NARCOTICS CONTROL BUREAU Vs. RAKESH DWIVEDI

JUDGEMENT

(1.) The present petition has been filed under Section 482 Cr. P.C, for quashing the order dated 4 th December, 2009 passed by the learned Special Judge, NDPS closing the prosecution evidence. The impugned order reads:

(2.) Learned counsel for the Petitioner contends that the impugned order is bad in law as well on facts. Relying on the documents annexed to the present petition relating to the sending of the summons to the foreign nationals as witnesses from the Indian Government, it is contended that the Petitioner had taken appropriate steps to serve the witnesses. It is further contended that even if the Department does not prosecute and the counsel is negligent in pursing the matter, it is the duty of the Court, in particular with respect to the cases relating to the NDPS Act, to ensure the presence of the witnesses. It is further urged that Section 135, Indian Evidence Act, 1872 puts the entire burden on the Court to procure the attendance of the witnesses where the prosecution fails to do so. Reliance is placed on State of Gujarat vs. Mohanlal Jitamaliji Porwal and another, 1987 AIR(SC) 1321; Mohanlal Shamji Soni vs. UOI and others, 1991 AIR(SC) 1346; Rajendra Prasad vs. Narcotic Cell through its Officer-in-Charge, Delhi, 1999 3 Crimes(SC) 106; Shailender Kumar v. State of Bihar, 2002 1 CCC 35 and Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., 2008 3 JCC 2010 to contend that if there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action and the prosecution cannot be frustrated on this count. Thus, the impugned order be set aside.

(3.) Per contra, the learned counsel for the Respondent submits that the impugned order suffers from no illegality. Right to speedy trial emanates from the fundamental right guaranteed under Article 21 of the Constitution of India. Reliance is placed on J. Joseph vs. Shri A.P. Nandy,1999 2 JCC(Del) 340 and Pankaj Kumar vs. State of Maharashtra and others, 2008 3 JCC 1932. The documents now filed with the petition were not before the learned trial court and are correspondences after the impugned order was passed. On account of repeated defaults made by the prosecution in securing the presence of their witnesses, the impugned order be upheld and the petition be dismissed being devoid of any merit.