THANA SINGH vs. CENTRAL BUREAU OF NARCOTICS

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

THANA SINGH — APPELLANT VERSUS CENTRAL BUREAU OF NARCOTICS — RESPONDENT O R D E R This order, and its accompanying directions, are an outcome of 1. the bail matter in Thana Singh Vs. Central Bureau of Narcotics listed before this bench, wherein an accused, who JUDGMENT had been languishing in prison for more than twelve years, awaiting the commencement of his trial for an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”), was consistently denied bail, even by the High Court. Significantly, the maximum punishment for the offence the accused was incarcerated for, is twenty years; hence, the undertrial had remained in detention 1 Page 1 for a period exceeding one-half of the maximum period of imprisonment. An express pronouncement of this Court in the case of Supreme Court Legal Aid Committee

1 Ors. , which held that “where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of rupees one lakh with two sureties for like amount”, finds constrained applicability in respect of cases under the NDPS Act, in light of Section 37 of the Act. Therefore, this Court in Achint Navinbhai Patel Vs. State of JUDGMENT 2 Gujarat & Anr. observed that “it has been repeatedly stressed that NDPS cases should be tried as early as possible because in such cases normally accused are not released on bail.” 1 (1994) 6 SCC 731 2 (2002) 10 SCC 529 2 Page 2 2. We are reminded of Justice Felix Frankfurter’s immortal words

3 California , coincidentally a case pertaining to narcotics,

3. The laxity with which we throw citizens into prison reflects our JUDGMENT lack of appreciation for the tribulations of incarceration; the callousness with which we leave them there reflects our lack of deference for humanity. It also reflects our imprudence when our prisons are bursting at their seams. For the prisoner himself, imprisonment for the purposes of trial is as ignoble as

3 Page 3 imprisonment on conviction for an offence, since the damning finger and opprobrious eyes of society draw no difference between the two. The plight of the undertrial seems to gain

quickly fades into the backdrop. Therefore, bearing in mind the aforesaid imperatives, after 4. granting the deserved bail in that case, we decided to take cognizance of status quo and gain a first-hand account about the state of trials in such like cases pending in all the states. Accordingly, vide order dated 30.08.2010, we issued notice to all states through their Chief Secretaries to file affidavits furnishing information of all cases under the NDPS Act where the undertrial has been incarcerated for a period exceeding five JUDGMENT years. In pursuance of the same, we received the valuable assistance of the Additional Solicitor General of India, Mr. P. P. Malhotra, learned amicus curiae , Ms. Anita Shenoy; Mr. R. K. Gauba, District and Sessions Judge (South), Saket, New Delhi; Registrar Generals of High Courts; Director General, Narcotics Control Bureau, Ministry of Home Affairs, senior-most Officer-in- 4 Page 4 Charge of Investigations and Prosecution for offences under the NDPS Act; representatives of the Directorate of Revenue Intelligence (DRI), Customs and Excise Departments and Police

directions are restricted only to the proceedings under the JUDGMENT NDPS Act. DIRECTIONS A.Adjournments 6. The lavishness with which adjournments are granted is not an ailment exclusive to narcotics trials; courts at every level suffer 5 Page 5 from this predicament. The institutionalization of generous dispensation of adjournments is exploited to prolong trials for varied considerations.

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7 Page 7 with the examination-in-chief or cross- examination of the witness, as the case may be Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.” [Emphasis supplied] The fourth proviso deserves immediate notification. In lieu of 8. the lacuna created by its conspicuous absence, which is interfering with the fundamental right of speedy trial [See: JUDGMENT Hussainara Khatoon and Ors. Vs. Home Secretary, State 4 of Bihar ], something this Court is duty- bound to protect and uphold, and till the statutory provisions are in place, we direct that no NDPS court would grant adjournments at the request of a party except where the circumstances are beyond the control of the party. This exception must be treated as an exception, 4 (1980) 1 SCC 81 8 Page 8 and must not be allowed to swallow the generic rule against grant of adjournments. Further, where the date for hearing has been fixed as per the convenience of the counsel, no

XXX XXX XXX (c) after sub- section (2) of section 317, the following sub- section had been inserted, namely:-- ‘(3) Notwithstanding anything contained in sub- section (1) or sub-section (2), the Judge may, if he thinks fit and for reasons to be 9 Page 9 recorded by him, proceed with inquiry or trial in the absence of the accused or his pleader and record the evidence of any witness subject to the right of the accused to recall the witness for cross- examination.” B.Examination of Witnesses Between harmonizing the rights and duties of the accused and 10. the victim, the witness is often forgotten. No legal system can render justice if it is not accompanied with a conducive environment that encourages and invites witnesses to give testimony. The web of antagonistic litigation with its entangled threads of investigation, cross-examination, dealings with the police etc., as it is, lacks the ability to attract witnesses to participate in a process of justice; it is baffling that nonetheless, JUDGMENT systems of examination that sprout more disincentives for a witness to take the stand are established. Often, conclusion of examination alone, keeping aside cross-examination of witnesses, takes more than a day. Yet, they are not examined on consecutive days, but on different dates spread out over months. This practice serves as a huge inconvenience to a witness since he is repeatedly required to incur expenditure on 10 Page 10 travel and logistics for appearance in hearings over a significant period of time. Besides, it often causes unnecessary repetition in terms of questioning and answering, and also places greater

