IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 6523 of 2000 with CRIMINAL MISC.APPLICATION No 1722 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- BIPIN SHANTILAL PANCHAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Misc.Application No. 6523 of 2000 MR AD SHAH for Petitioner MR ND GOHIL, APP for Respondent No. 1 MR DN PATEL for Respondent No. 2 2. Criminal Misc.ApplicationNo 1722 of 2001 MR BB NAIK for Petitioner MR ND GOHIL, APP for Respondent No. 1 MR DN PATEL, for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.BUCH Date of decision: 01/05/2001 CAV COMMON JUDGEMENT 1. Rule. Service of Rule is waived by ld. APP Mr. N.D.Gohil for Respondent No.1 State and ld. Spl.P.P. Mr. D.N. Patel for Respondent No.2 Director of Revenue Intelligence (DRI for short) in both these applications. 2. Both these Cri. Misc. Applications are preferred under sec. 439 of CrPC praying bail by the petitioners-accused of Sessions Case No. 162/94 pending in the Court of ld. Additional City Sessions Judge, Ahmedabad. Since in both the applications similar points are involved, they are heard and disposed of by this common order. 3. The petitioners of both these application i.e. Cri.Misc. Application No. 6523/2000 and 1722/2001 are facing trial of the offences punishable under sections 22 & 24 of the Narcotic Drugs & Psychotropic Substances Act,1985 read with section 120B of IPC and section 29 of the Narcotic Drugs & Psychotropic Substances Act,1985. (hereinafter referred to as the "NDPS Act" ). Both these petitioners had prayed earlier for bail pending trial on more than one occasions before this Court and before the Sessions Court. Sessions Case No. 162/94 pending in the Court of ld. Addl. City Sessions Judge, Ahmedabad, is a commenced trial and some witnesses are also examined. The petitioners came to be arrested for the alleged offences on 8.11.1993 and till then, they are in custody. Some and substance of these petitions is that though their bail plea had been rejected earlier, they should be enlarged on bail as the trial is protracted for very long period in view of the right flowing from Article 21 of the Constitution. An undertrial languishing in jail for no fault on his part, atleast should be released on bail, if it is not possible or practicable to close the trial or to terminate the proceedings considering the right of speedy trial embodied in Article 21 of Constitution. In some cases, enlargement of accused on bail may be necessary to meet the requirements of Article 21, is the backbone of the submissions advanced by ld. counsel appearing for the petitioners. 4. Ld. Spl.P.P. Shri D.N.Patel appearing for department of Deputy Director-Directorate of Revenue Intelligence - respondent no.2 and ld. APP Mr. Gohil appearing for respondent no.1 State have resisted the bail plea and it is argued that considering the ratio of various decisions of the Apex Court, the present accused are not entitled to bail under the alleged right following from Article 21. As it happens in many cases, parties' counsel have placed their reliance mainly on same judgments cited and have tried to interpret the ratio and observations of the Apex Court from their point of view. 5. It is the case of the prosecution that on receipt of specific information, officers of Directorate of Revenue Intelligence (hereinafter referred to as " DRI") had intercepted export consignment on 4.11.1993 at Air India Warehouse, Mumbai. Consignment was booked from Air Cargo Complex, Ahmedabad by one M/s Advance Exports, Ahmedabad and was meant for export to Nairobi. Consignment was examined minutely and it was found that it contained Methaquolone tablets popularly known as "Mandrex Tablets". According to the prosecution, these Mandrex Tablets weighing about 162 kgs. were seized in view of the provisions of the NDPS Act. It is pleaded by the prosecution that during follow-up action, certain statements of different individuals were recorded and some search was carried out at the residence of Dr. Bipin Panchal- petitioner of Cri.Misc. Application No. 6523/2000 on 5.11.1993. Some incriminating documents as well as export seal were sized and statement of accused Bipin Panchal was recorded after interrogation on 6.11.1993. DRI had investigated the offending act by recording statements of various persons and there were different seizures whereby Mandrex Tablets came to be seized on or about 12th & 13th January,1994. It is also the case of the prosecution that number of other incriminating documents were seized and ultimately, complaint came to be filed against the accused persons. Sample drawn from Seizure made by DRI were sent to Forensic Science Laboratory, Ahmedabad for testing etc. which confirmed the presence of Methaquolone in the said sample. In short, the petitioners are from the group of accused facing trial of conspiracy to manufacture, possess and export the Methaquolone Tablets viz. Mandrex Tablets. Petitioner Bipin Panchal, as per the say of the prosecution, is the main accused. 