JUDGMENT
Sadhan Kumar Gupta, J.
1. This revisional application has been preferred under Section 397/401 read with Section 482 of the Cr. PC against the order dated 27.2.2007 passed by the learned Special Judge, NDPS Act, 6th Court at Barasat.
2. Case of the petitioner is that he along with other accused persons are facing trial in the NDPS case, as pending in the Court of the learned Additional Sessions Judge, 6th Court, Barasat.
3. The prosecution case is that on 6.8.2003 at 22.55 hours, on receiving telephonic information, police raided the hotel Gitanjali situated at Barasat and on search made on different rooms in the said hotel, 1.3 Kgs. of contraband heroin were recovered allegedly from the accused persons.
4. Case was investigated and after completion of investigation, chargesheet was submitted against the accused persons. Subsequently charge was framed against all the accused persons on 16.9.2005 and trial was started by way of recording of evidence of the witnesses. During trial as many as sixteen witnesses were examined on behalf of the prosecution and thereafter the accused persons were examined under Section 313 of the Cr. PC and date was fixed for argument. Actually the argument was heard on behalf of some of the accused persons and when the learned Advocate for the present accused/petitioner was to make his further submission regarding the case, at that time the learned Public Prosecutor-in-charge filed a petition before the learned Court below praying for amendment/ alternation of the charge, as already framed against the accused persons. Said petition was fixed for hearing. The accused persons raised objection to such prayer alleging that at the very initial stage it was the accused persons who suggested for amendment of the charge, but which was rejected. Thereafter the prosecution did not take any step and allowed the case to be continued by way of examining the prosecution witnesses. The petitioner has claimed that he is in custody for about four years and if at this stage the prosecution is again allowed to amend/alter the charge, then he will be highly prejudiced, as there will be further delay in disposal of the case although there is a direction from the Division Bench of this Court for expeditious disposal of the case without allowing any unnecessary adjournment to either of the side. According to the petitioner, if due to the defect in the charge the defence has acquired any benefit that cannot be snatched away from the defence in this way by filing a petition for amendment of the charge. In fact after the written argument was submitted, the Id. P.P.-in-charge realised the mistake in framing of the charge and in order to frustrate the advantage, which has already been acquired by the defence, this petition has been filed.
5. Learned Judge, after hearing both the sides, was pleased to allow the prayer of amendment of the charge. Being aggrieved and dissatisfied with the said order of the learned Judge, this revisional application has been preferred. According to the Id. Advocate for the petitioner it is not a fit case where the prayer for amendment of the charge should be allowed and the order, as passed by the learned Judge in this respect has certainly caused failure of justice and is liable to be set aside.
6. Learned Advocate for the State, on the other hand, submitted that there is nothing wrong in the order passed by the learned Judge. It is always open for the learned Judge to amend/alter the charge even before writing of the judgment, if it is expedient in the interest of justice.
7. There is no dispute that a case under the NDPS Act was started against the petitioner and others and that is pending before the learned Judge for disposal. It is also undisputed that the accused/petitioner is in custody for about four years. The order of the learned Judge further shows that long before the charge was framed and at that time it was the accused persons who actually pointed out the manner in which the charge should be framed and this suggestion has practically been adopted in the petition filed by the Id. P.P. -in-charge before the learned Trial Judge. There cannot be any dispute that under proper circumstance, a charge can always be altered/amended if it appears to be in the interest of justice. So far as the present case is concerned, it appears that on the basis of the charge, already framed, sixteen prosecution witnesses were examined and the accused persons were also examined under Section 313 of the Cr. PC and argument was going on before the learned Trial Judge. It has been contended by the petitioner that by not framing the charge separately, by showing separate recovery of the contraband articles from each of the accused persons, prosecution allowed the defect to be continued in respect of the charge already framed. From the evidence, as adduced by the prosecution witnesses, the accused persons by way of cross-examination got some answers in their favour in this respect. When all these things were pointed out by the learned Advocate for the accused persons at the time of argument, learned P.P-in-charge suddenly, in order to frustrate these advantages, which were acquired by the accused persons, filed this petition praying for amendment of the charge. Undoubtedly it is the settled position of law that charge can always be amended at any stage if it is expedient in the interest of justice. But so far as present case is concerned, it appears that prosecution was not at all serious in filing such petition at any appropriate time before the learned Judge. Instead, prosecution has proceeded to examine all these witnesses on the basis of this alleged defective charge and after the date was fixed for argument, prosecution preferred to file this petition. This type of attitude on the part of the prosecution cannot be supported. We may point out here that in the NDPS Act strict provisions have been made for violation of any of the sections and a person can be punished severely for any such violation. Due to the stringent provisions in the NDPS Act, it has been provided therein that the prosecution is to proceed in a meticulous way step by step and any deviation will entitle the accused to get advantage in bis favour. Some thing happened in this case. We must not forget that the accused/petitioner is in custody for about four years. If at this stage the prayer for amendment/ alteration of the charge is allowed, then there cannot be any doubt that it will certainly cause serious prejudice to the accused persons as because there will be further delay in disposal of the case as all the witnesses in that event, will have to be recalled for further examination and cross-examination. Considering this fact, as well as the other circumstances, as discussed above, I am of opinion that the learned Judge was not at all justified in allowing the prayer for amendment/ alteration of the charge. The order, as passed by the learned Judge in this respect, appears to be improper and against the spirit of justice and as such, same is liable to be set aside.
8. In the result, the revisional application is allowed on contest. The order date 27.2.2007, as passed Act, 6th Court, Barasat, is set aside. Learned Judge is directed to fix a date for hearing of the argument of the parties and thereafter to dispose of the case as expeditiously as possible keeping in mind the direction given by the Division Bench of this Court in this respect.
9. Send a copy of this judgment to the Court below at once for information and taking necessary action.
10. Xerox certified copy, if applied for, be handed over to the parties on urgent basis.