Arun Kumar Bhattacharya, J.
1. The hearing stems from twin applications under Section 482 Cr.P.C. being C.R.R. No. 1344/95 and C.R.R. No. 1673/95 filed by the petitioners Asraful Hoda and Kamal Kishore Chaddha respectively praying for quashing the proceeding of Case No. C-333/81 under Sections 135A, 132 and 135(1)(a) of the Customs Act, 1962, pending in the Court of learned Chief Judicial Magistrate, 24-Parganas (South), Alipore.
2. O.P. No. 1 filed a complaint in the Court of learned Chief Judicial Magistrate, 24-Parganas (South), Alipore, inter alia, alleging that one Kamal Kishore Chaddha (petitioner of C.R.R. No. 1673/95) in collusion with his associates Bijoy Kumar Mishra, partner of M/s. Crown Enterprise and Exporting Firm, Nand Kishore Agarwalla, Mangal Chand Bhandari, Asraful Hoda (petitioner of C.R.R. No. 1344/95), Aravinda Chaddha and others hatched up a conspiracy in the early part of 1980 to smuggle out huge quantity of snake skins from India through Road Line Customs Station Petrapole at Bangaon to Bangladesh and therefrom to European countries. After detection of smuggling of snake skins, the driver and khalasi of the truck who were trying to take away the said snake skins along with fresh fruits to Bangladesh, were apprehended by the Customs authorities, and a case being No. C-132/80 was filed in the Court of learned Sub-divisional Judicial Magistrate, Bangaon. Over the self-same matter, after completion of the investigation/enquiry, a complaint was filed first before the Court of learned Chief Metropolitan Magistrate, Calcutta and subsequently before the Court of learned Chief Judicial Magistrate, 24-Parganas (South), Alipore. On the prayer of O.P. No. 1 the accused persons were, however, discharged from the cases pending before the Court of learned Sub-divisional Judicial Magistrate, Bangaon and learned Chief Metropolitan Magistrate, Calcutta with a direction to appear before the Court of learned Chief Judicial Magistrate, 24-Parganas (South), Alipore.
3. Out of 37 witnesses the prosecution could examine only 13 witnesses before framing of charge, and the prosecution evidence was closed by the learned Chief Judicial Magistrate, 24-Parganas (South), Alipore vide order dated 22.9.92, and charge under the aforesaid provisions of the Customs Act was framed against the petitioner and others on 15.5.95.
4. At the relevant point of time snake skin was not a restricted commodity for export, and pursuant to the order placed by accused Bijoy Kumar Mishra, the petitioner Asraful Hoda supplied the same to the said accused without knowledge that it would be exported to Bangladesh under the cover of fruits and vegetables. Though the said petitioner Asraful Hoda appeared on 14.8.80, it took 15 years to examine only 13 witnesses without any cause.
5. The petitioner Kamal Kishore Chaddha has been implicated in this case on the basis of confessional statements of co-accused persons which cannot be the sole basis for conviction.
6. Being dissatisfied with the continuance of the above criminal proceeding the aforesaid two petitioners have come up before this Court.
7. Mr. Roy, learned Counsel for the petitioner Asraful Hoda, assailed the impugned proceeding on three-fold grounds viz., (i) checkered keelback snake (xenochrophis piscatar) and dhaman or rat snake (plyas mucosus) were inserted in entries 8 and 9 of Schedule II of the Wild Life (Protection) Act, 1972 by notification dated 24.11.86 issued by the Ministry of Environment and Forests (Department of Environment, Forests and Wild Life) and on the date of alleged interception of the truck on 16.7.80 and physical examination on 17.7.80 those were not restricted items; (ii) procurement of the article in or about 1980 from the local market and selling it to another was not an offence and (iii) inordinate delay in examining 13 prosecution witnesses before charge over a period of 15 years is a flagrant violation of the fundamental rights of speedy trial enshrined in Article 21 of the Constitution. In support of the said third contention Mr. Roy relied upon the cases of Gopal Mukherjee v. State reported in 1991 C.Cr.LR (Cal) 323, Phool Chand v. State of Rajasthan reported in 1994 Cr.LJ 243 (SC), B. B. Gupta v. State of West Bengal reported in 1995 C.Cr.LR (Cal) 122 and Babul Kar v. State of West Bengal reported in 2005(3) CLT 556 (HC).