6. So far as petitioner-accused Bipin Panchal is concerned, he has preferred Cri.Misc. Application No. 3122/93 before the City Sessions Court and the same was rejected by the ld. City Sessions Judge vide order dated 4.2.1994. Said petitioner had also submitted an application for bail before this Court and the same was also rejected. Thereafter, petitioner Bipin Panchal had preferred Special Leave Petition No. 1402/94 before the Apex Court and the same was also rejected. In the month of July,1994, prosecution applied to join other persons as accused in exercise of powers under sec. 319 of CrPC and the trial Court, vide order dated 4.1.1996, directed to join one Amrut Soni @ Mama and Aniruddhasinh Jadeja as accused in this case. As accused Aniruddhasinh was not available on the day of framing of charge, ld. Addl. City Sessions Judge, Ahmedabad, after considering all the papers, framed charge against 8 accused. Thereafter, on 13.3.1997, said Aniruddhasinh was apprehended at International Airport. Bail plea of this accused Aniruddhasinh was accepted by the High Court and he was ordered to be enlarged on bail vide order dated 8.4.1997. Said accused Aniruddhasinh had also preferred discharge application before the Court of ld. Addl. Sessions Judge, Ahmedabad and on consideration of relevant material, the order discharging accused Aniruddhasinh came to be passed on 12.5.1997. The said order of discharge was challenged before the High Court of Gujarat vide Cri. Revision Application No. 472/97 and on 22.10.1997, the order of stay of trial was obtained by prosecution in the said Revision Application. Ultimately, said Cri. Revision Application was allowed and accused Aniruddhsinh was joined as an accused vide order dated 5.5.1998. Ultimately, fresh charge was framed by the trial Judge on 13.7.1998. 7. Accused Aniruddhasinh applied before the trial Court to drop proceedings against him on 11.3.1999. The said application was rejected by the trial court on the very same day. So, accused Aniruddhasinh moved the High Court by preferring Cri. Misc. Application No. 2284/99 and the High Court, stayed the proceedings of trial vide order dated 9.4.1999. Thereafter, vide order dated 23.9.1999, High Court discharged the accused Aniruddhasinh Jadeja. 8. Mr. A.D.Shah, ld. Senior Counsel appearing for petitioner accused Bipin Panchal has submitted that the Supreme Court of India, while rejecting the application for bail filed by the petitioner, had given direction to expedite the trial vide order dated 8.1.1996, but as referred hereinabove, because of other ancillary proceedings and intervening stay, the trial was not concluded and the petitioner was languishing in jail since many years. So, he moved another application for bail before the High Court being Misc. Criminal Application No. 2898/99 which also came to be rejected by the High Court vide order dated 29.10.1999. The order of the High Court was challenged before the Apex Court by filing Spl.Leave Petition (Criminal) No. 223/2000. Meanwhile, ld. Addl. City Sessions Judge again framed fresh charge against original accused nos. 1 to 7 on 8.2.2000. Supreme Court of India, while disposing of aforesaid SLP (Cri.) No.223/2000, passed the following order, on 31.3.2000:- " 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." Prosecution, while recording evidence of Mr. Daniel Rajkumar Wellington,( P.W.23, Exh.301 ), prosecution wanted certain documents to be exhibited and defence objected to the admission of said documents. Objection raised by the defence was sustained by the trial Judge and trial Court refused to take/ exhibit documents intended to be exhibited and taken on record. This order of trial Judge dated 16.8.2000 came to be challenged by the complainant before the High Court by filing Spl.Criminal Application No. 789/2000. On 11.9.2000, High Court issued notice and stayed further proceedings of Sessions Case No. 162/94. This Spl. Criminal Application No. 789/2000 is pending before this Court. According to the petitioner Bipin Panchal, he has been languishing in jail for more than seven years and yet trial is not over. Grievance of the petitioner is that