also  Article   3  of  the  European           Convention on Human Rights provides that:                ’every  one  arrested  or  detained-shall  be           entitled to  trial within  a reasonable time or to           release pending trial’.      We think  that  even  under  our  Constitution,  though      speedy  trial  is  not  specifically  enumerated  as  a      fundamental right, 303      it is  implicit in  the  broad  sweep  and  content  of      Article 21  as R  interpreted by  this Court  in Maneka      Gandhi v.  Union of India(1). We have held in that case      that Article  21 confers  a fundamental  right on every      person not to be deprived of his life or liberty except      in accordance  with the procedure prescribed by law and      it is  not enough  to constitute  compliance  with  the      requirement of  that Article  that some  semblance of a      procedure should  be prescribed  by law,  but that  the      procedure should  be ’reasonable,  fair and just’. If a      person is  deprived of  his liberty  under a  procedure      which  is   not  ’reasonable,   fair  and  just’,  such      deprivation would be violative of his fundamental right      under Article  21 and  he would  be entitled to enforce      such fundamental  right and  secure  his  release.  Now      obviously procedure  prescribed by  law for depriving a      person of  his liberty  cannot be  ’reasonable, fair or      just’ unless  that procedure ensures a speedy trial for      determination of the guilt of such person. No procedure      which does  not ensure a reasonable, quick trial can be      regarded as  ’reasonable, fair  or just’  and it  would      fall foul  of Article  21. There  can, therefore, be no      doubt that  speedy trial  and by  speedy trial  we mean      reasonably  expeditious   trial,  is  an  integral  and      essential part  of the  fundamental right  to life  and      liberty enshrined in Article 21".

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    What is  the remedy  if a  trial is unduly delayed ? In the United  States, where  the right  to a speedy trial is a constitutionally guaranteed  right, the  denial of  a speedy trial has  been held  to entitle  an accused  person to  the dismissal of the indictment or the vacation of the sentence. But in deciding the question whether there has been a denial of the  right to  a speedy  trial, the  Court is entitled to take into  consideration whether  the defendant  himself was responsible for  a part  of the  delay and  whether  he  was prejudiced in  the preparation  of his  defence by reason of the  delay.   The  Court  is  also  entitled  to  take  into consideration whether the delay was unintentional, caused by over-crowding of the Court’s docket or under-staffing of the Prosecutors. Strunk  v. United  States(2) is  an instructive case on  this point.  As pointed out in the first Hussainara case, (supra)  the  right  to  a  speedy  trial  is  not  an expressly guaranteed  constitutional right  in India  but is implicit in the right 304 to a  fair trial which has been held to be part of the right to  life   and  liberty   guaranteed  by   Art.  21  of  the Constitution. While  a speedy trial is an implied ingredient of a  fair trial,  the converse  is not  necessarily true. A delayed trial  is not necessarily an unfair trial. The delay may be  occasioned by  the tactic  or conduct of the accused himself. The  delay may  have caused no prejudice whatsoever to the  accused. The question whether a conviction should be quashed on  the ground  of delayed  trial depends  upon  the facts and circumstances of the case. If the accused is found to have been prejudiced in the conduct of his defence and it could be  said that  the accused  had thus  been  denied  an adequate opportunity to defend himself, the conviction would certainly have  to go. But if nothing is shown and there are no circumstances  entitling the Court to raise a presumption that the  accused had  been  prejudiced  there  will  be  no justification to  quash the  conviction  on  the  ground  of delayed trial only.      In the  present case,  in the beginning, three persons, Champalal Punjaji  Shah, Poonam  Chand and  Mohan  Lal  were charged  by   the  learned   Additional   Chief   Presidency Magistrate 8th Court, Esplanade, Bombay, with offences under S. 120B  of the  Indian Penal  Code read  with  135  of  the Customs Act  and rule  126P (2) (ii) and (iv) of the Defence of India  Rules, 1962, 135(a) and (b) and (i) of the Customs Act and  rule 126P  (2) (ii)  and rule  126P (2) (iv) of the Defence of  India Rules. After some evidence had been led by the prosecution,  the Public Prosecutor filed an application before  the  learned  Magistrate  requesting  permission  to withdraw from  the prosecution against accused no. 2, Poonam Chand. Permission  was granted  and thereafter  Poonam Chand was examined by the prosecution as their witness. After some vicissitudes,  necessitated   by  the  respondent  Champalal Punjaji Shah  taking the  matter to  the higher  courts, the trial finally concluded and by a judgment dated December 13, 1971 the learned Magistrate acquitted Mohan Lal, accused no. 3 but  convicted accused no. 1, Champalal Punjaji Shah under various heads  of the  charge and  sentenced him  to  suffer imprisonment for  various terms  ranging from  two years  to four years  and to the payment of fine of Rs. 10,000 on each of   different   counts.   The   substantive   sentence   of imprisonment were  directed to  run concurrently. On appeal, the respondent was acquitted by the High Court. The State of Maharashtra  has   filed  the  present  appeal  against  the judgment of the High Court of Bombay after obtaining special leave from this Court under Art. 136 of the Constitution.

