Union of India, represented by the Assistant Commissioner of Guwahati Custom Division, Nilomani Phukan Path, Christianbasti, Guwahati - 5

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1 1 THE GAUHATI HIGH COURT (The High Court of Assam : Nagaland: Mizoram and Arunachal Pradesh) Union of India, represented by the Assistant Commissioner of Guwahati Custom Division, Nilomani Phukan Path, Christianbasti, Guwahati - 5 I.A. 895/2016 in Crl. L.P. 89/2016 in Crl. Appeal Sl. No. -Versus- 1. Md. Sahabuddin Ahmed, S/O Md. Fajir Ali, Village Santipur, PO & PS Rangia, Dist.- Kamrup, Assam....Applicant 2. Shri Uttam Das, S/O Shri Haru Ch. Das, Village- Pub Sarania, Bye- Lane No. 7, PO- Silpukhuri, PS- Chandamari, Guwahati 3. Kamrup (M), Assam 3. Shri Madhurjya Kakati alias Maina Kakati, S/O Shri Arnab Kakati, North Sarania (Gandhi Basti), Near L.P. School, PO- Silphukuri, PS- Chandamari, Guwahati 3. Kamrup (M), Assam...Respondents

2 2 BEFORE THE HON BLE MR. JUSTICE PARAN KUMAR PHUKAN For the Applicant : Mr. S.C. Keyal, ASGI For the Respondent : Mr. M. Sarania, Advocate Date of hearing : Date of judgement : JUDGEMENT AND ORDER (ORAL) This condonation application under section 5 of the Limitation Act is filed by the petitioner, Union of India for the delayed approach in preferring the connected appeal before this High Court against the judgment of acquittal pronounced by the learned Sessions Judge No. 1, Kamrup (M) in Sessions Case No. 355(K)/2005 whereby the learned court acquitted the accused of the offence under section 21 (C) read with section 29 of the NDPS Act. 2. Admittedly the delay in preferring the appeal is 325 days. The applicant contended inter alia that the copy of the judgment dated was received and forwarded to the department in the month of January, The Assistant Commissioner of the department vide his letter dated informed the Deputy Commissioner, Guwahati Customs Division about the approval for filing of the appeal against the judgment and thereafter the Superintendent (Law) forwarded all the documents to its Senior Standing counsel for preparation of appeal along with necessary condonation application and for forwarding the same to the Superintendent (Law) for onward transmission for approval of the Commissioner, Customs Division on and since no communication was received from the Senior Standing counsel of the Department, the Superintendent (Law) again reminded the Senior Standing counsel for preparation of the appeal vide communication dated but no response was received from the Senior Standing Counsel.

3 3 3. It is also contended by the applicant that in the meantime the mandate of the Senior Standing counsel was over and the name of the Senior Standing counsel was not recommended for extension and as such the Senior Standing counsel was not authorised to continue as the Standing Counsel of the department. The Assistant Commissioner vide letter dated directed the Deputy Commissioner, Guwahati Customs Division to distribute the cases which were filed by the Senior Standing counsel and accordingly the cases were distributed amongst the remaining three Standing counsels of the department. 4. Thereafter the case records were handed over to the Junior Standing counsel for preparation of the appeal along with the condonation application and though the Standing counsel was requested vide letter dated for preparation of draft appeal at the earliest, however, on the said Junior Standing counsel returned back the file informing that she was unable to prefer the appeal due to her illness. 5. The department thereafter requested the Assistant Solicitor General, Gauhati High Court vide letter dated to prepare the appeal and condonation application and since all the documents were not forwarded to him he requested the Assistant Commissioner to furnish all the requested documents vide communication dated and on receipt of the documents in the month of November, 2015 the learned Addl. Solicitor General prepared the draft appeal and forwarded the same to the department for approval on which was in turn forwarded to the Commissioner, Customs at Shillong for further approval on and after obtaining his approval which was received on the appeal was preferred and consequently there was delay of 325 days in preferring the appeal. 6. It is contended by the applicant that the delay was not intentional but due to circumstances beyond the control of the applicant and there was no negligence or laches on his part. 7. Mr. S.C. Keyal, learned Assistant Solicitor General refers to the case of the State of Nagaland Vs. Lipok Ao and Ors. reported in 2005 (3) SCC 752 and also Executive Officer, Antiyur Town Panchayat Vs. G. Armugam