though the Apex Court has earlier expedited the trial vide order dated 8.1.1996 and thereafter vide order dated 31.3.2000 observing that the trial should be over within a period of six months, trial has not proceeded further satisfactorily. Considering number of witnesses to be examined and multiplicity of ancillary proceedings, suggests that it is not possible for the petitioner to assess as to when trial will conclude. Mr. Shah has submitted that the prosecution relies on the evidence of 144 witnesses and after a period of almost more than seven years, less than 50% of witnesses could be examined. Mr. Shah has submitted that considering the order of the Apex Court dated 31.3.2000, this application is moved again for bail. Mr. Shah has taken me through certain observations made by the Apex Court in number of decisions. I would like to refer some of the decisions relied on by ld. Senior Counsel Mr. A.D.Shah for the petitioner-accused:- (1) "Common Cause"- A Registred Society v/s Union of India, (1996) 6 SCC 775. (2) "Common Cause"- A Registred Society v/s Union of India, (1996) 4 SCC 33. (3) Rajdeo Sharma (I) v/s State of Bihar, (1998) 7 SCC P.507. (4) Rajdeo Sharma (II) v/s State of Bihar, (1999) 7 SCC P.605. (5) Anilkumar Gandhi and others v/s N.C. B. and others, 1992 CrLJ 1703 (6) A.R.Antulay v/s R.S.Nayak, 1992(1) SCC 225. 9. Mr. Achint Navinbhai Patel - petitioner of Cri. Misc. Application No. 1722/2001, has also prayed for bail pointing out the facts stated herein above. He has specifically submitted that he had applied for grant of bail before the trial Court, High Court and the Apex Court, but the said applications have been rejected. Because of protraction of trial, petitioner-accused Anchit has again approached this Court for bail by filing Cri.Misc. Application No. 5397/1999 which was heard and rejected by this Court ( Coram: R.P.Dholakia,J) vide order dated 10.12.1999. He had moved the Apex Court by filing Special Leave to Appeal against the order of this Court dated 10.12.1999, but the said SLP also came to be dismissed by the Apex Court vide order dated 1.9.2000. Mr.B.B.Naik, ld. counsel appearing for the petitioner-accused Mr. Achint Patel has pointed out that while dealing with other matters pertaining to this very crime filed by accused Bipin Panchal, the Apex Court, vide its order dated 22.2.2001, has observed that:- " 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 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." 10. Grievance of ld. counsel Mr.Naik is that even today, trial is not completed and it is not known to the petitioner that when trial would be completed by the trial Court. He has also tried to point out the complexity of the facts and nature of evidence against accused Achint Patel. The petitioner-accused Achint had prayed for bail before the trial Court and had pointed out relevant part of the order passed by the Apex Court on 31.3.2000. Relying on the contents of the order passed by the trial Judge rejecting the bail application, ld. counsel Mr. Naik has submitted that the trial Judge is of the view that accused could have been granted bail. Trial Judge, in its order dated 10.11.2000, has stated that: " I may state that trial has begun, yet it is not completed till now. Neither accused nor prosecution is at fault for the delay. In the circumstances, such application should have been allowed, but here as observed by the High Court, the accused is actively involved in huge quantity of contraband articles. ..... ..... .... ..... ... There is no guarantee when the matter will be completed, but the circumstances are beyond the control of the Court and the prosecuting agency ........". Mr.Naik has submitted that feeling aggrieved with the order passed by the trial Court, the present plea of bail is raised before this Court in view of the right of speedy trial embodied in Article 21 of the Constitution. He has placed reliance on all the judgments cited by ld. Senior Counsel Mr. A.D.Shah and has further submitted that ratio propounded in the decision in the case of Supreme Court Legal Aid Committee (supra) can squarely be applied to the present case. Pressing his reliance on on the decisions; viz (i) Dadu @ Tulsidas v/s State of Maharashtra (2000)4 Crimes 124 (SC), and (ii) Smt. Akhtari Bi v/s State of M.P., JT 2001 (4) SC 40, (iii) Supreme Court Legal Aid Committee representing Undertrial Prisoners v/s Union of India & Others, (1994)6 SCC 731,and (iv) Shaheen Welfare Association v/s Union of India and Others, AIR 1996 SC 2957, ld. counsel Mr. Naik has submitted that speedy justice