Court on its own Motion vs State of JandK

M.M. Kumar, C.J.—This public interest litigation has emerged while hearing Criminal Acquittal Appeal No. D-107/2010. In the order

dated 14.02.2013, we have noted various features of NDPS cases and has observed in the aforesaid order as under:-

Almost everyday acquittal appeals are filed by the State against many orders passed by the trial Courts and it is revealed that on account of non

production of material witnesses' prosecution has failed. Another common feature discernible from the order passed by the trial Court is that the

case property has not been produced. We asked the learned State counsel to disclose as to whether there is any mechanism for fixing the

responsibility of Investigating Agency, Prosecuting Agency and other person associated with the prosecution of the challan before the trial court.

There is no satisfactory reply. We have been informed by the learned State counsel that the rate of conviction particularly in NDPS cases is very

low which may 10% to 12%. This raises serious question with regard to the method used for disposing of the case properly. For example in the

present appeal 400 grams of Charas was claimed to have been recovered on the spot and then on visiting the house another 01Kg of Charas was

recovered. We are not aware whether any effective steps have been taken for disposal of such contraband.

On account of the fear that such contraband might be recycled and illegally sold, we direct the Home Department to disclose.

i) The data will regard to challans in all NDPS cases which have been filed and the rate of success in prosecuting such cases:

ii) If the rate of success is low like 10% to 12% whether ant study has been undertaken to plug the loopholes in prosecution of such cases:

iii) Whether any mechanism for fixing the responsibility on the Investigating Agency or Prosecuting Agency is in place:

iv) Whether any steps have been taken to dispose of the case properly like contraband.

A comprehensive report answering the aforesaid questions and other related issues shall be filed by the Department of Home a week before the

date fixed.

The registry is directed to register this as a PIL as Courts on its Own Motion v. State of J&K through the Secretary Department of Home,

Jammu and the Director General of Police, J&K, Jammu.

Notice be issued for 14.03.2013.

A copy of this order be furnished to Mrs. Hakim, learned State counsel.

In the order dated 25.09.2013 we requested Mr. Sunil Sethi, learned Senior Counsel to assist the Court, who filed suggestions on 07.11.2013. It

has come on record that the conviction rate in NDPS cases is as low as 10% to 12% and in a large number of cases the trial ends up in acquittal of

the accused on account of lardy investigation which leads to the impression that it has either been done deliberately or there is lack of investigation

skill. We have noticed in the order dated 19.12.2013 that the tools of investigation appears to be archaic and those who are at the helm of affairs

are not well trained. The suggestions made by the learned Amicus were furnished to the learned State counsel who assured that a Committee

would be constituted to study the NDPS case and to find out the reasons for tardy investigation of NDPS cases. Eventually the inspector General

of Police, (Crime), J&K, was appointed as Chairman of the Committee constituted vide Order No. 1257 of 2013 dated 07.05.2013. After

collecting dated from all the Districts concerning the NDPS cases and analyzing the same a report was filed by the Inspector General of Police,

(Crime), in pursuance of the directions issued on 14.02.2013. It is revealed that in the year 2008, 138 cases were sent for trial and there were

1151 cases pending in respect of the previous years. In the year 2008, conviction was returned only in 7 and rest of 74 cases ended up in

acquittal. The case of conviction in the year 2008 was 8.64%. Likewise in the year 2009 it was 6.20%. It would be appropriate to set out the

tabulated information given in the report which is as under:-

Accordingly, a committee of officers headed by Inspector General of Police, (Crime), J&K with members like Deputy Inspector General of

Police Crime, Deputy Director Prosecution Crime and Superintendent of Police Crime Jammu/Srinagar was constituted in order to devise a

mechanism and to improve the rate of low conviction by plugging the loopholes in the prosecution/investigation of NDPS cases.

In the status report filed on 19.04.2014 a number of issues have been raised including the Standards of Prosecution for Investigation and

Prosecution of crime under the NDPS Act. Mr. Gagan Basotra, learned Sr. AAG, states that the study has been forwarded to the Police Head

Quarters, however, all the conclusion reached by the Committee shall be examined by the Director General of Police and then it should be

forwarded to the Department of Home and Department Law and Justice so that the conclusion reached by the Committee might be put into action.

Accordingly, we direct that within next three weeks the Director General of Police, J&K, shall examine and analyze the report submitted by the

Committee of officers and shall forward the same to the Department of Home and Department of Law and Justice of J&K Government who, in

turn shall take a decision on the aforesaid suggestions within two weeks thereafter.

