Full Judgment
J.K. Mehra, J.
(1) I have heard the partics. In this case, the contraband gold weighing about two kilos was seized by the Customs authorities on 2.3.1977 and the complaint after investigation was filed almost five years later on 29.3.1982. First Public Witness . on pre-charge evidence was examined in July, 1982 and thereafter second Public Witness . was examined only in April, 1987. It is more than fifteen years now since the complaint was filed and the mailer is still.at a stage of pre-charge evidence. In this very case, departmental adjudication was undertaken and not only the adjudication was concluded, but even. appeal against the original order stood disposed of on 23.7.1983. The concluding para of the appellate order may be relevant for consideration of the present case. It is repro- duced hereunder:-
'In view of the above discussion, we do not find any force in his appeal. A penalty of Rs. 50,000.00 has been imposed upon him. This case is of 2.3.77 and the appellant has already suffered much during the last 7 years and in our opinion the said amount be reduced to some extent. Accordingly, we reduce the amount of penalty imposed upon him from Rs. 50,000.00 to Rs. ' 20,000.00 . With this modification, we reject his appeal. Now the point which remains is about the confiscation of the car. The two slabs of gold were re- covered there from when it was occupied by Kailash Chand. It has been contended that car was standing and as such, it cannot be confiscated. In our opinion, confiscation of the said car has been rightly done since it was used as a means of transport to carry the smuggled goods. The owner thereof has already been given opinion to redeem the same on payment of Rs. 20,000.00 as fine.'
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While disposing of the appeal, the Appellate Board considered the suffering of the appellant for 7 years as a mitigating factor and reduced the fine from Rs. 50,000.00 to Rs. 20,000.00 . The gold which was brought by the petitioner has since been confiscated. inspire of that, it has taken the department for more than 20 years of Court proceed- ings in the prosecution from 2.3.1997, the date on which contraband gold was seized and the pre-charge evidence is yet to be concluded.
MR.Satish Aggarwal has filed his reply, He has submitted that the delay is not wholly attributable to the department, but to some extent it is due to the petitioner also, while some of the delay resulted from the judicial proceedings on account of delay in passing the orders on various applications.
I find that in this very case, on 9.11.1994, Jaspal Singh, J. had given directions for expedition and I am constrained to note that from November, 1994 until April, 1997, only one more witness was examined by the department. I would have thought that delay in filing the complaint of 5 years itself conveyed a lot and reflects inexcusable in- action on the part of the department because from the departmental proceedings and the appeal, it is clear that the adjudication proceedings were over in 1981 and appeal had been filed in 1981. Inspire of that, it took the department time until March, 1982 to file the complaint. Nothing is pointed out as to what prevented the department to examine the entire, pre-charge evidence in July, 1982 when they examined one witness only. It appears that the object of delay is to perpetuate the agony of the petitioner by keeping the proceedings pending. Article 21 of the Constitution of India provides as under:-
'21.Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law.'
The speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in the aforesaid Article 21 of the Constitution of India. This right, i.e., the speedy trial is one of the dimensions and an integral and essential part of the fundamental right to life and liberty granted under the aforesaid Article.' Once the constitutional guarantee of speedy trial and the right to a fair, just and reasonable procedure under Article .21 has been followed, then the accused is entitled to an unconditional release and the charge leveled against him would fall to be a ground. In the present case, Code of Criminal Procedure, which is the law of procedure governing this trial, provides under Section 309 as under:-
'309.Power to postpone or adjourn proceedings
(1)In every inquire 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 same beyond the following day to be necessary for reasons to be recorded.
(2)If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit for, such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Proveded that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:
, (Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.)'
Looking to the fact that even the pre-charge evidence stags has pot yet been concluded, I have no doubt in my mind that the mandate of Article 21 of the Constitution of India has been violated by the department both in letter and spirit. Pendency for 20 years for pre-charge evidence, which is still not concluded, cannot lead to any other inference. The provisions of the said Section 309 of the Code of Criminal Procedure also provide for speedy trial and these also have been lost sight of in the present case. The observations of Hon'ble Supreme Court in the case of A.R. Antulay & Ors. Vs . R.S. Nayak & Ors., : 1992 CriLJ2717 , Hussainara Khatun Vs . State of Bihar, : 1979 CriLJ1036 and Ramanand Chaudhry Vs . State ofBihar, : 1994 CriLJ1221 may be adverted, to where in the cases of such in6rdiriate delay, the Hon'ble Supreme Court was pleased to quash the proceedings. I had also following the same principles of law, quashed the prosecution in the cases of S.N. Aggarwal v. Deputy Chief Controller of Imports and Exports (Cri.M.(M) No.3252/94) decided on 19th, May, 1995 and Virendra Singh Pawat v. Deputy Chief Controller of Imports and Exports (CLA), New Delhi through Cbi (Cri.M.(M) No.27775/94) decided on '24th November, 1995. Speedy trial is not only the right of the accused, as stated here in above, but is in the interest of the Society at large also. Speedy trial prevents any impairment of the ability of the accused to defend himself , on account of death, disappearance or non-availability of witnesses or otherwise apart from anxiety, expense and disturbance to the vocation and peace of mind of the accused, resulting from unduly prolonged trial.
Keeping in view the above discussion, I see no point in continuing the proceedings hereafter. 20 years of pendency in the criminal Court, 7 years of litigation before the department to my mind are sufficient harassment and enough pain and agony has already been suffered by the petitioner, which warrants that this agony should now be put and end to as such delay is unwarranted under the constitutional guarantee and the procedure established bylaw, referred to here in above. thereforee, the complaint as well as the proceedings emanating there from are hereby quashed and the petitioner/accused is acquitted.
This petition is disposed of in the above terms.