STATE OF MAHARASHTRA versus CHAMPALAL PUNJAJI SHAH

STATE OF MAHARASHTRA

CHAMPALAL PUNJAJI SHAH

August 12, 1981

(0. CHINNAPPA REDDY, A.P. SEN AND BAHARUL ISLAM, JJ.J

Customs Act, section 135-Gold bars with foreign markings discovered in the house of accused-Trial delayed for many years by action of accused-Delay-Whether mitigating circumstance in according sentence.

Delayed trial-Whether violative of fundamental right under Article 21 of Constitution-Principles to be taken into consideration in considering delayed trials.

Under the present system of criminal justice an accused person resolutely minded to delay the day of reckoning, may quite conveniently and comfortably do so, if he can but afford the cost involved, by journ~ying back and forth between the court of first instance and the superior Courts at frequent interlocu· tory stages, by filing applications to quash investigations, complaints and charges on all imaginable grounds. Delay is known defence tactic.

All this is not to say that the responsibility for delaying criminal trials should always be laid at the door of the rich and the reluctant accused. Delays caused by tardiness, indifference and somnolence or the deliberate inactivity of prosecuting agencies are not uncommon or unknown. As result of the delaying tactics of prosecuting agencies an accused person may be seriously jeopardised in the conduct of his defence. In such situation it may be possible to infer infringement of the right to life and liberty guaranteed by Article 21 of the Constitution. Denial of speedy trial may lead to an inference of prejudice and denial of justice.

Hussainara Khatoon v. State of Bihar, [1979] 3 SCR 169, referred to.

In deciding whether there has been denial of the right to speedy trial the 1court is entitled to take into consideration whether the defendant himself was responsible for part of the delay. whether he was prejudiced in the pre-~arati~n of his defence by reason of the delay and whether the delay was un-1ntent1onally caused by reason of overcrowding of the Court's docket or under. ~taffing of prosecutors and so forth. Though in India the right of speedy trial 1s .not ~n ex~res~ly guaranteed c?nstitutional right it is implicit in the right to fau tnal which ts part of the right to life and liberty guaranteed 1· I 21 th ft Wh" Y rice o ons '.u ion. Ile speedy trial is an implied ingredient of fair trial the converse is not necessarily true. delayed trial is not ·1 fair trial. necessan y an un~

. The question whether conviction should be quashed on grounds of de1 ed tnal depends upon the facts and circumstances of case If "t · ay • 1 iss owntothe

satisfaction of the Court that the accused had been prejudiced in the conduct of his defence and thus had been denied adequate opportunity to defend himself the conviccion would have to be set aside. There would, on the contrary, be no justification to quash conviction on the ground of delayed trial unless it is shown that there are circumstances entitling the court to raise presumption that the accused had b~en prejudiced. [304 B-C]

In the instant case in surprise raid on the house of the respondent, Central Excise officers discovered large quantity of gold bars with foreign markings conceal~d in th~ false batto:n of steel almirah, the keys of which were found with him.

On charge for offences under section 120B I.P.C. read with section 135 Castoms Act and rule 126P(2)(ii) and (iv) of the Defence of India Rules 1962, the Additional Chief Presideacy Magistrate convicted the respondent and vari-ously sentenced him und.;:r different counts with imprisonment and fine. On appeal the High Court acquitted him.

HELD : Although it is settled law that circumstantial evidence must be of conclusive nature and circumstances n1ust not be · capable of duality of explanations, the Court is not bound to accept any exaggerated, capricious or ridiculous explanation which may suggest itself to highly imaginative mind. The three circumst1nces established in the instant case were: (l) presence of the respondent in the flat at the time of the raid by Central Excise Officers and recovery of gold slabs with foreign markings from the steel almirah: (2) recovery from his person of bun;;h of eight keys which fitted the almirah and (3) recovery ofa bunch of three keyc; from his pe1son, one of which fit~d the lock hanging from the inside handle of the door of the fiat. The explanation fancied by the High Court that the steel almirah in the flat was not shown to have been specially made and that the keys of similar almirah could well fit it and that perhaps was how the keys recovered from the respondent did fit the almirah in the flat, was wholly unreasonable explanation in the circumstances of the case. This was not the plea of the respondent, nor did he make any such suggestion to the prosecution witnesses. [306 FG & CD)

Notwithstanding the fact that the case is bised on circumstantial evidence and this is an appeal against acquittal and that this Court is exercising extra-ordinary but exceptional jurisdiction under Article 136 of the Constitution, interference with the judgment of the High Court in the instant case is imperative hesitation to do which would lead to miscarriage of justice. [307 CJ