is a fundamental right flowing from Article 21. Therefore, where nobody could be held responsible for protraction of trial or playing dilatory tactics, accused atleast should be enlarged on bail. Apex Court had requested the Chief Justices of the High Courts where criminal cases are pending for more than five years, to take immediate effective steps for their disposal by constituting regular and special Benches for that purpose. Convict lady was ordered to be enlarged on bail by placing order of conviction and sentence passed against her in abeyance. The criminal appeal pending before the Madhya Pradesh High Court was considered as "trial deemed to be continuing despite conviction." 11. Spl.P.P. Mr. D.N. Patel has tried to distinguish the decisions relied upon by the counsel appearing for the petitioners, stating that most of the cases relied on by the petitioners are for the offences punishable under the IPC or which can be termed as less grievous offences than the charges which the present petitioners are facing. Quoting certain observations of the Apex Court from the decisions of the Apex Court where bail plea of the accused of the offences punishable under the NDPS Act was rejected, has submitted that each offence punishable under the NDPS Act should be viewed with all sensibility and caution. Strength of the country, mental and physical health of coming generation of the nation along with international illicit trafficing of drugs etc. should be considered on different footing. While exercising judicial discretion, the Court has to consider many aspects touching the crime, its gravity, quantum of punishment vis-a-vis other aspects as to scope for the accused to jump the bail or to play with or influence the witnesses etc. Period consumed on account of stay against the proceedings granted by the higher forum should be excluded while considering the alleged period of delay or protraction. Maximum punishment prescribed is relevant for the purpose. Looking to the quantity of Mandrax tablets seized by the Investigating Agency, period of 7 years or more cannot be said to be unreasonably long period. Mr. Patel has submitted that verdict of Apex Court while dealing with Common Cause Cases (supra) & Rajdeo Sharma Cases (supra), should be considered in proper perspective. These decisions are mainly dealing with the cases where punishment prescribed is less than 7 Years. Decision of the Apex Court in the case of Shaheen Welfare Association (supra), helps the prosecuting agency. Trial is now proceeding day to day basis and the prosecution is examining witnesses regularly. According to Mr. Patel, decision in the case of Supreme Court Legal Aid Committee (supra) does not help the the petitioner. On the contrary, on more than one occasions, bail plea of both the petitioners has been rejected by the Apex Court on merits. So, embargo of section 37 of the NDPS Act would come in the way of petitioners even while praying bail on account of alleged protraction of trial. Section 37 of the NDPS Act is a separate provision and language of section 37 of the NDPS Act itself suggests that unless the Court is of the view that there is no scope to hold the accused guilty, the application for bail either under CrPC or under any other law can not be considered. Some portion of vital period is spent by the Investigating Agency in dealing with technical objections raised by the defence side during the trial and in handling other proceedings. Now, the prosecuting agency would be able to conclude the trial at the earliest in view of the decision of the Apex Court dated 22.2.2001 in Cri. Misc. Petition No. 862/2001 in Petition for Special Leave to Appeal (Cri.) No. 223/2000. Respondent Prosecuting Agency had moved the Apex Court by filing Cri.Misc. Petition No. 223/2000 for modification. So, there will be no scope for further protraction of trial. So, in the nutshell, according to Mr. Patel, bail applications preferred by both the petitioners should be dismissed. In response to the query raised by this Court, ld. Spl.P.P. Mr. Patel has objected grant of even temporary bail on stringent conditions viz. to mark presence before responsible officer of respondent no.2 DRI frequently viz. even on the day on which they are not required to appear before respondent no.2. 