4 4 (dead) by legal heirs reported in 2015 (3) SCC 569 to project that the State is an impartial machinery working through their officers and they should not be treated as an independent litigant and their delay condonation application should be liberally construed. 8. Mr. Keyal also submits that the circumstances for which appeal could not be filed in time construe sufficient cause within the meaning of Section 5 of the Limitation Act, 1963 and as such, this Court may be pleased to condone the delay of 325 days in filing the connected appeal. He also contends that the circumstances beyond the control of the petitioner prevented them from preferring the appeal earlier and it took sufficient time to the authorities to discuss the matter at various levels which is an usual procedure followed in all state matters and considering this aspect a liberal approach may be taken and the delay may be condoned. He further contends that since the mandate of the learned Senior Standing counsel was over and he was not considered for renewal and the Junior counsel due to sickness could not prepare the appeal, the same could not be filed within the stipulated period. 9. In controversion, Mr. M. Sarania, learned counsel appearing for the respondents contends that due to failure of the Department to prefer the appeal in time, the respondents cannot be allowed to suffer. Although the judgment was delivered on and the copy of the same was received in January, 2015, the Assistant Commissioner admittedly forwarded the letter for approval for filing of the appeal only on , i.e. after 5 months and no reasonable explanation whatsoever has been given by the applicant for keeping the matter pending for 5 months. Moreover, the approval for filing the appeal was received on and it was forwarded to the counsel but till no action was initiated and on that day only a reminder was issued and no explanation was offered for inaction of the department for more than a month. Mr. Sarania, learned counsel appearing for the respondents strenuously contends that there are several counsels of the department working in the High Court and the appeal could have been preferred through the other counsels but that has not been done which clearly demonstrate laches on the part of the department and no explanation has also been provided regarding the delay in communicating with the junior counsel and the learned Junior Standing counsel also failed to inform

5 5 the department in time regarding his inability to prefer the appeal due to his illness which cannot be a ground for condonation of delay. It is also submitted that although the judgment was delivered on by the trial court and the mandate of the Senior Standing counsel expired on August, 2015 after about 9 months after passing of the judgment and no explanation has been offered for inaction of the department for 9 months before the mandate of the learned Senior Standing counsel expired. 10. One of the principles underlying the law of limitation is that a litigant must act diligently and must not sleep over its rights. While the liberal approach in the delay condonation application of the State can be an option, the question here is whether sufficient cause is shown for the delayed approach and whether the applicants were diligent in presenting the appeal. In the present case from the condonation application itself it is found that the matter was kept pending at different levels and inordinate delay was caused in forwarding the copy of the judgment to the Deputy Commissioner for approval. Inaction of the counsel also cannot be a ground to condone the delay in preferring the appeal. Failure of the Senior Standing Counsel to communicate with the department also cannot be a reasonable ground for condoning the delay. A well equipped office of the department is situated in Guwahati and it appears that it took more than 1 month in issuing the reminder to the Senior Standing counsel. 11. On an overall assessment it emerges that the department was sleeping over its rights for a long period and there is every reason to believe that they failed to act diligently in preferring the appeal. 12. In a recent decision rendered by this Court in I.A. (Civil) 1047/16 this Court observed as follows : 12. While the length of the delay may not be the key factor for entertainment of application under Section 5 of the Limitation Act, it is nevertheless important for the applicant to demonstrate that they were prevented by sufficient cause from approaching the Court in due time, despite due diligence. In the context of the explanations furnished by them even if we liberally construe them, it is apparent that due diligence could not be demonstrated by the applicants as they slept over the matter for nearly a year after the judgment was delivered on and the State machinery woke up only when they received the notices in the contempt

6 6 case. Even, thereafter, only to obtain legal opinion to file the Appeal, another 9 months and 3 days' time was taken and this, in our mind, cannot be accepted as sufficient explanation even with a liberal approach. 13. Even when the applicant is treated to be impersonal state machinery, it is important for the law to apply equally to all litigants and the liberal approach doctrine cannot be invoked to condone inordinate delay, when explanations are lacking and want of diligence is perceived. 13. In Post Master General and Anr., vs. Living Media India Limited and Anr., reported in AIR (2012) 3 SCC 563 the Supreme Court has observed that at this point in the case there was delay of 427 days in filing the appeal before the Supreme Court against the judgment of the High Court. The High Court after examining the other dates mentioned in the affidavit of the person incharge of the case to justify the delay found that there was delay at several stages with no explanation for the cause of delay. The Supreme Court also took serious note of the causal manner in which the Government Department are functioning in response to the law of Limitation and when dismissing the appeal on this ground of delay the Supreme Court made the following observations:-- The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government department. The law shelters everyone under the same light and should not be swirled for the benefit of a few. 14. The Supreme Court in another decision in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629 held as follows: That in cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for

7 7 condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest. 15. An identical view has been expressed by the Apex Court in the case of State of Uttar Pradesh through Executive Engineer an Anr., vs Amar Nath Yadav where there was delay of 481 days in filing the Special Leave Petition before the Court, the Court observed that the delay attributed to the moving file from one department/officer to the other cannot be said to be sufficient explanation for condoning such abnormal delay and consequently, the delay application was dismissed. 16. Admittedly in the instant case the judgment and order was passed on by the learned Addl. Sessions Judge and although the copy of the same was received in January, 2015 it took more than 5 months for the Assistant Commissioner for seeking approval for filing the appeal. In the application no particulars have been given for the inordinate delay in filing the appeal. It is discernible from the petition that communication by the departmental officials to the counsels were not made in time and no urgency was shown at any level for preferring the appeal within the stipulated period of limitation. 17. The applicant, in my considered view, failed to give any acceptable and cogent reason to condone the delay in filing the connected appeal before this Court and having regard to the decisions rendered by the Apex Court in various cases and the fact situation of the present case, I do not find sufficient reason to condone the delay of 325 days in preferring the connected appeal. 18. The Interlocutory Application is consequently dismissed and the Leave Application also stands dismissed on the same grounds. arup JUDGE

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