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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.