8. Mr. Mukherjee, learned Counsel for the petitioner Kamal Kishore Chaddha, relying upon the cases of A.R. Antulay v. R.S. Nayak reported in : 1992CriLJ2717 , B.P. Singh v. State of Bihar reported in 1994 Cr. L J 242 (SC), Santosh De v. Archana Guha reported in : 1994CriLJ1975 , A.N. Dutta v. State of West Bengal reported in 1992(2) CLT 295 (SC), Bhajan Singh v. Union of India reported in 1994(1) CHN 123, R. Agarwalla v. State of West Bengal reported in 1993(1) CLT 319 (HC), B.K. Sarkar v. State reported in 1994(1) CLT 414 (HC), Suresh Prasad Shaw v. State of West Bengal reported in 1994(1) CHN 450 challenged the proceeding on the common ground of abnormal delay as above and under the provision of Section 245(3) Cr.P.C., as amended by the West Bengal Amendment Act XXIV of 1988. Mr. Mukherjee further contended that the only evidence against his client is confessional statements of co-accused which cannot be the basis for conviction and in support of it he placed reliance upon the cases of Bhuboni Sahu v. King reported in , Haricharan Kurmi v. State of Bihar reported in : 1964CriLJ344 , Hussain Umar v. Dalipsinghji reported in : 1970CriLJ9 , Dagdu v. State of Maharashtra reported in : 1977CriLJ1206 , C.C. Desai v. State of Gujarat reported in : 1992CriLJ2757 and Superintendent of Customs v. B.K. Patel reported in 1993 Supp. (1) SCC 475. Mr. Mukherjee on drawing Court's attention to Entry 05.15 which deals with 'dead animals' and, Chapter 41 of the Imports (Control) Order, 1955 which deals with 'Raw hides and skins', next contended that had export of snake skin been banned at the relevant time the same would have found place in the said Chapter 41.
9. Mr. Ashim Roy, learned Counsel for the Customs authorities, on the other hand, on referring to Entry 0.16 i.e. 'other live animals' in Schedule I of Chapter I of the Imports (Control) Order, 1955 and Entry 5.15 of Chapter IV i.e., 'dead animals' contended that snake skins is covered under the said chapter, and under the Export Trade Control Order (No. 1/77-ETC dated 24.3.77) vide Schedule I Part A issued under Section 3 of the Imports and Exports (Control) Act, 1947, as amended, read with Section 11 of the Customs Act, 1962 exportation of all forms of wild life, dead or alive, or part thereof, or produce thereof, is completely banned, and so Wilf Life (Protection) Act has no connection with the said Act. Mr. Roy submitted that there is no limitation in respect of the above economic offences under the Economic Offences (Inapplicability of Limitation) Act, 1974. Relying upon the Constitutional Bench decision in P. R. Eao v. State of Karnataka reported in : 2002CriLJ2547 , Mr. Roy contended that the question of delay has to be determined having regard to the totality of circumstances of an individual case, the test being whether the delay is such that it can be called oppressive or unwarranted, and since in the present case delay was due to the petitioners and other accused persons, the question of quashing the proceeding on that ground does not arise. As regards applicability of the provisions of Section 245(3) Cr.P.C. as amended by West Bengal Amendment Act, 1988, Mr. Roy submitted that on the same ground as above the petitioners are not entitled to any relief.
10. Quashing of proceeding to prevent abuse of the process of the Court or otherwise to secure the ends of justice may be done where: (1) it appears that there is a legal bar against the institution or continuance of criminal proceeding in respect of the offence alleged e.g. absence of requisite sanction, or (2) the allegations in the FIR or the complaint even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged, or (3) the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In this connection, reference may be made to the case of R.P. Kapur v. State of Punjab, reported in : 1960CriLJ1239 and State of Haryana v. Bhajan Lal, reported in : 1992CriLJ527 . In State of Kerala v. O.C. Kuttan reported in 1999 SCC(Cri) 304, it was observed:
Having said so, the Court gave a note of caution to the effect that the power of quashing the criminal proceedings should be exercised very sparingly with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. It is too well-settled that the First Information Report is only an initiation to move the machinery and to investigate into a cognizable offence and, therefore, while exercising the power and deciding whether the investigation itself should be quashed, utmost care should be taken by the Court and at that stage, it is not possible for the Court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. In the case of State of U.P. v. O.P. Sharma a three-Judge Bench of this Court indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 or under Articles 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course. The same view was reiterated by yet another three-Judge Bench of this Court in the case of Rashmi Kumar v. Mahesh Kumar Bhada where this Court sounded a word of caution and stated that such power should be sparingly and cautiously exercised only when the Court is of the opinion that otherwise there will be gross miscarriage of justice. The Court had also observed that social stability and order is required to be regulated by proceeding against the offender as it is an offence against society as a whole.