The respondent being him,elf responsible for fair part of the delay, could not complain that there was violation of his fundamental right to life and liberty guaranteed under Article 21; nor has he shown how he wao:; prejudiced in the conduct of his defence by reason of the delay. [307 El

Nor again would the fact that there was long lapse of time since the commission of the offence or that the respondent was preventively detained for over two years be of any avail to him because the offence was one which jeopar-dised the country's economy. It is impossible to take casual or light view of

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such an offence. It is only where the offence is of trivial nature as for example, simple assualt or theft of trifling amount that the Court might hesitate to send the accused back to jail after long lapse of time; but the nature of the otfen'ce and the stakes involved in this case do not merit any sympathy being shown to the respondent. [307 G·H)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 126 of 1975.

Appeal by special leave from the judgment and 'order dated the !9th/20th February, 1974 of the Bombay High Court in.Criminal Appeal No. 1549 of 1971.

0. P. Rana and R. N. Poddar for the Appellant.

Ram Jet hmalani and;Miss Rani Jethmalani for the Respondent.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J. It is one of the sad and distressing features of our criminal justice system that an accused person, resolutely minded to delay the day of reckoning, may quite con-veniently and comfortably do so, if he can but afford the cost in· volved, by journeying back and forth, between the Court of first instance and the superior Courts, at frequent interlocutory stages. Applications abound to quash investigations, complaints and charges on all imaginable grounds, depending on the ingenuity of client and counsel. Not infrequently, as soon as court takes cognizance of case requiring sanction or consent to prosecute, the sanction or consent is questioned as improperly accorded, so soon as witness is examined or document produced, the evidence is challenged as illegally received and many of them are taken up to the High Court and some of them reach this Court too on the theory that 'it goes to the root of the matter'. There are always petitions alleging 'assuming the entire prosecution case to be true, no offence is made out'. And, inevitably proceedings are stayed and trials delayed. Delay is known defence tactic. With the passage of time, wit-nesses cease to be available and memories cease to be fresh. Vani-shing witnesses and fading memories render the onus on the prose-cution even more burdensome and make welter weight task heavy weight one. Sure, we do not mean to suggest that the res-ponsibility for delaying criminal trials is always to be laid at the door of the rich and the reluctant accused. We are not unmindful of the delays caused by the tardiness and tactics of the prosecuting

agencies. We know of trials which are overdelayed because of the indifference and somnolence or the deliberate inactivity of the prose-cuting agencies. Poverty-struck, dumb accused persons, too feeble to protest, languish in prisons for months and year on end awaiting trial because of the insensibility of the prosecuting agencies. The first Hussainara case (Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, Govt. of Bihar, Patna)(1) was one like that. Sometimes when the evidence is of weak character and conviction is not probable result, the prosecuting agencies adopt delaying tactics to keep the accused persons in incarceration as long as possible and to harass them. This is well known tactic in most conspi-racy cases. Again, an accused person may be seriously jeopardised in the conduct of his defence with the passage of time. Witnesses for the defence may become unavailable and their memories too may fade like those of the witnesses for the prosecution. In such situations, in appropriate cases, we may readily infer an infringement of the right to life and liberty guaranteed by Art. 21 of the Consti-tution. Denial of speedy trial may with or without proof of some-thing more lead to an inevitable inference of prejudice and denial of justice. It is prejudice to man to be detained without trial. It is prejudiced to man to be denied fair trial. fair trial implies speedy trial. In Hussainara Khatoon v. State of Bihar([1]), this Court said (at p. 179).

·'Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights. The Sixth Amendment to the Constitution provides that"

'In all criminal prosecutions, the accused shall enjoy the right to speedy and public trial'. So also Article 3 of the European Convention on Human Rights provides that :

'every one arrested or detained-shall be entitled to trial within reasonable time or to release pending trial'.

We think that even under our Constitution, though speedy trial is not specifically enumerated as fundmental right,

(I) [1979] 3 SCR. 169@ 179-180.

it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India('). We have held in that case that Article 21 confers fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law an.ct it is not enough to constitute com-pliance with the requirement of that Article that some semblance of procedure should be prescribed by law, but that the procedure should be 'reasonable, fair and just'. If person is deprived of his liberty under procedure which is not 'reasonable, fair and just', such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures speedy trial for determination of the guilt of such person. No procedure which does not ensure reasonable, quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 ".

