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BOMBAY HIGH COURT
PANAJI BENCH, GOA (DB)
M.S. Vaidya and Dr. E.S. Da Silva, JJ.
Shrikant S. Alkar -Appellant
versus
State of Goa - Respondent
Criminal Appeal No. 51-1993
Decided on 29th Sept./6th Oct., 1994
Counsel for the parties:
For the Appellant: P.P. Singh.
For the Respondent: G.V. Bhobe, P.P.
Held: Section 309 of the Code of Criminal Procedure, 1973 contains a mandatory provision that in every injury or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the case beyond the following day to be necessary for reasons to be recorded. The emphasis of this Section cannot be overlooked and must not be overlooked by any Judicial Officer who tries a criminal case, much less by the higher Officers, like the Sessions Judges presiding over the Sessions Court, where serious offences are being tried day in and day out which, in the event of conviction, result sometimes in sentences which uproot the convicted person totally and grossly from the set up of his life. (Para 8)
Further held: We were told that there were various reasons due to which the Sessions Courts, as also the subordinate Courts, in the territory of Goa State, were not able to take up the matters ford ay to day trials. Formerly, there was "a monthly board system" for posting the cases. Later on, it was modified by "weekly board system" and particular days of a week were allotted for a particular category of work. We were told that there were only two Sessions Judges in the State of Goa till recently when some Additional Judges were posted to assist them. The Sessions Judges had, we ate told, multifarious jurisdiction such as the Motor Accident Tribunal cases, TADA cases, corruption cases, regular civil work, regular criminal work, NDPS cases, the work of appellate Motor Vehicle Tribunal under Motor Vehicles Act, land acquisition matters, besides the pressure of the administrative work with which the Sessions Judge is loaded. We were told that it was, therefore, impossible for the Sessions Judges to take up matters on day-to-day basis. If there is any such defect in the system, that system must be rectified because as pointed out by the Supreme Court in Hussainara Khatton's case (A.I.R. 1979 S.C. 1360), a system which cannot ensure a speedy trial can hardly be said to be 'reasonable, fair and just' procedure. Practically there is no Court in the State of Maharashtra as well, where the pressure of work is not far beyond the control of the Presiding Judge but that does not enable a Judge to give a go-by to the mandatory direction given in Section 309 of the Criminal Procedure Code or other similar provision contained in the Code of Civil Procedure to have tried a case once opened on day-to-day basis. The Courts are meant necessarily for administration of justice and if that object is likely to be defeated by adopting a system or a procedure, the ways and means must be mended so as to ensure that the justice is ensured to the parties. (Para 12)
Consequently held: We have expressed in sufficiently strong words our resentment about the practice of adopting a procedure of such piecemeal trial and, that too, particularly in a sessions case. There is no point in issuing a general direction to the Sessions Judges to conform with the provisions contained in Section 309 of the Criminal Procedure Code because we believe that the Sessions Judges are well aware of that provision. We only hope that they do not continue hereafter with their practice, for what ever reasons it may be of resorting to piecemeal trials which can possibly lead to miscarriage of justice. The defects in the present system as were pointed out to us and to which we have referred above could be of two categories - those which were within the control of the High Court and those which needed remedy at the hands of the State Government. The defects which can be remedied by the High Court can certainly be brought, in an appropriate manner, to the notice of the High Court for remedying them. The defects which can be cured only by the state Government will have to be brought to the notice of the State Government for redressal and should the State Government fail in discharging its duty in that behalf, efforts will have to be made to have those defects redressed through a judicial process to compel the State to redress those wrongs. We hope that the State Government, if the defects are pointed out to them, would take appropriate measures to redress the wrongs perpetrated on account of large pendency of cases, protraction of trials and delayed justice and the circumstances, if any, which make impossible for the Courts the completion hearings of cases with day-to-day hearings. (Para 14)
(ii) Narcotic Drugs and Psychotropic Substances Act, 1985 -Section 21 - Conviction under - Appeal - Piecemeal trial- Unwarranted and unjustified long adjournments - Witnesses coming on sub sequent dates for examination in-chief or for cross-examination modified versions over versions given by earlier witnesses - Discrepancies in evidence of panchas Alleged admission of accused regarding muddemal property doubtful - Package in which muddemal was produced before Court at commencement of trial was not opened on dates when material witnesses were examined - Non identification of muddemal property - Noncompliance of mandatory provisions of Section 309 Cr. P.C. - Conviction recorded is not legally sustainable.