11. The offences said to have been committed by the petitioners and other accused persons are under Sections 132/135A/135(1)(a) of the Customs Act, 1962. Clause 3 of the Exports (Control) Order, 1977 issued under Section 3 of the Imports and Exports (Control) Act, 1947 vide Notification Export Trade Control (No. 1/77-ETC) dated 24.03.77, which relates to 'Restrictions on export of certain goods', provides that 'save as otherwise provided in this order, no person shall export any goods of the description sepcified in Schedule I, except under and in accordance with a licence granted by the Central Government or by an officer specified in Schedule II'. Schedule I Part - 'A' deals with the items, export of which is not normally allowed, and Clause 1 thereof speaks of the items under the heading Wild Life (dead or alive or part thereof or produce therefrom), and snakes of all varieties has been mentioned in item No. 15 under Sub-clause (b) Reptiles-Ambhibia. The said entries of the Import (Control) Order, 1955 so referred to by the Id. counsel for the petitioner and Customs authorities have no manner of application in the present case. Sub-section (1) of Section 11 of the Customs Act empowers the Central Government to prohibit export or import of goods for the purposes mentioned in Sub-section (2) of the said Section 11. By virtue of Section 3(2) of the Imports and Exports (Control) Act, the goods prohibited by Section 3(1) shall also be deemed to have been prohibited under Section 11 of the Customs Act. So, whether checkered keelback snake (xenochrophis piscatar) and dhaman or rat snake (plyas mucosus) were inserted in the Schedule of Wild Life (Protection) Act only in 1986 or the said items do not find place in Chapter 41 of the Act is quite immaterial. Accordingly, in view of the said specific provision, the above contention of the learned Counsel for the petitioners does not at all stand.
12. As regards delay, the documents filed revealed that on the basis of complaint filed, cognizance was taken and summons under Sections 132/135A/135(1)(a) of the Customs Act, 1962 was issued against nine accused persons including the present two petitioners on 16.7.81. By 20.12.84 all the accused persons barring accused No. 8, Aravinda Chaddha entered appearance, and after several steps when the said accused Aravinda Chaddha could not be arrested nor there was any execution report, the case was ultimately filed against him for the present on 20.12.84 pending execution report of WA and WPA. The prayers of petitioner Asraful Hoda and prosecution for return of the seized snake skins and permission for sale of the same respectively and the prayers of petitioner Kamal Kishore Chaddha and accused No. 2 Bijoy Kumar Mishra for return of the seized passports were disposed of by 17.4.85. Examination of witnesses which started on 25.4.85 ended on 29.11.90. But in between the period various petitions were filed by a number of accused persons including the present two petitioners, accused Bijoy Kumar Mishra and one/ two others praying for various reliefs e.g., permission to go abroad, 'no objection' certificate for renewal etc. Though witnesses were present, the case was adjourned on a number of occasions due to absence of the accused persons as the question of identification was involved. On 4.10.91 accused No. 5 Hanumanmal Chouraria alone filed an application under Section 245(3) Cr.PC praying for discharge and due to anomaly in regard to the figure of seizure of snake skins, the learned Court below fixed 16.1.92 for fresh hearing. Due to various reasons the hearing was adjourned and ultimately the matter was further heard on 19.8.92 and the prayer for discharge was rejected by order dated 16.8.92. Even on the date of framing charge a few accused persons including petitioner Kamal Kishore Chaddha despite previous orders sought to be represented under Section 205 or 317 Cr. PC and ultimately on 8.7.93 warrant was issued against six absentee accused persons including the petitioner Kamal Kishore Chaddha. Accused No. 2 Bijoy Kumar Mishra surrendered on 12.7.93, accused No. 4 Nand Kishore Agarwalla surrendered on 27.7.93. After several reminders for E.R. of WA and WPA against petitioner Kamal Kishore Chaddha fresh WPA was ordered to be issued against him on 10.3.94 with a request to the Commissioner of Police, Bombay for execution of the same. Accused No. 1 Kamal Kishore Chaddha surrendered on 5.10.94 and was released on bail. Even thereafter, some accused persons including the petitioner Kamal Kishore Chaddha did not appear in person and were represented under Section 317 Cr. PC. Hearing on charge took place on 05.4.95 followed by framing of charge against the acused persons on 15.5.95. On 31.7.95 cross-examination of PWs. was deferred to 21.9.95 when on the prayer of petitioner Kamal Kishore Chaddha and in view of this Court's order further proceeding of the case was stayed.
