1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 41 OF 2009 IN CRIMINAL APPLICATION NO. 310 OF 2009 IN CRIMINAL APPEAL NO. OF 2008 Union of India Intelligence Officer, Narcotics Control Bureau, Mumbai .. Applicant Vs. 1. Gulam Mohmmed Malik and ors. .. Respondents Mr. D.N. Salvi for applicant. Mr. Ayaz Khan for respondent no.2. Mr. P.A. Pol, P.P. with Ms. P.P. Shinde, APP for respondent no.3-State. CORAM: B. H. MARLAPALLE & MRS. MRIDULA BHATKAR, JJ. April 01, 2010. P.C. 1. Heard Mr. Salvi the learned Special Public Prosecutor for the applicant – Union of India through the Intelligence Officer, NCB, Mumbai Unit. Mr. Ayaz Khan appears for respondent no.2. 2 2. Criminal Application No. 310 of 2009 has been filed by the Union of India under Section 378(2) of Cr.P.C. and sought leave to appeal under Section 378 (3) of the said Code. However, the said application has been presented belatedly and, therefore, this application for condonation of delay. Though it was contended that the application is beyond time by 96 days, the delay appears to be more than 150 days, having regard to the fact that the order of acquittal was passed by the learned Special Judge under the NDPS Act on 6/2/2008. 3. By our order dated 23/3/2010 we had directed the Intelligence Officer, NCB, Mumbai Unit to file an additional affidavit explaining the delay caused on day to day basis and accordingly an additional affidavit affirmed by Shri K. S. Hate, Intelligence Officer, NCB, Mumbai has been placed on record. 4. In the said additional affidavit it has been stated that after the order of acquittal was passed on 6/2/2008, an application for certified true copy was submitted on the very same day and a certified true copy was delivered on 27/2/2008. The opinion of the Public Prosecutor who appeared before the trial court was received for the first time on 6/4/2008 3 i.e. two months after the order of acquittal came to be passed. On 9/7/2008 for the first time the NCB, Mumbai Unit approached the Law Ministry with a proposal to file an appeal against the order of acquittal and thus when this approach was made, the period of limitation of 90 days had already expired. On 31/7/2008, the Law Ministry gave a clearance and docket was issued in the name of Shri Salvi on 12/8/2008. During the next three months nothing happened and the additional affidavit states that on 21/11/2008 the draft of the application as well as appeal memo was affirmed. However, shockingly, the registration of the application as well as the appeal has taken place for the first time on 21/1/2009 i.e. after two months from the date of affirmation and a one line explanation furnished in the additional affidavit is that it took some time to remove the office objections raised by the Registry. Thus the applicant received the certified true copy of the acquittal order on 27/2/2008 and the application seeking leave to appeal has been filed on 21/1/2009 i.e. after 11 months. 5. Mr. Ayaz Khan, the learned counsel for the respondent no.2, opposed this application and submitted that even the additional affidavit went to show that the officers concerned failed to take timely steps and by the time they had approached the Law Ministry, the period of five months 4 had already lapsed. He pointed out that at every stage there remains a delay of more than two months which has not been explained, leave alone proper explanation. He, therefore, relied upon the following observations made by the Supreme Court in the case of Ajit Singh Thakur Singh and anr. vs. State of Gujarat [AIR 1981 SC 733]: “6. ...........The truth appears to be that the appeal was not filed at first because the State Government saw no case on the merits for an appeal, and it was filed only because the High Court had observed – and that was long after limitation had expired – that the case was fit for appeal by the State Government. Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to 5 expire without the appeal being filed must be traced to a cause arising without the period of limitation......” 6. Mr. Salvi, the learned Special Public Prosecutor has invited our attention to the explanation furnished in the additional affidavit and submitted that against the sanctioned strength of 13 Intelligence Officers with the NCB, Mumbai Unit, in the year 2008-09 there were only eight officers posted and Shri S.V. Bhat who was the Intelligence Officer entrusted with the court cases came to be assigned with a Specific Surveillance on a group of foreigners who were suspected to be members of an international drugs syndicate and that is an additional reason that delay was caused to approach the Law Ministry. As we have noted earlier, even from the time the docket was received on 12/8/2008 in the name of Mr. Salvi, there has been unexplained delay and to counter this, it was submitted by Mr. Salvi that the NCB Unit at Mumbai is over burdened, he himself had to study the order of acquittal, prepare a draft of the appeal memo along with the application and therefore, on mere technicalities the application for leave to appeal should not be allowed to fail. He placed reliance on the following observations made by the Apex Court in the case of State (NCT of Delhi) vs. Ahmed Jaan [JT 2008 (10) SC 179]: 6 “14. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay – intentional or otherwise – is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression “sufficient cause” should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day’s delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for 7 decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. 6A. In the case of State (Delhi Administration) vs. Dharampal [AIR 2001 SC 2924] the Supreme Court held that for condonation of delay caused in filing an application filed under Section 378 of Cr.P.C., Section 5 read with Article 114 of the Limitations Act, 1963 would be applicable and, therefore, an application filed for seeking leave to appeal is required to be filed within ninety days. 7. This is not the first application that we are dealing with filed by the NCB, Mumbai Unit for condonation of delay caused in filing an application for 8 leave to appeal or special leave to appeal and invariably in almost every case such an application is moved, which indicates that delay is a matter of routine with NCB, Mumbai. At times we had condoned the delay by accepting the reasons furnished and at other times we had rejected the applications as we were not impressed by the explanation so furnished. We are informed that the NCB, Mumbai Unit is under the over all charge of the Director General, NCB, Head Quarters, New Delhi and unless sufficient infrastructure is provided by the Director General, it appears such applications would continue to come up before us. This application has been waiting for the last more than one year and initially the officers of NCB take their own time to cause notice on the respondent- accused and for months together requisite steps are not taken to ensure that the notice is served. The reason could be either lack of infrastructure or the casual attitude of the officers concerned. We, therefore, deem it appropriate that while condoning delay in this application, it would be appropriate to issue directions to the Director General, NCB, Head Quarters, New Delhi as well as the Zonal Director of NCB, Mumbai Unit, and hence we direct as under: (a) The vacant post of Intelligence Officers shall be filled in before 30th June, 2010 9 (b) The NCB, Mumbai Unit in consultation with the Law Ministry shall prepare a panel of Special Public Prosecutors for the High Court as well on the lines of the panel the said agency has prepared for the trial court. (c) The Zonal Director, NCB, Mumbai Unit shall nominate separate Intelligence Officer to co-ordinate with the court cases and one officer for the trial court and another officer for the High Court. This shall be done by 31st May, 2010. (d) The NCB, Mumbai shall work out an appropriate mechanism to ensure that the notices issued by this court are served on the respondents, in any case, within 12 weeks. 8. We have considered the arguments advanced by Mr. Ayaz Khan as well as the authorities cited by both the parties and having regard to the directions we have issued to the Director General, NCB, Head Quarters, New Delhi and the Zonal Director of NCB, Mumbai Unit, we deem it appropriate to condone the delay caused in filing Criminal Application No. 310 of 2009. 10 9. Hence, delay condoned and the application is allowed accordingly. 10. List Criminal Application No. 310 of 2009 in the admission board on 7/4/2010. (MRS. MRIDULA BHATKAR,J.) (B. H. MARLAPALLE, J.)