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    The brief  facts of  the case may now be stated. On May 30,   1965,   on   information   received,   P.W.   4,   the Superintendent of 305 Central Excise,  and P.W.  1, the  Deputy Superintendent  of Central Excise, accompanied by other Central Excise officers and two panchas, Savalram Ganpat Bhagat (P.W. 7) and another went to  fiat no.  14 on the first floor of a building known as Vidya  Vihar on  Tulsi Pipe Road, Dadar, Bombay. The flat had two  doors, one away from the staircase, locked from the outside and  another near  the  staircase  and  closed  from inside. P.W.  1 pressed  the calling  bell and  the door was opened by Poonam Chand. Another person was sitting on a sofa inside the room. He was accused no. 1. On seeing the Central Excise officers  accused no. 1 got up and went towards them. PW 1  told the  accused that he was authorised to search the room and showed them the authorisation given to him by PW 4. The room  was then  searched. The  rear side of the entrance door had  a handle  from which  was hanging  a ’Tiger’ brass lock. Besides the sofa there was a steel almirah. PW 1 asked accused no.  1 to  open the  almirah. Accused  no. 2  Poonam Chand then  took out  a bunch of keys from the pocket of his trousers and opened the almirah. There were eight drawers in the steel  almirah. These  drawers contained some documents. It was  noticed  that  the  two  bottom  drawers  had  false bottoms.  When   the  false  bottoms  were  pulled  out  and searched, they  were found  to contain 11 jackets in each of which there  were 100  slabs of gold weighing 10 tolas each. The total quantity of gold found secreted in the almirah was 11,000 tolas. The gold slabs had foreign markings on them. A key was also found in that almirah and this key was found to fit the ’Tiger’ lock which was hanging from the inner handle of the  front door  of the  flat. Thereafter accused no. 1’s person was  searched and  some documents  and two bunches of keys, one  containing eight  keys and  the other  containing three keys  were found. The bunch of eight keys was found to fit the  steel almirah  from which  the slabs  of gold  were recovered. Two  of the  three keys  of the  other bunch were obviously keys of a scooter while the third key was found to fit the  ’Tiger’ lock which was on the handle of the back of the front  door of  the flat.  Thereafter  a  panchnama  was prepared. During  the course  of the  investigation  it  was found that  . the  flat was  taken on  a ’leave and licence’ basis  by   accused  no.  3.  After  the  investigation  was completed a  complaint was  filed for  the various  offences mentioned by us at the outset.      The case  of the respondent was that he had purchased a scooter from Mohan Lal and had gone to the flat of Mohan Lal that night  for completing  some negotiations.  When he  was coming from  the building he was dragged into flat no. 14 by the Customs 306 officers. He had nothing to do with the flat nor did he have anything to do with the gold found in the flat. The bunch of eight keys  was not  found on  his person  as alleged by the prosecution. The  bunch of  three keys was on his person but two out  of the  three keys were of the scooter purchase  by him from accused no. 3. Shri Jethmalani, learned counsel for the respondent  initially challenged  the reception  of  the evidence of  Poonam Chand  into the record but desisted from doing so  when we  told him that he might confine himself to the rest  of  the  evidence  which  appeared  to  us  to  be sufficient to hold the respondent guilty of the offence with which he  was charged.  The three  outstanding circumstances established against  the respondent  and not disputed before