these factors together cause lengthier examinations that compound the duration of trials. It would be prudent to return to the erstwhile method of holding 11. “session’s trials” i.e. conducting examination and cross- examination of a witness on consecutive days over a block period of three to four days. This permits a witness to take the stand after making one-time arrangements for travel and accommodation, after which, he is liberated from his civil duties qua a particular case. Therefore, this Court directs the JUDGMENT concerned courts to adopt the method of “session’s trials” and assign block dates for examination of witnesses. 12. The Narcotics Control Board also pointed out that since operations for prevention of crimes related to narcotic drugs and substances demands coordination of several different agencies viz. Central Bureau of Narcotics (CBN), Narcotics 11 Page 11 Control Bureau (NCB), Department of Revenue Intelligence (DRI), Department of Custom and Central Excise, State Law Enforcement Agency, State Excise Agency to name a few,

becomes difficult. On the completion of investigation for instance, investigating officers return to their parent organizations and are thus, often unavailable as prosecution witnesses. In light of the recording of such official evidence, we direct the concerned courts to make most of Section 293 of the Code of Criminal Procedure, 1973 and save time by taking evidence from official witnesses in the form of affidavits. The relevant section reads as follows:-

(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report. 12 Page 12

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18 Page 18 19. The above mentioned authorities must ensure adequate employment of technical staff and provision of facilities and resources for the purposes of proper, smooth and efficient running of the facilities of Forensic Science Laboratories under them and the Laboratories should furnish their reports expeditiously to the concerned agencies. 20. The Directorate of Forensic Science Services, Ministry of Home Affairs, must take special steps to ensure standardization of equipment across the various forensic laboratories to prevent vacillating results and disallow a litigant an opportunity to challenge test results on that basis.

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testing and re- sampling. These applications add to delays as JUDGMENT they are often received at advanced stages of trials after significant elapse of time. NDPS courts seem to be permitting re-testing nonetheless by taking resort to either some High Court judgments [See: State of Kerala Vs. Deepak. P. 5 6 Shah ; Nihal Khan Vs. The State (Govt. of NCT Delhi ) ] or

20 Page 20 perhaps to Sections 79 and 80 of the NDPS Act which permit application of the Customs Act, 1962 and the Drugs and Cosmetics Act, 1940. While re-testing may be an important

imported from other legislations without its accompanying restrictions, however, is impermissible. Under the NDPS Act, re- testing and re-sampling is rampant at every stage of the trial contrary to other legislations which define a specific time-frame within which the right may be available. Besides, reverence must also be given to the wisdom of the Legislature when it expressly omits a provision, which otherwise appears as a standard one in other legislations. The Legislature, unlike for the NDPS Act, enacted Section 25(4) of the Drugs and JUDGMENT Cosmetics Act, 1940, Section 13(2) of the Prevention of Food Adulteration Act, 1954 and Rule 56 of the Central Excise Rules, 1944, permitting a time period of thirty, ten and twenty days respectively for filing an application for re- testing 24. Hence, it is imperative to define re-testing rights, if at all, as an amalgamation of the above- stated factors. Further, in light of 21 Page 21 Section 52A of the NDPS Act, which permits swift disposal of some hazardous substances, the time frame within which any application for re-testing may be permitted ought to be strictly

“52A. Disposal of seized narcotic drugs and psychotropic substances (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure herein- after specified. (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer- in- charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub- section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub- section (1) may JUDGMENT 22 Page 22

above, we direct that, after the completion of necessary tests by the concerned laboratories, results of the same must be furnished to all parties concerned with the matter. Any requests 23 Page 23 as to re-testing/re-sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted, in extremely exceptional circumstances, for cogent

such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/re-

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of Narcotics are appointed by the Ministry of Home Affairs after JUDGMENT scrutiny by the Ministry of Law and Justice, on the recommendation of the District and Sessions Judge concerned. We suggest that the procedure of appointment, placed before us, be brought in line with that generally followed for the appointment of public prosecutors, as mandated under Section 24 of the Code of Criminal Procedure, 1973. However, for the 25 Page 25 present, we direct that the District and Sessions Judge shall make recommendations for such appointments in consultation with the Administrative Judge/Portfolio Judge/Inspecting Judge,

Sessions Division. I. Other Recommendations. Delays are caused due to demands of compliance with Section 29. 207 of the Code of Criminal Procedure, 1973 which reads as follows:-

(i) the police report; (ii) the first information report recorded under section 154; (iii) the statements recorded under sub- section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173; (iv) the confessions and statements, if any, recorded under section 164; 26 Page 26

must also be provided in electronic form. However, this direction JUDGMENT must not be treated as a substitute for hard copies of the same which are indispensable for court proceedings. 30. We expect and hope that the aforesaid directions shall be complied with by the Central Government, State Governments and the Union Territories, as the case may be, expeditiously and in the spirit that these have been made. 27 Page 27 31. Before parting, we place on record our deep appreciation for the able assistance rendered to us by the learned Additional Solicitor General; amicus curiae ; Mr. Utkarsh Saxena, Law Clerk-cum-Research Assistant and all the officers who were requested to participate in the deliberations. 32. The matter stands closed. ……..…………………………………. (D.K. JAIN, J.) ……..…………………………………. (JAGDISH SINGH KHEHAR, J.) NEW DELHI, JANUARY 23, 2013. JUDGMENT 28 Page 28