HARI PRASAD CHHAPOLIA Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal was filed challenging the correctness of the judgment of a learned Single Judge of the Orissa High Court. The appellant-Hari Prasad Chhopolia was convicted for offences punishable under Sections 135(b)(1) of the Customs Act, 1962 (in short the Customs Act) and Section 85 (ii, (iii, (viii) and (ix) of the Gold (Control) Act, 1968 (in short the Gold Act) by the trial Court. The High Court by the impugned order set aside the conviction and sentence for the offence punishable under Section 135(b)(1) of the Customs Act while upholding the conviction for the offence punishable under Section 85 of the Gold Act. Leave was granted by this Court by order dated 17-1-2002. The matter was listed for hearing on 7-6-2007 when none appeared for the appellant. The matter was adjourned to 12-6-2007 when it was mentioned that the appellant-Hari Prasad Chhapolia has died. Learned counsel for the appellant wanted to take instructions and, therefore, the matter was directed to be listed after three weeks. The matter was listed on 17-7-2007 when on the prayer made by the learned counsel for the Appellant the matter was adjourned by four weeks. On 29-8-2007 the following order was passed :

(2.) On 25-10-2007 six weeks time was granted to the counsel to file vakalatnama and memo of appearance on behalf of legal heirs of the deceased appellant. It is to be noted that by that time no application for bringing on record the legal heirs of the deceased appellant had been filed. Again on 11-12-2007, at the request of learned counsel who appeared for the deceased appellant, the matter was directed to be listed after one week. On 11-6-2008, on request the matter was directed to be listed today. It appears that an application has been filed on 4-1-2008 for substitution for bringing legal representatives of the appellant on record along with the application for condo nation of delay. The only ground indicated in the application seeking condonation was that the legal heirs of the appellant were not aware that the death of their father has to be intimated to the counsel at Delhi for preparing and filing the application for substitution. The moment they knew about this requirement they contacted their counsel and application has been filed on 4-1-2008.

(3.) Learned Additional Solicitor General appearing for the respondent submitted that there is no scope for accepting the application. Section 394 of the Code of Criminal Procedure, 1973 (in short the Code) has no application to an appeal be fore the Supreme Court. In any event, time statutorily prescribed is 30 days. In the instant case, application has been filed nearly after one year of the death of the appellant-Hari Prasad Chhapolia. Therein also no explanation has been offered as to why the application was filed after such a long time. Accordingly, he submitted that there is no scope for condoning delay beyond the period of 30 days.