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us by  the learned  counsel for  the respondent were (1) the presence of  the respondent  in the  flat at the time of the raid by  the Central Excise officers and the recovery of the gold slabs  of foreign origin from the steel almirah and (2) the recovery  of the  bunch of  eight keys  from his  person which keys fitted the almirah from which the gold slabs were recovered and (3) the recovery of a bunch of three keys from his person  one of  which fitted  the lock which was hanging from the inside handle of the door of the flat. To any mind, unassailed by  "some light,  airy, unsubstantial  doubt that may flit  through the  minds  of  any  of  us  about  almost anything at sometime or other(’)" these circumstances should be sufficient  to draw an inference of guilt. The High Court however thought  that the  steel almirah in the flat was not shown to  have been  specially   made and that the keys of a similar almirah  could well  fit it and that was perhaps how the keys  recovered from  the accused did fit the almirah in the flat. That of course was not the plea of the accused nor was it  a suggestion  made to  the prosecution witnesses. We agree with  the submission that circumstantial evidence must be of  a conclusive  nature and  circumstances must  not  be capable of  a duality  of explanations.  It does not however mean that  the Court  is bound  to accept  any  exaggerated, capricious  or  ridiculous  explanation  which  may  suggest itself to  a highly imaginative mind. It is well to remember that the  Evidence Act  considers a  fact as  "proved" when, after considering  the matters  before it,  the Court either believes it to exist, or considers its existence so probable that a  prudent mind  ought under  the circumstances  of the particular case, to act upon the supposition that it exists. It is also 307 worthy of remembrance that a Court may presume the existence of A  any fact  which it  thinks likely  to  have  happened, regard being  had to  the common  course of  natural events, human conduct  and public  and  private  business  in  their relation to  the  facts  of  the  particular  case.  We  are unhesitatingly of  the view  that the explanation fancied by the High  Court was a wholly unreasonable explanation in the circumstances of the case. Shri Jethmalani reminded us first that we  were considering circumstantial evidence, second we were dealing  with an  appeal against acquittal and third we were   exercising    our   extraordinary   but   exceptional jurisdiction under  Art. 136. Indebted as we are to him, for his   forceful   presentation   of   the   reasons   against interference with  the judgment  of the High Court, we think that, interference in this case is imperative and hesitation to interfere will lead to a miscarriage of justice.      Shri Jethmalani  also  urged  that  the  trial  of  the respondent was  considerably delayed,  that there was thus a violation of  the fundamental  right  to  life  and  liberty guaranteed under  Art. 21 of the Constitution and that was a sufficient ground  to entitle  the accused to a dismissal of the complaint  against him.  We have  earlier discussed  the relevant  principles   which  should   guide  us   in   such situations. In this case the accused himself was responsible for a  fair part  of the delay. He has also not been able to show cause  how he  was prejudiced  in the  conduct  of  his defence  by  reason  of  the  delay,  Shri  Jethmalani  then suggested that  the long  lapse of time since the commission of the  offence should  be taken  into account  by us and we should refuse to interfere with the order of acquittal or at any rate  we should  not send  the accused  back  to  prison particularly in  view of  the  fact  that  the  accused  was preventively detained for over two and nearly three years on

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the basis  of the very acts complained of in this particular case. We  are afraid  we  are  unable  to  agree  with  Shri Jethmalani. The offence is one which jeopardises the economy of the  country and  it is  impossible to take a casual or a light view of the offence. It is true that where the offence is of a trivial nature such as a simple assault or the theft of a  trifling amount,  we may  hesitate to  send an accused person back  to jail  as it  would  not  be  in  the  public interest or  in the  interest of  anyone to  do so.  But the offences with which we are concerned and the stakes involved clearly show  that sympathy in this case would be misplaced. We therefore,  set aside  the judgment of the High Court and restore that  of the  learned  Additional  Chief  Presidency Magis- 308 trate, 8th  Court, Esplanade,  Bombay. The  respondent  will surrender forthwith.  The gold  slabs will stand confiscated to the Central Government. The appeal is allowed. P.B.R.                                       Appeal allowed. 309