Criminal Revision No. 1983 of 2002 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 1983 of 2002 Date of Decision: 21.4.2010 Dalip Singh …Petitioner Versus Assistant Collector of Customs, Ministry of Finance, Government of India, Amritsar …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Amar Singh Sandhu, Advocate for the petitioner. Mr. H.P.S. Ghuman, Senior Standing Counsel for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition has been preferred by Dalip Singh son of Mangal Singh, who was prosecuted in a complaint instituted by the Assistant Collector of Customs, Ministry of Finance, Government of India, Amritsar. Briefly stated, the facts of the prosecution case can be gathered as under:- On 14.12.1980, the CIA Staff, Amritsar, searched in person one Ramesh Kumar alias Gogga in front of the house of the father of the petitioner bearing House No. 439/13, Rani Bazaar, Sharifpura, Amritsar, and two pieces of silver Criminal Revision No. 1983 of 2002 2 weighing 2.075 Kgs. were recovered from him. Thereafter, in the presence of Mangal Singh and his son Dalip Singh, present petitioner, the CIA Staff searched his house. The search yielded 25 parcels of primary gold including one gold biscuit of 10 tolas bearing foreign marking, 21 parcels of silver weighing 18.990 Kgs. and 150 watches (143 of Richoh and 7 of Nino) of foreign origin. The house, from where the recovery was effected, is situated within 30 kms. from the International Border. The goods recovered were seized and were handed over to the Central Excise and Customs Staff. The petitioner was charged for the offences under Section 85 of the Gold (Control) Act, 1968 (hereinafter referred to as “1968 Act”) and Section 135 of the Customs Act, 1962 (hereinafter referred to as “1962 Act”). The Court of Chief Judicial Magistrate, Amritsar, vide its judgment dated 17.5.1993, held the petitioner guilty for the offences for which he was charged and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.2,000/-, in default whereof, to further undergo rigorous imprisonment for a period of three months, for the offence under Section 85 of the 1968 Act. He was also sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.4,000/-, in default whereof to further undergo rigorous imprisonment for a period of six months, for the offence under Section 135 of the 1962 Act. Aggrieved against the judgment of conviction and order of sentence, passed by the Court of Chief Judicial Magistrate, Amritsar, the Criminal Revision No. 1983 of 2002 3 petitioner had filed an appeal. The Appellate Court, found no merit in the appeal and the same was dismissed by upholding the conviction and maintaining the sentence. The trial Court in para 26 of the judgment, noted the age of petitioner as 50 years and had observed as under:- “26. Section 140-A of the Customs Act and Section 98-D of the Gold (Control) Act, prohibit the release on probation of a convict unless he is less than 18 years of age. The present convict is 50 years old and, therefore, does not deserve to be released on probation. Let him be heard on the point of sentence”. Mr. Amar Singh Sandhu, Advocate, appearing for the petitioner, at the outset, has submitted that he will not contest the conviction of petitioner. He, however, submits that in the present case, recovery was effected in the year 1980. The petitioner is already in the corridors of the Court for the last about 30 years. He has suffered mental pain and agony of protracted trial. The charge was framed on 27.2.1985. At the time of framing of charge, age of the petitioner recorded was 50 years. Now the petitioner is aged about 75 years. A reliance has been placed upon the judgment rendered by the Hon'ble Apex Court in Pankaj Kumar v. State of Maharashtra and Others 2008(4) Recent Criminal Reports 890, wherein it has been observed as under:- “15. The exposition of Article 21 in Hussainara Khatoon's case (supra) was exhaustively considered Criminal Revision No. 1983 of 2002 4 afresh by the Constitution Bench in Abdul Rehman Antulay & Ors. v. R.S. Nayak & Anr., 1992(2) RCR (Crl.) 634 : (1992)1 SCC 225. Referring to a number of decisions of this Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are : (i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial; (iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay?; (iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court Criminal Revision No. 1983 of 2002 5 concerned, prevailing local conditions and so on - what is called, the systemic delays; (v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case; (vi) ultimately, the court has to balance and weigh several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the right to speedy trial has been denied; (vii) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial; (viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal Criminal Revision No. 1983 of 2002 6 proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint; (ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis. XXX XXX XXX XXX XXX XX 17. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant Criminal Revision No. 1983 of 2002 7 circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial”. Now, it is a settled legal position that the revision is a continuation of the trial. The very fact that the petitioner is in litigation for the last about 30 years, the same can be construed as a mitigating circumstance. Hence, taking this fact alone into consideration, sentence awarded to the petitioner is reduced to that of already undergone. With the observations made above, the revision petition is disposed of. (Kanwaljit Singh Ahluwalia) Judge April 21, 2010 “DK”