SRINAGAR: The Special Judge, NDPS Cases, Jammu, has warned the Director General (Prosecution) and Director (Prosecution) of contempt proceedings after the court was left virtually non-functional due to the absence of a prosecutor, with around 80 matters listed for hearing and 12 prosecution witnesses present.
The court passed the directions on Thursday in a case registered by the Anti-Narcotics Task Force (ANTF), Jammu, against S.K. Shafi and another accused under Sections 8, 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act.
The accused have been incarcerated since June 23, 2023.
The court noted that the prosecution’s witness, ASI Gurdeep Singh, had travelled from Srinagar to appear for his deposition, but there was no prosecutor available in court. The accused, meanwhile, were produced virtually from District Jail, Amphalla, Jammu.
According to the order, around 80 criminal matters were listed before the court on Thursday. When the cases were taken up, the court was informed by a police constable attached to the prosecution that Special Public Prosecutor Sunil Sharma had proceeded on four days’ leave and that the department had made no alternative arrangement.
The reason cited for the failure to arrange a substitute prosecutor was an alleged incapacity of the Director General (Prosecution) to assign charge to another prosecutor, following a Home Department communication that had reportedly curtailed his powers.
The court, however, rejected the interpretation of the Home Department communication.
The Deputy Director of Prosecution, Jammu, Rajesh Gill, appeared before the court and produced a July 22 communication issued by the Home Department, followed by an order issued by the Director General (Prosecution) on July 23 concerning the powers of the prosecution authorities.
After examining the two communications, the court observed that the office of the Director General (Prosecution) had given an “out-of-context interpretation” to the Home Department communication and that it did not curtail the authority to make a temporary arrangement during a prosecutor’s leave.
The court described the situation as a “knee-jerk reaction” to the Home Department communication.
“I am not interested to know the reason of failure, but it is totally unacceptable,” the court said, observing that the State or UT is a party in every case before it and is required to be represented by a prosecutor under the Bharatiya Nagarik Suraksha Sanhita (BNSS).
The court said it was “virtually non-functional” merely because one public prosecutor had proceeded on leave and the prosecution department was confused about its authority to make an alternative arrangement.
The court also highlighted the impact of the administrative lapse on people awaiting judicial proceedings.
“There are people who are incarcerated in Jail waiting desperately for proceedings in their trial,” the court observed, adding that others approach the court seeking immediate relief in cases involving exigencies.
It said miscellaneous matters requiring the prosecutor to be heard before orders could be passed could not be kept hostage to “administrative whataboutery” or the dispute between the Prosecution Department and Home Department over the allocation of powers.
The court pointed out that 12 prosecution witnesses were present on Thursday but would “ironically go unexamined” because of the unavailability of the prosecutor.
The Special Judge further observed that if the leave of the Special Public Prosecutor required approval from the Home Department, the Director General or Director (Prosecution) should have obtained such clearance. However, the court said it did not agree with that position after examining the language of the July 22 Home Department communication, which dealt with “Transfer, Posting & Appointment” of prosecutors.
The court directed the Director General (Prosecution) and Director (Prosecution), who had sanctioned Sharma’s leave, to ensure that an alternative arrangement was made and a prosecutor was available in court on Friday to conduct the prosecution.
Failure to comply, the court warned, would result in contempt of court proceedings against the officials for impeding judicial proceedings and thwarting the daily functioning of the court through acts of omission and commission.
The court directed that a copy of the order be sent to the concerned authorities, including the Director General (Prosecution), Director (Prosecution) and Deputy Director of Prosecution, Jammu, for necessary compliance.
The NDPS case has been listed for August 7.
