State of Maharashtra Vs. Champalal
Punjaji Shah  INSC 139 (12 August 1981)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) SEN, A.P. (J) ISLAM, BAHARUL (J)
CITATION: 1981 AIR 1675 1982 SCR (1) 299 1981
SCC (3) 610 1981 SCALE (3)1161
CITATOR INFO :
R 1983 SC 361 (2,19) RF 1983 SC 465 (17) RF
1985 SC 231 (2) F 1987 SC 149 (9) RF 1992 SC1701 (32,36,53)
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 a mitigating circumstance in according
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
journeying back and forth between the court of first instance and the superior
Courts at frequent interlocutory stages, by filing applications to quash
investigations, complaints and charges on all imaginable grounds. Delay is a
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 a result of the delaying tactics of prosecuting agencies
an accused person may be seriously jeopardised in the conduct of his defence.
In such a situation it may be possible to infer infringement of the right to
life and liberty guaranteed by Article 21 of the Constitution. Denial of a
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 court is entitled to take into consideration
whether the defendant himself was responsible for a part of the delay. whether
he was prejudiced in the preparation of his defence by reason of the delay and
whether the delay was unintentionally caused by reason of overcrowding of the
Court's docket or under staffing of prosecutors and so forth. Though in India
the right of speedy trial is not an expressly guaranteed constitutional right
it is implicit in the right to fair trial which is a part of the right to life
and liberty guaranteed by Article of the Constitution. While a speedy trial is
an implied ingredient of a fair trial the converse is not necessarily true. A
delayed trial is not necessarily an unfair trial.
The question whether conviction should be
quashed on grounds of delayed trial depends upon the facts and circumstances of
a case. If it is shown to the 300 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 conviction would have to be set aside.
There would, on the contrary, be no justification to quash a conviction on the
ground of delayed trial unless it is shown that there are circumstances
entitling the court to raise a presumption that the accused had been
prejudiced. [304 B-C] In the instant case in a surprise raid on the house of
the respondent, Central Excise officers discovered a large quantity of gold
bars with foreign markings concealed in the false bottom of a steel almirah,
the keys of which were found with him.
On a charge for offences under section 120B
I.P.C. read with section 135 Customs Act and rule 126P(2)(ii) and (iv) of the
Defence of India Rules 1962, the Additional Chief Presidency Magistrate
convicted the respondent and variously sentenced him under 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 a conclusive nature and circumstances must
not be capable of a duality of explanations, the Court is not bound to accept
any exaggerated, capricious or ridiculous explanation which may suggest itself
to a highly imaginative mind. The three circumstances established in the
instant case were: (1) 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 a bunch of
eight keys which fitted the almirah and (3) recovery of a bunch of three keys
from his person, one of which fitted the lock hanging from the inside handle of
the door of the flat. 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 a 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 a 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 based on
circumstantial evidence and this is an appeal against acquittal and that this
Court is exercising extraordinary 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 C] The respondent being himself responsible for a 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 was
prejudiced in the conduct of his defence by reason of the delay. [307 E] Nor
again would the fact that there was a 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 jeopardised the
country s economy. It is impossible to take a casual or light view of 301 such
an offence. It is only where the offence is of a trivial nature as for example,
a simple assault or theft of a trilling amount that the Court might hesitate to
send the accused back to jail after a long lapse of time; but the nature of the
offence and the stakes involved in this case do not merit any sympathy being
shown to the respondent.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 126 of 1975.
Appeal by special leave from the judgment and
order dated the 19th/20th February, 1974 of the Bombay High Court in Criminal
Appeal No. 1549 of 1971.
O. P. Rana and R. N. Poddar for the
Ram Jethmalani and Miss Rani Jethmalani for
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 conveniently and comfortably do so, if he can but
afford the cost involved, 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 a court takes cognizance of a case requiring sanction
or consent to prosecute, the sanction or consent is questioned as improperly
accorded, so soon as a witness is examined or a 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 a known defence tactic.
With the passage of time, witnesses cease to
be available and memories cease to be fresh. Vanishing witnesses and fading
memories render the onus on the prosecution even more burdensome and make a welter
weight task a heavy weight one.
Sure, we do not mean to suggest that the
responsibility 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 302 agencies. We know of trials
which are over delayed because of the indifference and somnolence or the
deliberate inactivity of the prosecuting 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 a weak character and a conviction is not a 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 a well known
tactic in most conspiracy 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
Constitution. Denial of a speedy trial may with or without proof of something
more lead to an inevitable inference of prejudice and denial of justice. It is
prejudice to a man to be detained without trial. It is prejudiced to a man to
be denied a fair trial.
A fair trial implies a 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 a 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 a reasonable time or to release pending trial'.
