ABDUL LATIF Vs. NARCOTIC CONTROL BUREAU EZU

JUDGEMENT

(1.) This Revisional application under Section 482 Cr.P.C. has been directed against the judgment and order dated 16th November, 1994 passed by the ld. Additional District & Sessions Judge-cum-Judge, Special Court, Murshidabad in NDPS Case Nos. 6/90 under Section 29 read with Section 21 of the NDPS Act 1985 By this order the ld. Judge rejected an application of the petitioners under Section 245(3) Cr.P.C. whereunder they made a prayer for quashing of the proceedings of the said case on the ground that the prosecution had failed to complete adducing of evidence within the statutory period of four years from the date on which the accused persons were arrested. The ld. Judge has rejected the application of the petitioners under Section 245(3) Cr.P.C. on the ground that there had been no default on the part of the complainant and that discharge of the accused persons under this Section is not to be taken as automatic, but it is left to the discretion of the Court to be exercised judiciously. It has been found by the ld. Judge that there was justifying reasons for the evidence of the prosecution having not been completely adduced within the period of four years as prescribed under the law and in view thereof the Hon'ble Supreme Court's decision in Santosh De's case reported in 1994 C.Cr.L.R. (SC) 87 would not be applicable to the, facts of the present case and it would not be in the interest of justice to discharge the accused under Section 245(3) Cr.P.C. simply on the ground that the prosecution had failed to adduce its evidence in full within a period of four years on the date of the appearance of the accused.

(2.) The accused persons being the present petitioners have challenged the order of the Court below on the grounds as follows. The decision reported in 1994 C.Cr.L.R. (SC) 87 (Santosh De v. The State of W.B.) is totally inapplicable to the present case in view of the fact that in this case under reference there was some evidence before the Court and thus the evidence on record left the Court with the discretion to discharge or not to discharge the accused on an appreciation of the material evidence on record. But in the present case there having been no evidence at all, there is no such scope for the Court to exercise any discretion either this way or that way, but it has got to face a situation where there is no alternative than to discharge the accused under sub-section 3 of Section 245 of the Code. Secondly the provisions of Section 245(3) are relating to the jurisdiction of the Court and it imposes some restriction on the authority of the prosecutor in the matter of adducing evidence. Under these provisions, in the event the prosecutor failed to adduce evidence before the framing of charge within a fixed time limit, viz. a period of four years from the date of appearance of the accused before the Court and to satisfy the Court as to why the accused should not be discharged, then unless the Court extends such statutory period, it is bound under the mandate of the said Section to discharge the accused. Thirdly, in a case where there is more than one accused, each one of them is entitled to the benefit of the provisions of this Section of the Code if the requirements thereof are satisfied, Non-appearance of one of the accused or even the abscondence of one of them cannot be a ground to deprive the other accused of getting the benefit of these provisions on the failure on the part of the prosecutor to procure the appearance or production of the witnesses in the Court in time and consequently failing to adduce evidence due to such delayed production or appearance of some other accused cannot be used as a ground to avoid the application of this Section 245(3) of the Cr.P.C and the prosecution cannot take the plea that the absence of one of the accused prevented the Court from proceeding with the hearing of the case in time or deterred the prosecutor from adducing evidence, inasmuch as, the prosecution has ample scope to adduce evidence against an absconding accused. Because, according to the revision petitioner the whole object of this law is to prevent unnecessary harassment and hardship to an accused person and the standpoint from which the Court below has interpreted the provisions of this law is opposed to the principle which underlies the same. According to the appellants, the impugned order of the ld. Trial Judge having suffered from such inherent infirmities is liable to be set aside and the impugned proceedings of NDPS Case No. 6/90 pending before Court below as far as the petitioners are concerned are liable to be quashed.

(3.) On perusal of the impugned judgment it appears that the ld. Trial Judge has relied upon the principle enunciated in a decision of the Apex Court (Santosh De and Anr. v. Archana Guha and Ors.) wherein it has been held that discharge of an accused under Section 245(3) of the Code is not automatic and if the Magistrate is satisfied that it will not be in the interest of justice to do so, he will not discharge the accused. The Court below has expressed the view that in a warrant procedure case like the present one the appearance of all the accused persons must be obtained first and when all of them have appeared before the Court or the process for procuring their attendance has been exhausted, the case can be said to be ripe for the purpose of adducing of evidence by the prosecution. In his order ld. trial Judge has shown how since after the inception of this complaint case the Court of the Chief Judicial Magistrate had to wait for long three and half years (the complaint was filed on 26th September, 1989 and the same was sent to the Court of Special Judge on 19-1-1993) for procuring the appearance of all the four accused persons together and finally having failed in that behalf sent the case to the Court of Addl. Sessions Judge for trial after filing it as against one of the accused, viz., Ram-pal Gupta who was absconding. Thus up to 19-1-1993, as the order-sheet shows, the case could not be made ripe for being transferred to the Court of trial, everyday this or that accused having been absent whereas since after it was transferred to such a Court till the date on which the petition under Section 245(3) in question was filed, the Court was prevented from commencing its trial due to either this or that reason which appear to be beyond the control of the Court. Thus, as has been spelt out in the impugned order, after the receipt of record by it the Court experienced difficulty in securing production of the accused, Md. Azad, from the jail and the Court had to take up the matter with the prison authorities for securing his production. After that a number of adjournments had to be allowed due to absence of the accused, Abdul Latif and Amjad. Thereafter, petition for cancellation of bail of the accused, Azad, was filed by the prosecuting agency and it had to be heard and the bail of this accused had to be cancelled by passing an order. Then, the matter was taken to this High Court by the accused by filing a Revision Application being No. 1264/93 in which this High Court called for the records of this case and stayed the further proceedings thereof till the 2nd September, 1994 when this Court passed an order directing the Court below to proceed with the trial within two months, but that could not be done due to the Puja vacation intervening. On the next four dates fixed i.e. on 6-9-1994,14-9-1994,22-9-1994 and 28-9-1994 the accused Abdul Latif and Amjad Sk. were absent. On the next date i.e. on 9-11-1994 these two accused were present and filed the petition under Section 245(3) Cr.P.C. in question but the third accused, Azad, was not produced by the jail authority. Thereafter on the next date, i.e., 16-11-1994 order on the said petition under Section 245(3) Cr.P.C. was passed by the Court below.