The right to speedy trial under Article 21 of the Constitution of India is applicable to Foreign Nationals and the proceedings pending against them cannot be quashed as a matter of course for denial of speedy trial under section 482 of the Code of Criminal Procedure, 1974.

Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 36-D - INTERPRETATION - RIGHT TO SPEEDY TRIAL - FOREIGN NATIONALS - APPLICABILITY - SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - QUASHING OF TRIAL - CONDITIONS.
Fact of the Case:

The Additional Sessions Judge, Bombay, referred this case to the High Court under section 395(1) and/or section 395(2) of the Criminal Procedure Code read with Chapter XVII para 10 of the High Court Criminal Manual. The reference raised the questions of whether the right to speedy trial under Article 21 of the Constitution of India is applicable to Foreign Nationals and whether the proceedings pending against these Foreign Nationals need to be quashed for the denial of the right to speedy trial under section 482 of the Code of Criminal Procedure, 1974.
Finding of the Court:

1. The right to speedy trial under Article 21 of the Constitution of India is applicable to Foreign Nationals. 2. The proceedings pending against Foreign Nationals cannot be quashed as a matter of course for denial of speedy trial under section 482 of the Code of Criminal Procedure, 1974. 3. The true interpretation of section 36-D(1) and (2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is that: a) Cases filed under the Act prior to 29th May 1989 shall be tried by the Sessions Court. b) Cases filed after 29th May 1989 shall be tried by the Special Courts constituted under the Act. c) If cognizance of a case is taken by the Sessions Court during the transitional period in the absence of the constitution of a Special Court in the real sense, the Sessions Court shall not be required to transfer the same to the Special Court if it has substantially proceeded with the trial.
Issues: 1. Whether the right to speedy trial under Article 21 of the Constitution of India is applicable to Foreign Nationals? 2. Whether the proceedings pending against these Foreign Nationals need to be quashed for the denial of the right to speedy trial under section 482 of the Code of Criminal Procedure, 1974? 3. The true interpretation of section 36-D(1) and (2) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Ratio Decidendi: 1. The right to speedy trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution of India. 2. The right to speedy trial is equally applicable to Foreign Nationals. 3. The proceedings pending against Foreign Nationals cannot be quashed as a matter of course for denial of speedy trial under section 482 of the Code of Criminal Procedure, 1974. 4. Section 36-D(1) and (2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is a deeming provision and requires to be given its true meaning having regard to the object of Act 2/1989. 5. During the transitional period, if no special Court is constituted in the real sense for offences committed under the Act after the commencement of the Act 2/89, the same will have to be tried by the Court of Sessions as if it is a Special Court subject to the proviso therein.
Final Decision: The reference was answered accordingly.

JUDGMENT - KURDUKAR S.P., J.:—The Principal Judge, Bombay City Civil Court and Sessions Judge, Bombay had forwarded this reference made by Shri H.S. Ghare, Additional Sessions Judge, Bombay, under section 395(i) and/or section 395(2) of the Criminal Procedure Code read with Chapter XVII para 10 of the High Court Criminal Manual. The order of reference reads thus:—

A. Suo motu reference is being made under section 395(1) and/or section 395(2) of the Code of Criminal Procedure (1974) in all cases pending before this Court No. 24 in which cognizance has been taken by the Court of Sessions before 4th January, 1991 to Hon'ble High Court on the question:—

“Whether right of speedy trial under Article 21 of the Constitution of India is applicable to the Foreign Nationals, and

“Whether the proceedings pending against these Foreign Nationals need to be quashed for the denial of right of speedy trial under section 482 of the Code of Criminal Procedure. 1974.”

B. Pending the decision of the Hon'ble High Court, in respect of the said reference, those undertrial Foreign Nationals, prisoners who apply for Bail will be granted bail as per section 395(3) of Criminal Procedure Code instead of retaining them in jail custody;

C. Presently, the said order of reference is declared in N.D.P.S. Special Cases Nos. 1047/89, 55/90, 454/90, 985/90, 886/89, 826/90, 841/90, 849/90 and 521/90 in cases which are on board today.

D. All these cases stand formally adjourned till 17th June, 1992 and the custody of these accused extended to await for Hon'ble High Court's decision on this reference.

Annexure B is year-wise break-up of criminal cases which are pending between 1986 and 1990.

(A) Cases registered as Sessions Cases

prior to 29-5-1989— 891

(B) Cases registered as N.D.P.S. Cases during

the period 29-5-1989 till 3-1-1991— 903

constitution of Special Court 305

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Total: 2099

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The Additional Sessions Judge has then given a further break-up of cases pending in Court Rooms Nos. 24, 25 and 40 (Special Courts under the N.D.P.S. Act). The Additional Sessions Judge in terms of section 395(2) of the Criminal Procedure Code, 1973 (for short 'the Code') has given a statement of cases for Reference, opinion and the reasons for the same (Annexure C). While giving the statement of case for Reference, opinion and the reasons. The learned Additional Sessions Judge in paragraph 21 has opined as under:

“Facing the uphill task and flooding representations and repeated Bail Applications in this Court No. 24 saddled with presently 1800 pending cases, I found no other alternative except to make this Reference on the questions involved regarding the applicability of Article 21 of the Constitution of India to the cases of Foreign Nationals and for interpretation of section 36-D(2) of the N.D.P.S. Act which directly affects the jurisdiction of Special Courts to deal with N.D.P.S. Act cases.......”

As per directions of the learned Chief Justice this reference was placed before the Division Bench for appropriate orders on 13-7-1992. Having regard to the urgency in the matter on 12-8-1992, we issued Rule-nisi and made it returnable peremptorily on 18-8-1992. This is how we are called upon the dispose of this Reference judicially on merits.

2. Before we deal with the rival contentions it would be appropriate to set out a few more facts which are germane to the decision on this reference.

The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') received assent of the President on September 6, 1985 and was published in the Gazette of India-Extraordinary, Part-II, Section I dated 16th September, 1985. It is not disputed before us that after enforcement of the Act and until section 36 of the Act came to be substituted by Act 2/1989. all complaints were required to be filed before the Magistrate, First Class and he was required to commit such cases for trial to the Sessions Court,

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1992 Supreme(Bom) 430

The right to speedy trial under Article 21 of the Constitution of India is applicable to Foreign Nationals and the proceedings pending against them cannot be quashed as a matter of course for denial of speedy trial under section 482 of the Code of Criminal Procedure, 1974.

Cases Referred (1)