1 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2403 OF 2009 Union of India .. Applicant. Versus Amina Hamza Shaikh @ Lali & Ors. .. Respondents Mr. D.N. Salvi for Applicant Union of India. Mr. Ayaz Khan for Respondent No.2. Mr. J. P. Yagnik, A. P. P. for Respondent No.3 State. CORAM : B. H. MARLAPALLE & S. J. KATHAWALLA,JJ. DATE : APRIL 20, 2010 P.C.:- Heard Mr.Salvi, the learned counsel for the applicant. Mr. Ayaz Khan for accused no.2. Accused no. 1 could not be served and we have noted by our earlier order dated 11th March, 2010, that the applicant had sought to file an application for separating her case from accused no. 2. In the subsequent order passed on 9th April, 2010, it was noted that the application would be considered only against respondent 2 no.2. Mr. Ayaz Khan appears for the respondent no.2. The applicant has filed criminal appeal for seeking leave to appeal under section 378 (3) of Criminal Procedure Code, 1973 but belatedly and hence this application for condonation of delay. 2. The delay is beyond 239 days and as directed by us, an additional affidavit has been filed by Mr. K. S. Hate Intelligence Officer, Narcotic Control Bureau (NCB), Mumbai to explain the delay so caused in filing the Appeal. As per the said affidavit it is stated that the learned trial Court has passed Judgment on 28th August, 2007. The application for certified copy of the said Judgment was made on 29th August, 2007. The certified copy was not ready till 19th June, 2008. The office of the Public Prosecutor before the Special Court appears to have waited for the copy to be delivered and it was so done on 10th July, 2008 and thus about 20 days time was lost. On 22nd July, 2008, the NCB received the opinion of the concerned Public Prosecutor upon the Judgment passed by the learned Special Court so as to file leave to appeal against the Judgment and Order of acquittal and the proposals put up on 29th August, 3 2008 before the Superintendent was approved on 2nd September, 2008. The Deputy Legal Advisor from the Law Ministry by his letter dated 11th September, 2009 recorded his opinion that the NCB may file an appeal and as per the said approval a letter was issued to the Branch Secretariat on 24th September, 2008. On 29th September, 2008 a docket was issued by the Ministry of Law and Justice in the name of Mr. D. N. Salvi as the Special Public Prosecutor for drafting of this appeal and the said docket was received by Mr. Salvi on 1st October, 2009. We are inclined to give some latitude to the application till this stage. 3. However, the draft of the application and the memo of appeal was affirmed after six months i.e. on 2nd April, 2009 and the office objections were removed seven weeks thereafter i.e. on 21st May, 2009. Mr. Ayaz Khan, the learned counsel appearing for respondent no. 1 has strongly opposed to condone this delay after docket was received by Mr. D.N. Salvi on 1st October, 2009. The explanation furnished in affidavit is that Mr. Salvi was extremely busy in several other 4 Central Government and private matters and he is the only Special Public Prosecutor, who was conversant with the NDPS Act and to deal with the cases before the High Court. It has also been contended that the NCB Mumbai had the paucity of staff on account of the unfilled vacancies of the officers. 4. Mr. Salvi has also relied upon our earlier order dated 1st April, 2010 passed in criminal application no. 41 of 2010 where we have condoned the delay of about 150 days and also gave such directions to NCB, Mumbai as well as the Director General, NCB Head Quarter, New Delhi to ensure that such applications should be moved in time. 5. As per Mr. Ayaz Khan, this delay of six months and seven weeks does not deserve consideration of latitude in favour of the Union of India through NCB and even if Mr. Salvi, the learned Special Public Prosecutor has taken the blame on himself that by itself, cannot be a cogent and sufficient reason to condone the delay. Mr. Salvi, the learned Special Public Prosecutor placed reliance on the decision in 5 the case of Mata Din V/s. A. Narayanan , 1970(0) AIR (SC) 1953 and submitted that the Court should see whether the mistake of the counsel is bonafide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. He also relied upon the subsequent decision in the case of State of Nagaland V/s. Lipok AO, A.I.R. 2005 SC 2191 and more particularly the following observations : “ The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan V/s. M. Krishnamurthy (AIR 1998 SC 3222) it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case is sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, if not shown to an individual suitor, one cannot but take a practical view of the working of the 6 Government without being unduly indulgent to the slow motion of its wheels.” 6. In our earlier order dated 1st April, 2010 on which Mr. Salvi has placed reliance. We have quoted paragraph 17 of the very same decision in the case of State of Nagaland (Supra). It is held by the Supreme Court in the case of State (Delhi Administration) V/s. Dharmpal (AIR 2001 SC 2924) that for condonation of delay for filing an application under section 378 (3) of Criminal Procedure Code, section 5 read with Article 114 of the Limitation Act, 1963 would be applicable and therefore such an application seeking leave to file is required to be filed within 90 days. As submitted by Mr. Ayaz Khan our order dated 1st April, 2010, cannot be used in each and every case the same was passed keeping in mind the peculiar facts of that application. 7. In our order dated 1st April, 2010 we have directed the Director General, NCB, Head Quarter, New Delhi as well as the Zonal Director of NCB, Mumbai Unit to take steps by 30th June, 2010. The vacant post of Intelligence Officers shall be 7 filled in before 30th June, 2010. We have directed the NCB, Mumbai to prepare a panel of Special Public Prosecutor for High Court in consultation with the Law Ministry. It will not be permissible for NCB, Mumbai to rely upon our order of 1st April, 2010 beyond 30th June, 2010. As far as the instant case is concerned, we have noted that Mr. Salvi is the only Special Public Prosecutor and he has also to appeared before the other Benches of this Court as a Special Public Prosecutor for NCB as well as some other agencies of the Union of India. We do not see an element of lack of bonafides in the statement that on account of Mr. Salvi being over burdened, the appeal could not be filed within a period of six months and therefore without making a precedent, we deem it appropriate that on the peculiar facts and circumstances as set out in the affidavit in reply, the delay caused should be condoned. 8. Hence the application is allowed in terms of prayer clause (a). 9. Let the Criminal Appeal be listed for orders on 28th 8 April, 2010. (S. J. KATHAWALLA, J.) (B. H. MARLAPALLE, J.)