What is the remedy if trial is unduly delayed ? In the United States, where the right to speedy trial is constitutionally guaranteed right, the denial of speedy trial has been held to en-title an accused person to the dismissal of the indictment or the vacation of the sentence. But in deciding the question whether there has been denial of the right to speedy trial, the Court is entitled to take into consideration whether the defendant himself was responsible for part of the delay and whether he was pre-judiced in the preparation of his defence by reason of the delay. The Court is also entitled to take into consideration whether the delay was unintentional, caused by over-crowding of the Court's docket or under-staffing of the Prosecutors. Strunk v. United States(') is an instructive case on this point. As pointed out in the first Hussainara case, (supra) the right to speedy trial is not an expressly guaranteed constitutional right in India but is implicit in the right

(I) [1978] 2 S.C.R. 621.

(2) 37 Law. Edn. 2nd Series, p, 56.

[1982) I s.c.R.

to fair trial which has been held to be part of the right to life and liberty guaranteed by Art. 21 of the Constitution. While speedy trial is an implied ingredient of fair trial, the converse is not necessarily true. delayed trial is not necessarily an unfair trial. The delay may be occasioned by the tactic or conduct of the accused himself. The delay may have caused no prejudice whatsoever to the accused. The question whether conviction should be quashed on the ground of delayed trial depends upon the facts and circumstances of the case. If the accused is found to have been prejudiced in the conduct of his defence and it could be said that the accused had thus been denied an adequate opportunity to defend himself, the conviction would certainly have to go. But if nothing is shown and there are no circumstances entitling the Court to raise presumption that the accused had been prejudiced there will be no justification to quash the conviction on the ground of delayed trial only. In the present case, in the beginning, three persons, Champalal Punjaji Shah, Poonam Chand and Mohan Lal were charged by the learned Additional Chief Presidency Magistrate 8th Court, Espla-nade, Bombay, with offences under S. l20B of the Indian Penal Code read with 135 of the Customs Act and rule 126P (2) (ii) and (iv) of the Defence of India Rules, 1962, l 35(a) and (b) and (i) of the Customs Act and rule l 26P (2) (ii) and rule 126P (2) (iv) of the Defence of India Rules. After some evidence had been led by the prosecution, the Public Prosecutor filed an application before the learned Magistrate requesting permission to withdraw from the prosecution against accused no. 2, Poonam Chand. Permission was granted and thereafter Poonam Chand was examined by the prose-cution as their witness. After some vicissitudes, necessitated by the respondent Champalal Punjaji Shah taking the matter to the higher courts, the trial finally concluded and by judgment dated Decem-ber 13, 1971 the learned Magistrate acquitted Mohan Lal, accused no. 3 but convicted accused no. I, Champalal Punjaji Shah under various heads of the charge and sentenced him to suffer imprison-ment for various terms ranging from two years to four years and to the payment of fine of Rs. 10,000 on each of different counts. The substantive sentence of imprisonment were directed to run con-currently. On appeal, the respondent was acquitted by the High Court. The State of Maharashtra has filed the present appeal· against the judgment of the High Court of Bombay after obtaining special leave from this Court under Art. 136 of the Constitution.

The brief facts of the case may now be stated. On May 30, 1965, on information received, P.W. 4, the Superintendent of

Central Excise, and P .W. 1, the Deputy Superintendent of Central Excise, accompanied by other Central Excise Officers and two panchas, Savalram Ganpat Bhagat (P.W. 7) and another went to flat no. 14 on the first floor of building known as Vidya Vihar on Tulsi Pipe Road, Dadar, Bombay. The flat had two doors, one away from the staircase, Jocked from the outside and another near the ftaircase and closed from inside. P.W. 1 pressed the calling bell and the door was opened by Poonam Chand. Another person was sitting on sofa inside the room. He was accused no. l. On seeing the Central Excise Officers accused no. 1 got up and went towards them. PW 1 told the accused that he was authorised to search the room and showed them the authorisation given to him by PW 4. The room was then searched. The rear side of the entrance door had handle from which was hanging 'Tiger' brass lock. Besides the sofa there was steel almirah. PW I asked accused no. I to open the almirah. Accused no. 2 Poonom Chand then took out bunch of keys from the pocket of his trousers and opened the almirah. There were eight drawer; in the steel almirah. These drawers contained some documents. It was noticed that the two bottom drawers had false bottoms. When the false bottoms were pulled out and searched, they were found to contain 11 jackets in each of which there were 100 slabs of gold weighing 10 tolas each. The total quantity of gold found secreted in the almirah was 11,000 tolas. The gold slabs had foreign markings on them. key was also found in that almirah and this key was found to fit the 'Tiger' lock which was hanging from the inner handle of the front door of the flat. Thereafter accused no. I's person was searched and some documents and two bunches of keys, one containing eight keys and the other containing three keys were found. The bunch of eight keys was found to fit the steel almirah from which the slabs of gold were recovered. Two of the three keys of the other bunch were obviously keys of scooter while the third key was found to fit the 'Tiger' lock which was on the handle of the back of the front door of the flat. Thereafter panchnama was prepared. During the course of the investigation it was found that the flat was taken on 'leave and licence' basis by accused no. 3. After the investigation was completed complaint was filed for the various offences men-tioned by us at the outset.