13. A glance to the above will reveal that it took about 31/2 years for disposal of the process of appearance of the accused persons after issue of summons. Even when the case was posted for consideration of charge some of the accused persons still sought to be represented under Section 205 or 317 Cr.P.C., as the case may be, being totally oblivious that question of identification was involved, and as such, the Court was compelled to issue WA against the petitioner Kamal Kishore Chaddha, and much time was taken to secure his presence. Considering the totality of the picture it appears that the main chunk of the responsibility for the delay is attributable to the lapses on the part of the accused persons. The question of delay, as was held in the Constitutional Bench decision in B.R. Rao (supra), has to be decided by the Court having regard to the totality of the circumstances of an individual case, the test being whether the delay is such that it can be called oppressive or unwarranted; if so, it would be violative of Article 21 of the Constitution and as such the trial of proceedings would be liable to be terminated. As was held in the five-Judges Bench decision in A.R. Antulay (supra), in-many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays too cannot be treated as unjustifiable--broadly speaking. Of course, if it is a minor offence--not being an economic offence--and the delay is too long, not caused by the accused, different considerations may arise. Each case must be left to be decided on its own facts having regard to the principles enunciated. Out of the four kinds of delay which are to be totally ignored in giving effect to the plea of denial of speedy trial, three are (i) delay caused by the accused himself not merely by seeking adjournments but also by legal devices which the prosecutor has to counter; (ii) delay caused by orders, whether induced by the accused or not, of the Court, necessitating appeals or revisions or other appropriate actions or proceedings and (iii) delay caused by legitimate actions of the prosecutor e.g., getting a key witness who is kept out of the way or otherwise avoids process or appearance or tracing a key document or securing evidence from abroad. So, in the case on hand, when the delay was due to the default on the part of the accused persons, they cannot be permitted to take advantage of their own fault and consequently the question of quashing the proceeding on that ground is out of the way.
14. As regards Section 245(3) Cr. PC, as amended by the West Bengal Act XXIV of 1988, such question, as it transpires, was agitated by the accused persons at the time of hearing on charge which was rejected by the learned Court below on 15.5.95, and none moved against the said order in higher forum. Nevertheless, the question of discharge under Sub-section (3) of Section 245 may crop up only if all the evidences referred to in Section 244 are not produced by the prosecution within four years from the date of appearance of the accused persons. Section 244 or for that matter Section 245 speaks of evidence before charge. The law has not prescribed, notwithstanding the import of the necessity of speedy trial emanating from Article 21 any specific period for conclusion of the trial after framing of charge and that has been left to the domain of general consideration, depending upon the facts and circumstances of each case coming within the sweep of Article 21 so far speedy trial is concerned. Once charge has been framed against an accused, as in the present case, the question of discharge under Section 245 thereafter will not arise. The Magistrate may frame charge in appropriate cases even before the completion of all the evidence referred to in Section 244, because Section 246(1) clearly mandates that charge may be framed even 'at any previous stage of the case'. In this connection, the case the Suresh Prasad Shaw (supra) may be referred to. Sub-section (3) of Section 245 confers certain discretionary powers upon the Magistrate not to discharge if the prosecution satisfies the Magistrate that upon the evidence already produced and for specific reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused. So, the contention of Mr. Mukherjee that the Magistrate shall have to discharge the accused under Section 245(3) Cr.PC if all the evidences referred to in Section 244 are not produced within a period of four years from the date of appearance of the accused, is not acceptable. Nevertheless, as the accused persons including the present petitioners were responsible for the delay, and in view of the discussion made above, the question of discharge of the petitioner does not arise at all.
15. In regard to the above contention of Mr. Mukherjee relating to implication of petitioner Kamal Kishore Chaddha solely on the basis of confessional statements of co-accused persons, from the order dated 15.5.95 it appears that there was oral as also documentary evidence against the accused persons. That apart, this is a matter for trial which cannot be expected to be decided by this Court by converting itself into Trial Court and declare the said petitioner innocent and quash the proceeding.
16. Accordingly, in the light of the above discussion, there being no merit in the above two applications, the same be dismissed.
17. Interim orders, if any, stand vacated.
18. Let a copy of this order sent down at once to the learned Court below with a direction to dispose of the proceeding as expeditiously as possible preferably within a period of six months from the date of communication of the order.
19. Urgent xerox certified copy of the order, if applied for, be supplied to the parties with utmost expedition.