12. I have gone through all the decisions cited by the counsel appearing for the parties and their scholarly submissions on legal as well as procedural aspects of the matter coupled with right of speedy trial embodied in Article 21 of the Constitution in special reference to various cases on different set of facts. ld. Spl.PP Mr. D.N.Patel has hammered that in view of the observations of the Apex Court in the case of A.R.Antulay (supra) and Rajdeo Sharma(II) (supra) (paras 12, 13 & 17 ), this Court should hold that looking to the peculiar set of facts, the petitioners should not be enlarged on bail on the alleged right flowing from Article 21 of the Constitution. Ld. Spl.PP Mr. Patel has placed further reliance on the following decisions:- (i) Rajdeo Sharma v/s State of Bihar (supra) ( 1998 SCC (Cri.) 1692 ) (ii) "Common Cause" a Registered Society through its Director v/s Union of India and othrs (supra), ( AIR 1996 SC 1619 ). (iii) Dadu @ Tulsidas v/s State of Maharashtra (supra); (iv) Anil Kumar Gandhi and others v/s N.C. B. (supra) ( Paras-9 & 12 ) 13. After giving anxious consideration to all the the factual as well as legal aspects brought before me, it is not a matter of dispute that the petitioners are facing trial of a very serious offence prescribing 20 Years of R/I and very heavy amount of fine. Apprehension of jumping bail, on this lone count, is more likely. It can legitimately be said that if liberty is made available, then accused of such crime may try to influence the witnesses. It is also pertinent to note that the Sessions Court has started recording evidence and trial has commenced, but the fact remains that both the petitioners are in judicial custody since more than Seven years. I agree that petitioner Bipin Panchal has not approached the Court of Sessions for bail, after dismissal of his SLP on 31.3.2000, but it is rightly submitted by ld. Senior Counsel Mr. Shah that the petitioner had approached this Court for bail considering the provisions of Article 21 of the Constitution of India as he was languishing in jail for no fault on his part in protracting the trial. So,as per the observations of the Apex Court, he has approached this Court for the same plea and it is not necessary to go before the Court of Sessions. He, considering the concurrent jurisdiction and the fact that other co-accused who had approached Court of Sessions for bail on the strength of very observations of the Apex Court and failed, has therefore pleaded that the application preferred for bail before this Court, can be considered. So, I am not inclined to dismiss the application of the petitioner accused Bipin Panchal on this technical submission made by ld. Spl.PP Mr. Patel. 14. The petitioners are undertrials for more than seven years. So, they have yet not spent even 50% of the maximum period of punishment prescribed. So, they would not be entitled for bail on account of delayed trial. This submission of Mr. Patel would not sustain in light of the decision of the Apex Court in the case of Supreme Court Legal Aid Committee (supra), because the Apex Court, after considering all the relevant decisions i.e. (i) Hussainara Khatoon (iv) v/s Home Secy., State of Bihar, 1980(1) SCC 98, (ii) Raghubir Singh v/s State of Bihar, 1986(4) SCC 481, and (iii) Kadra Pahadiya v/s State of Bihar, (1983)2 SCC 104, has observed that Articles 14, 19 and 21 sustain and nourish each other and any law depriving a person of personal liberty must prescribe procedure which is just, fair and reasonable. While categorising the offences punishable under the NDPS Act, the Apex Court has considered minimum period of imprisonment while granting bail to the undertrial prisoners. When this Court is not considering the question of closure of proceedings or termination of trial, the maximum period of punishment prescribed for a particular offence, would not be very relevant otherwise, it can be argued that undertrials of the offences punishable under NDPS Act where the maximum punishment prescribed is R/I for 20 Years, cannot be enlarged on bail till they spent about 10 years in custody as undertrials. Sensitivity attached to the crime and gravity are relevant aspects, but whether such offender can be put behind the bar for 19 Years 11 Months & 29 Days, is the question to be decided. The Apex Court, while dealing with the case of Supreme Court Legal Aid Committee (supra), has considered each aspect including the the provisions of Section 37 of the NDPS Act. Ld. Spl.PP Mr. Patel has tried to emphasize that as the bail plea of both these petitioners was entertained and rejected on merits on more than one occasions, they cannot be enlarged on bail in view of the embargo of Section 37 of the NDPS Act in view of the observations of the Apex Court in the case of Supreme Court Legal Aid Committee (supra). This submission is not sustainable. The Apex