The case of the respondent was that he had purchased scooter from Mohan Lal and had gone to the flat of Mohan Lal that night for completing some negotiations. When he was coming from the building he was dragged into flat no. 14 by the Customs

Officers. He had nothing to do with the ·flat nor did he have any­thing to do with the gold found in the flat. The bunch of eight keys was not found on his person as alleged by the prosecution. The bunch of three keys was on his person but two out of the three keys were of the scooter purchase� by him from accused no. 3. Shri Jetbmalani, learned counsel for the respondent initially ·chall­enged the reception of the evidence of Poonam Chand into the record but desisted from doing so when we told him that he might confine himself to the rest of the evidence which appeared to us to be sufficient to hold the respondent guilty of the ofence with which, he was charged. The three outstanding circumstances established against the respondent and not disputed before us by the learned counsel for the respondent were (I) the presence of the respondent in the flat at the time of the raid by the Central Excise Officers and the recovery of the gold slabs of foreign origin from the steel almirah and (2) the recovery of the bunch of eight keys from his person which keys fitted the almirah from which the gold slabs were recovered and (3) the recovery of bunch of three keys from his person one of which fitted the lock which was hanging from the inside handle of the door of the flat. To any mind, unassailed by "some light, airy, unsubstantial doubt that may flit through the minds of any of us about almost anything at sometime or other(')" these circumstances should be sufficient to draw an inference of guilt. The High Court however thought that the steel almirah in the flat was not shown to have been specially made and that the keys of similar almirah could well fit it and that was perhaps how the keys recovered from the accused did fit the almirah in the flat. That of course was not the plea of the accused nor was it suggestion made to the prosecution witnesses. We agree with the submission that circumstantial evi­dence must be of conclusive nature and circumstances must not be capable of duality of explanations. It does not however mean that the Court is bound to accept any exaggerated, capricious or ridiculous explanation which may suggest itself to highly imagi· native mind. It is well to remember that the Evidence Act considers fact as "proved" when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that prudent mind ought under the circumstances of the particular case, to act upon the supposition that it exists. It is also

worthy of rememherance that Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. We are unhesitatingly of the view that the explanation fan-cied by the High Court was wholly unreasonable explanation in the circumstances of the case. Shri Jethmalani reminded us first that -we were considering circumstantial evidence, second we were deal-ing with an appeal against acquittal and third we were exercising our extraordinary but exceptional jurisdiction under Art. 136. Indebted as we are to him, for his forceful presentation of the reasons against interference,with the judgment of the High Court, we think that, interference in this case is imperative and '1esitation to interfere will lead to miscarriage of justice.Shri Jethmalani also urged that the trial of the respondent was considerably delayed, that there was thus violation of the fundamental right to life anci liberty guaranteed under Art. 21 of the Constitution and that was sufficient ground to entitle the accused to dismissal of the complaint against him. We h";.ve earlier dis-cussed the relevant principles which should guide us in such situ-ations. In this case the accused himself was responsible for fair part of the delay. He has also not been able to show cause how he was prejudiced in the conduct of his defence by reason of the delay, Shri Jethmalani then suggested that the long lapse of time slnce the commission of the offe!'ce should be taken into account by us and we should refuse to interfere with the brder of acquittal or at any rate we should not send the accused back to prison particularly in view of the fact that the accused was preventively detained for over two and nearly thre~ years on the basis of the very acts complained of in this particular' case. We are afraid we are unable to agree with Shri JethmalKni. The offence is one which jeopardises the economy of the country and it is impossible to take casual or light view of the offence. It is true that where the offence is of trivial nature such as simple assault' or the theft of trifling amount, we may hesitate to send an accused person back to jail as it would not be in the public interest or in the interest of anyone to do so. But the offences with which we are concerned and the stakes involved clearly show that sympathy in this case would be misplaced. We therefore, set aside the judgment of the High Court and restore that of the learned Additional Chief Presidency Magis-

P.B.R. Appeal allowed. )