Result: Appeal allowed.
JUDGMENT (ORAL)
Vaidya, J. - On 25th October, 1993, the Sessions Judge, South Goa, Margao, held the appellant guilty of an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and under his order dated 25.10.1993 he convicted him of that offence and sentenced him to suffer R.I. for 10 years and to pay a fine of Rs. 1 lakh, in default, to suffer further R.I. for 6 months.
2. Having felt aggrieved by this decision, the appellant has preferred this appeal contending that his conviction as well as the quantum of sentence awarded to him were not warranted by law and that the learned Sessions Judge had failed to appreciate the evidence in a manner that was according to law. It is contended further that though the evidence of the panchas and the Police Officers examined at the trial was discrepant and not worthy of safe reliance for several reasons, the same was relied upon by the learned sessions Judge. It was also contended that the learned Sessions Judge had ignored the fact that the muddemal articles were not properly identified before the Court nor was it conclusively established before the Court that whatever was allegedly seized from the appellant was indeed Brown Sugar, as was contended by the prosecution. The argument advanced before us substantially related to the non-identification of the muddemal property before the Court, though several contradictions in the evidence were sought to be relied upon as material contradictions on account of which the evidence deserved to be disbelieved. It is prayed on behalf of the appellant that this appeal be allowed and the conviction and the sentence awarded to the appellant be set aside.
3. Mr. Bhobe, the learned Public Prosecutor, submitted that the case in question was proved by independent witnesses and the credibility of the said witnesses was never impugned effectively despite prolonged cross-examination. He submitted that the evidence of the two Police Officers, namely, P.W. No. 1 Head Constable Kerkar and P.W. No. 5 Police Sub-Inspector Gaonkar was sufficiently corroborated by independent evidence of the panchas and that, therefore, the guilt was rightly brought home to the appellant. It was submitted that when the conviction for the offence was upheld by the learned Sessions Judge, he had no option but to award to the appellant the minimum prescribed sentence of 10 years R.I. and a fine of Rs. 1 lakh.
4. With the assistance of the learned Counsel arguing the matter before us, we have very carefully gone through the entire evidence on record. We think that the point regarding the non-identification of the muddemal property which was made out on behalf of the appellant really goes to the root of the case because we are convinced that the evidence on the point of identification adduced by the prosecution was not at all satisfactory.
5. Before adverting to that issue, we may point out, at the outset, the manner in which the trial proceeded against the present appellant. P.W. No. 1, Head Constable Kerkar, was examined on 23rd August, 1991 and his cross-examination was reserved on that day for reason which is not recorded on the deposition. His cross-examination was resumed on 3rd September, 1991 and was concluded on that day. The Roznama shows a note that the cross-examination was reserved because the Court time was over on 23rd August, 1991. Thus, there was no ground whatsoever to adjourn the case for further cross-examination to 3rd September, because, nothing is made clear as to why the deposition of the witness could not be recorded on day-to-day basis till it was completed. The second witness, namely, the Junior Scientific Officer in the Directorate of Food and Drugs Laboratory, Smt. Maria Caldeira, was examined in part on 16.9.1991 and was thereafter recalled on 18th August, 1993 for identification of muddemal. Her cross-examination was concluded on 18.8.1993.
The third witness, panchas Hegde, was examined on 4.10.1991, but his examin
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