State of J&K vs Devi Singh - 2021 Supreme(J&K) 370

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(J&K) 370

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Vinod Chatterji Koul, J.
State of J&K – Appellant
Versus
Devi Singh and Ors. – Respondents
CONCR No.71/2015 in SLA No.86/2015
Decided On : 30-07-2021

Advocates:
Advocate Appeared:
For the Petitioner(s): Mr. Aseem Sawhney, AAG
For the Respondent(s): None

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 9A and 25A-Code of Criminal Procedure, 1973-Section 378-Appeal against acquittal-Application seeking leave to appeal along with appeal is sought to be filed after a delay of 305 days-Delay in filing application has sought to be condoned on the ground that on receipt of copy of judgment from trial court, appellant immediately called for record of case and matter after having been examined at different levels was considered to be fit for filing of appeal and law department advised appellant to file appeal-This is the ground on which condonation of delay of 305 days is sought for filing application seeking leave to file appeal along with appeal.
Held-Reasons shown in application are not sufficient-There is delay of 305 days and it has nowhere been shown as to what were sufficient reasons which caused delay of 305 days in filing application-Courts should always take liberal approach in matter of condonation of delay, particularly when appellant is Sate, but while considering application, Court should also find out as to whether there is any merit in appeal filed by State or not. (Paras 2 and 3)
There is distinction between inordinate delay and delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted-That apart, first one warrants strict approach whereas second calls for a liberal delineation-Conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration-It is so as fundamental principle is that courts are required to weigh scale of balance of justice in respect of both parties and said principle cannot be given a total go by in name of liberal approach-If grounds made in application are fanciful, courts should be vigilant not to expose other-side unnecessary to face such a litigation-In instant case, there is delay of 809 days in approaching this Court, which cannot be terms as of a short duration-This is an inordinate delay, which cannot be condoned in absence of sufficient reasons to be shown by applicant, which in instant case are lacking-Delay of 805 days in filing application seeking leave to appeal, which has not been sufficiently explained, cannot be condoned-Accordingly, application seeking condonation of delay is dismissed-Consequently, application seeking leave to file appeal shall also stand dismissed. (Paras 8, 9 and 10 )
Result-Application seeking leave to appeal dismissed.

JUDGMENT :

Vinod Chatterji Koul, J.

1. The appellant-State is seeking indulgence of this Court for permitting them to file appeal against the order of acquittal dated 30.05.2014 passed by the learned 1st Additional Sessions Judge, Jammu in File No.72/Sessions titled State v. Devi Singh and others, whereby the accused, who were facing trial for offences under Sections 9A and 25A NDPS Act, have been acquitted.

2. The application seeking leave to appeal along with appeal is sought to be filed after a delay of 305 days. The delay in filing the application has sought to be condoned on the ground that on receipt of copy of the judgment from the trial court, the appellant immediately called for the record of the case and the matter after having been examined at different levels was considered to be fit for filing of appeal and the law department vide communication dated 06.02.2015 advised the appellant to file the appeal. This is the ground on which the condonation of delay of 305 days is sought for filing application seeking leave to file appeal along with appeal. A perusal of the application would show that the reasons shown in the application are not sufficient. There is delay of 305 days and it has no where been shown as to what were the sufficient reasons which caused delay of 305 days in filing the application.

3. It is true that the Courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the Sate, but while considering the application, the Court should also find out as to whether there is any merit in the appeal filed by the State or not.

4. The Supreme Court in Office of The Chief Post Master General v. Living Media India Ltd., AIR 2012 SC 1506, has been held that:

“12. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.”

5. In Amalendu Kumar Bera v. State of West Bengal, (2013) 4 SCC 52, it has been held by the Supreme Court that:

“Merely because the Respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in absence of ‘sufficient cause’ delay shall not be condoned