There is another aspect of the matter. Hon'ble the Supreme Court in the case of Thana Singh Vs. Central Bureau of Narcotics, has taken

cognizance of slow peddling of cases concerning NDPS to which the State of Jammu and Kashmir is a party. By invoking the powers under

Article 141 of the Constitution of India their Lordships have laid down the law under the caption, ""Adjournments, Examination of witnesses,

Workload, Narcotics Labs, Personnel, Re-testing provisions, Monitoring and Public Prosecutors"" along with other recommendations. It is

pertinent to notice that adjournment regime has to be brought to a stand still by virtue of directions issued in Thana Singh's case (supra). Likewise,

guidelines are available with regard to examination of witnesses. These directions can be usefully followed by the Courts dealing with the NDPS

cases. Therefore, The Register General is directed to circulate a copy of the judgment in Thana Singh's case to all the Principal District & Sessions

Judges for information of all concerned.

In para 15 there is a specific direction given in respect of State of Jammu and Kashmir after noticing that the pendency of cases over 5 years is

high that Special Courts which deal exclusively with offences of NDPS are required to be established. The direction does not seem to have been

complied with. Accordingly the Chief Secretary, J&K. The Department of Home and Department of Law and Justice are directed to comply with

the directions and submit a compliance report before the next date of hearing.

In respect of the Narcotics Labs it has been stated that in the State of Jammu and Kashmir there is only one State Forensic Science Laboratory

and one Regional Forensic Science Laboratory. In para 19 of the Judgment in Thana Singh's case it has been emphasized that a qualitative and

quantitative overhaul of these laboratories is necessary for improving the present state of affairs and directions have been issued in para 19(2).

Mr. Sethi, learned Amicus, during the course of arguments has pointed out that the samples sent to the laboratories in Jammu and Kashmir

sometimes takes 1= years and 2 years. Therefore strict view is required to be taken in accordance with the directions issued in para 19(2) in the

case of Thana Singh's case (Supra) along with employment of technical and scientific staff sufficient to coup with the NDPS samples. It would be

appropriate to set out the directions issued in the aforesaid para 19(2), 20, 21, 22 and 23, which are as under:-

19.2. Analogous directions are issued to the states. 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 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.

The above mentioned authorities 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.

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

We have also been apprised of the following vacancies at three CFSLs, namely Chandigarh, Kolkata and Hyderabad.

shortage of staff is bound to hamper with the smooth functioning of these laboratories, and hence, we direct the Directorate of Forensic Science

Services, Ministry of Home Affairs to address the same on an urgent basis.

Further, steps must be taken by the concerned departments to improve the quality and expertise of the technical staff, equipment and testing

laboratories.

There are then directions issued with regard to re-testing and after referring to the provisions of Section 32-A of the NDPS Act, the Hon'ble

Supreme Court has concluded in para 27 as under:-

Therefore, keeping in mind the array of factors discussed above, we direct that, after the completion of necessary tests by the concerned

laboratories, results of the same must be furnished to all parties concerned with the matter. Any requests as to re-testing/re-sampling shall not be

entertained under the NDPS Act as a matter of course. There may, however, be permitted, in extremely exceptional circumstances, for cogent

reasons to be recorded by the Presiding Judge. 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.

Another important aspect highlighted in para 28 and 29 pertaining to monitoring agency and appointment of one Pairvi Officer or other such

officer for each Court who shall report the day's proceedings to the Nodal Officer appointed for that Court.

A significant direction has been issued with regard to Public Prosecutors under the caption. ""Public Prosecutors"" for conducting the NDPS

cases. It would be appropriate to read the direction contained in para 30 which is set out below in extenso:-

Public prosecutors play the most important role in the administration of justice. Their quality is thus of profound importance to the speed and

outcome of trials. We have been informed that Special Public Prosecutors for the Central Bureau of Narcotics are appointed by the Ministry of

Home Affairs after scrutiny by the Ministry of Law and Justice, on the recommendation of the District and Sessions Judge concerned. We suggest

that the procedure of appointment, placed before us, be brought in line with that generally followed for the appointment of public prosecutors, as

mandated under Section 24 of the Code of Criminal Procedure, 1973. However, for the present, we direct that the District and Sessions Judge

shall make recommendations for such appointments in consultation with the Administrative Judge/Portfolio Judge/Inspecting Judge, incharge of

looking after the administration of the Sessions Division concerned.

As the State of Jammu and Kashmir is a party to the proceedings before Hon'ble the Supreme Court in Thana Singh's case (supra), we direct

that the order passed by Hon'ble the Supreme Court shall be complied with in letter and spirit as directed in para of 32. The compliance report by

the Chief Secretary, J&K Government, Department of Home and Department of Law and Justice shall be filed before the next date of hearing with

a copy in advance to the learned Amicus Shri Sunil Sethi.

If the directions are not complied with, the Secretary Home Department and Secretary Law and Justice Department shall remain present in

person on the next date of hearing. List on 01.09.2014.