We think that even under our Constitution,
though speedy trial is not specifically enumerated as a fundamental right, 303
it is implicit in the broad sweep and content of Article 21 as R interpreted by
this Court in Maneka Gandhi v. Union of India(1). We have held in that case
that Article 21 confers a fundamental right on every person not to be deprived
of his life or liberty except in accordance with the procedure prescribed by
law and it is not enough to constitute compliance with the requirement of that
Article that some semblance of a procedure should be prescribed by law, but
that the procedure should be 'reasonable, fair and just'. If a person is
deprived of his liberty under a 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 a
person of his liberty cannot be 'reasonable, fair or just' unless that
procedure ensures a speedy trial for determination of the guilt of such person.
No procedure which does not ensure a 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 a trial is unduly
delayed ? In the United States, where the right to a speedy trial is a
constitutionally guaranteed right, the denial of a speedy trial has been held
to entitle an accused person to the dismissal of the indictment or the vacation
of the sentence.
But in deciding the question whether there
has been a denial of the right to a speedy trial, the Court is entitled to take
into consideration whether the defendant himself was responsible for a part of
the delay and whether he was prejudiced 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(2) is an
instructive case on this point. As pointed out in the first Hussainara case,
(supra) the right to a speedy trial is not an expressly guaranteed
constitutional right in India but is implicit in the right 304 to a fair trial
which has been held to be part of the right to life and liberty guaranteed by
Art. 21 of the Constitution. While a speedy trial is an implied ingredient of a
fair trial, the converse is not necessarily true. A 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 a 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 a 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, Esplanade, Bombay,
with offences under S. 120B 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, 135(a) and (b) and (i) of the Customs Act and rule 126P (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 prosecution 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 a judgment
dated December 13, 1971 the learned Magistrate acquitted Mohan Lal, accused no.
3 but convicted accused no. 1, Champalal
Punjaji Shah under various heads of the charge and sentenced him to suffer
imprisonment 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 concurrently. 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
305 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 fiat no. 14 on the first floor of a
building known as Vidya Vihar on Tulsi Pipe Road, Dadar, Bombay. The flat had
two doors, one away from the staircase, locked from the outside and another
near the staircase and closed from inside. P.W. 1 pressed the calling bell and
the door was opened by Poonam Chand. Another person was sitting on a sofa
inside the room. He was accused no. 1. 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 a handle from which was hanging a 'Tiger' brass lock.
Besides the sofa there was a steel almirah. PW 1 asked accused no. 1 to open
the almirah. Accused no. 2 Poonam Chand then took out a bunch of keys from the
pocket of his trousers and opened the almirah. There were eight drawers 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. A
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. 1'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 a 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 a panchnama was prepared. During the course of the investigation it
was found that. the flat was taken on a 'leave and licence' basis by accused
no. 3. After the investigation was completed a complaint was filed for the
various offences mentioned by us at the outset.
The case of the respondent was that he had
purchased a 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 306 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 Jethmalani,
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 offence
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 (1) 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 a 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 a 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 a suggestion made to the prosecution
witnesses. We agree with the submission that circumstantial evidence must be of
a conclusive nature and circumstances must not be capable of a 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 a
highly imaginative mind. It is well to remember that the Evidence Act considers
a fact as "proved" when, after considering the matters before it, the
Court either believes it to exist, or considers its existence so probable that
a prudent mind ought under the circumstances of the particular case, to act
upon the supposition that it exists.
It is also 307 worthy of remembrance that a
Court may presume the existence of A 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 fancied
by the High Court was a wholly unreasonable explanation in the circumstances of
the case. Shri Jethmalani reminded us first that we were considering circumstantial
evidence, second we were dealing 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 hesitation to interfere will lead to a
miscarriage of justice.
Shri Jethmalani also urged that the trial of
the respondent was considerably delayed, that there was thus a violation of the
fundamental right to life and liberty guaranteed under Art. 21 of the
Constitution and that was a sufficient ground to entitle the accused to a
dismissal of the complaint against him. We have earlier discussed the relevant
principles which should guide us in such situations. In this case the accused
himself was responsible for a 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 since the
commission of the offence should be taken into account by us and we should
refuse to interfere with the order 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 three years on the
basis of the very acts complained of in this particular case. We are afraid we
are unable to agree with Shri Jethmalani. The offence is one which jeopardises
the economy of the country and it is impossible to take a casual or a light
view of the offence. It is true that where the offence is of a trivial nature
such as a simple assault or the theft of a 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
We therefore, set aside the judgment of the
High Court and restore that of the learned Additional Chief Presidency Magistrate,
8th Court, Esplanade, Bombay. The respondent will surrender forthwith. The gold
slabs will stand confiscated to the Central Government. The appeal is allowed.
P.B.R. Appeal allowed.