In Thana Singh vs. Central Bureau of Narcotics, Criminal Appeal No. 1640 of 2010, the Hon’ble Supreme Court observed as under:
“The laxity with which
we throw citizens into prison reflects our 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 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 focus only on a solicitous inquiry by this Court, and soon after,
quickly fades into the backdrop. [Para 3]
Observing
above the Hon’ble Supreme Court has laid down directions and guidelines as
the law declared under Article 141 of the Constitution of India in relation to
the proceedings under the NDPS Act.
A. Adjournments
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, 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 adjournment shall be granted without exception.
The Court observed:
The lavishness with which adjournments are granted is not an ailment
exclusive to narcotics trials; courts at every level suffer from this
predicament. The institutionalization of generous dispensation of adjournments
is exploited to prolong trials for varied considerations. Such a practice
deserves complete abolishment.
B. Examination of Witnesses
(i)
The concerned courts to adopt the method of “session’s trials” and assign block
dates for examination of witnesses.
“It would be prudent to
return to the erstwhile method of holding “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.”
(ii)
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
[officials/investigating officer from Central Bureau of Narcotics (CBN),
Narcotics Control Bureau (NCB), Department of Revenue Intelligence (DRI),
Department of Custom and Central Excise, State Law Enforcement Agency, State
Excise Agency etc.] in the form of affidavits.
“Between harmonizing the
rights and duties of the accused and 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, 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 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 reliance on one’s ever-fading memory, than necessary. All these
factors together cause lengthier examinations that compound the duration of
trials.” [Para 10]
C. Workload
The Court observed:
The courts are unduly overburdened, an outcome of the diverse
repertoire of cases they are expected to handle. We are informed by the
Narcotics Control Board that significant time of the NDPS Court is expended in
dealing with bail and other criminal matters. Besides, many states do not even
have the necessary NDPS courts to deal with the volume of NDPS cases.
In
view of the above following directions have been passed:
(i)
Each state, in consultation with the High Court, particularly the states
of Uttar Pradesh, West Bengal and Jammu & Kashmir (where the pendency of
cases over five years is stated to be high), is directed to establish
Special Courts which would deal exclusively with offences under the NDPS Act.
(ii)
The number of these courts must be proportionate to, and sufficient for,
handling the volume of pending cases in the State.
(iii)
Till exclusive courts for the purpose of disposing of NDPS cases under
the NDPS Act are established, these cases will be prioritized over all
other matters; after the setting up of the special courts for NDPS cases, only
after the clearance of matters under the NDPS Act will an NDPS court be permitted
to take up any other matter.
D. Narcotics Labs
The Court observed:
“Narcotics laboratories
at the national level identify drugs for abuse and their accompanying
substances in suspected samples, determine the purity and the possible origin
of illicit drugs, carry out drug-related research, particularly on new sources
of drugs liable to abuse, and, when required by the police or courts of law,
provide supportive expertise in drug trafficking cases. Their role in the
effective implementation of the mandate of the NDPS Act is indispensible which
is why every state or region must have proximate access to these laboratories
so that samples collected for the purposes of the Act may be sent on a timely
basis to them for scrutiny. These samples often form primary and clinching
evidence for both the prosecution and the defence, making their evaluation by
narcotics laboratories a crucial exercise.”
[Para 15]
The
Court has passed the following directions in respect of Narcotic Labs:
(i)
The Centre must ensure equal access to CFSL’s from different parts of the
country. The current four CFSL’s only cater to the needs of northern and
some areas of western and eastern parts of the country. Therefore, besides the
three in the pipeline, more CFSL’s must be established, especially to
cater to the needs of southern and eastern parts of the country.
(ii)
Several states do not possess any existing infrastructure to facilitate
analysis of samples and are hence, compelled to send them to laboratories in
other parts of the country for scrutiny. Therefore, each state is required
to establish state level and regional level forensic science laboratories.
However, the decision as to the numbers of such laboratories would depend on
the backlog of cases in the state.
(iii)
Authorities [FSL & CFSL) 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.
(iv)
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.
E. Personnel
(i) Directorate
of Forensic Science Services, Ministry of Home Affairs to address shortage of
staff. Shortage of staff is bound to hamper with the smooth functioning of
these laboratories
(ii)
Steps must be taken by the concerned departments to improve the quality and
expertise of the technical staff, equipment and testing laboratories.
F. Re-testing Provisions
(i) After
the completion of necessary tests by the concerned laboratories, results of the
same must be furnished to all parties concerned with the matter.
(ii)
Any requests 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 reasons to be recorded by the Presiding Judge.
(iii)
An application in such rare cases must be made within a period of fifteen days
of the receipt of the test report; no applications for re-testing/resampling
shall be entertained thereafter. However, in the absence of any compelling
circumstances, any form of retesting/re-sampling is strictly prohibited under
the NDPS Act.
G. Monitoring
Nodal
officers be appointed in all the departments dealing with the NDPS cases, for
monitoring the progress of investigation and trial. This nodal officer must
be equivalent or superior to the rank of Superintendent of Police, who shall
ensure that the trial is not delayed on account of non-supply of documents, non-availability
of the witnesses, or for any other reason.
H. Public Prosecutors
The
District and Sessions Judge shall make recommendations for such appointments in
consultation with the Administrative Judge/Portfolio Judge/Inspecting Judge, in-charge
of looking after the administration of the concerned Sessions Division.
I. Other Recommendations
Filing of the charge- sheet and supply of other
documents must also be provided in electronic form. However, this direction must not be treated as
a substitute for hard copies of the same, which are indispensable for court
proceedings. [see: Section 207 of the Code of Criminal Procedure, 1973]