Wednesday, October 1, 2014

The Pre-Trial Stages Finally Happen

January-May, 2012

Seeing as my case seemed to be stalled before it even started, I decided to investigate whether there was an alternative way to get this matter resolved.  Many locals told me that there should be a way that I could get it settled out of court, although it could cost me upwards of $10,000!  I met one local guy who was a driver for a government official.  He told me that the best way for me to get the case dropped was to approach the judge directly or alternatively have my lawyers push to have it resolved within a couple of court dates.  I didn’t like the idea of trying to stalk the judge, waiting outside the courtroom at the end of the day to catch him going home.  I felt it could do more harm than good.  As for pressing my lawyers, every time I saw them I would ask them how we could expedite the case but I would always run into a stone wall.  They did say that we could raise the issue in a high court but there were many cases much older than mine so they inferred “What’s your problem?  You just started.”

Before my court date on January 16th, 2012 I visited the UK Consulate which was also in the Goan capital Panjim with the main purpose of putting faces to the people I had been talking to on the phone.  None of the staff at the consulate are UK nationals, they’re all Goans.  In my mind, this doesn’t allow for proper representation from the British government and I didn’t have the impression that they were 100% on my side.  I spoke to one man for 20 minutes and he said it was typical for charge sheets to take 6 months (mine took 9½ months) and he has seen 4-5 cases that took 2 years to be resolved.  He mentioned that some British Nationals have snuck out of India illegally and that they would be able to get a new passport but likely shouldn’t ever return to India. 

Afterwards I headed to court and once again nothing happened.  I was standing just 4-5 feet behind my lawyer but couldn’t hear why it was delayed but later I found out it was due to a lack of court time.  No wonder, this Sessions court is playing the roles of two courts.  I did hear the judge ask the public prosecutor what was the quantity of charas in my case and the advocate responded “210” but the judge misheard and thought she’d heard 10 grams (which is what I had) and balked at it.  She looked like she was going to throw the case out right there and then, but then the prosecutor corrected the judge.  Damn that Sachin (the policeman who lied and said I had 20 times more than I really did).

During the time I had been waiting in Goa, I had numerous tourists say something to the effect of “Why don’t you cross the land border into Nepal and say you lost your passport?  It’s a pretty porous border with no computerized systems.”  I would reply “Have you ever illegally crossed a border while being a suspected drug felon?  I didn’t think so.”  I did have one Indian guy say yes, that he had.  He was caught in Thailand and escaped into Laos but he said it was a scary experience and he was looking over his shoulders for years afterwards, even back in India.  He did not recommend the same course of action. 
Since I have dual citizenship I was still in possession of my Canadian passport which was useless without a visa.  I was even denied renting a scooter for a day for not having a visa in the passport...c’mon, it’s still a passport!  A few foreigners suggested that I mail my passport back to Canada, have a friend get a visa put on it and mail it back, then I’d just have to add an entry stamp on the visa.  Sure okay, now we’re in to committing forgery too.  No, I think I’ll wait it out.  My crime was petty in my eyes and I didn’t want to make it into something much larger. 

After a couple more court dates of inaction I decided to stop by the lawyers’ office to see if I could get some straight answers about what was going on, or more like what wasn’t going on.  I was there about an hour, first talking to Caroline and then Peter.  It was somewhat informative but also confusing.  Peter's very intelligent but sometimes hard to understand, not just from his quick talking Indian accent but sometimes I don't always follow his train of thought or the legalese.  I asked him many times to clarify and also had to tell him to let me finish my point a few times as he kept interrupting me.  Additionally he seemed a bit aggravated at times but too bad, I’m the paying customer.  I asked him and Caroline afterwards to put himself in my shoes in that I had 1000 rupees worth of charas and it had already cost me two lakhs (200,000 rupees or $4000) and 14 months of time but they replied (independently) that hardly any of their clients say "Oh yeah, that was my stuff...all of it."  So they have to just go by what's in the charge sheet, find the holes in the police's report and get the client free that way.  I felt that I had built a good rapport with them by this point but they didn’t seem interested in getting to know me and how I felt about being in this situation or whether I was truly guilty or not.

Caroline suggested that we could send a registered petition to the high court to ask for the case to be expedited, perhaps stating issues like I am running out of money or need to get back to Canada to work.  As previously mentioned, I wrote a letter to the high court back in July but just got a one sentence response that I should refer the matter to the concerned court/office.  Caroline's suggestion was different in that if the lawyers made it a registered petition that the court had to decide on the matter (whereas my letter was responded to by a registrar and the judge probably didn't hear about it).  This registered petition would cost 25,000 rupees ($500), not a small figure and Peter weighed in later saying that I had to consider that if the high court rejected the permission, it could be money wasted.  Yes I had been stuck in Goa for 14 months but there were others not out on bail whose cases were a higher priority.  The UK Consulate told me that two years is a common timeframe for a case to take.  Mine was extraordinarily slow to start but I guess there are other foreigners who have been waiting even longer.  However, Caroline did have a case where the client's mom was very ill and his case was expedited and was finished in six months (yup, that's considered fast). 

This messed up business of the NDPS court in Mapsa, where my case should be tried, not functioning was delaying many cases.  The lawyers weren’t happy as they were having to drive to Panjim (half an hour away) everyday for court and half the time there wasn’t enough court time for any progress in many cases.  Peter explained that he could possibly get the courts reversed and everything functioning as it’s supposed to be if he researched for precedents in other places, within India and outside, to get the order reversed that has caused the NDPS court to be dead in the water.  However, of course he's a busy guy whose time is valuable so he'd need to be paid for it (yes, you're probably thinking "money sucking lawyers").  He suggested that I meet with other foreigners in my situation and we pool our money together.  If he received 1 lakh ($2000), he'd put in the appropriate amount of work into it.  If it was 5-6 lakhs, then he’d put in more effort and even look at the law systems of other countries.  I asked how I could find these other foreigners in the same predicament as me.  Would I have to go and hang out in the courtroom every day in hopes of meeting them?  No, the firm could tell me when certain clients have court dates, but I would still have to go to court to meet them.  I thought briefly about this idea but soon dismissed it.  I was sceptical about chucking more money on the fire, how would I convince others?

At the next court date I was pleased to see Peter show up.  His rapport with Judge Nutan was incredible.  I had seen her be quite curt with other advocates but with him she was immediately smiling and almost giggling like a young school girl despite being in her 50s.  They almost seemed to be like past lovers.  Once again, even though I was standing just behind my lawyers in the accused box I could not hear what was being said (all of these lawyers must have super hearing) but it turns out that the Arguments Before Charge stage was over and the last pre-trial stage called the Framing of the Charge would and did happen on March 1st where I simply pled not guilty to the charges.  Now it was time for the first witness.


Three weeks later I returned for the first witness, the chemical analyst from the Food & Drug Administration who had tested the charas.  This made sense as if what the police claimed I was in possession of wasn’t hash; well there would be no point in going on.  This was to be my first taste of one of the biggest flaws I see in the Indian judicial system.  The witness did not show up.  Witnesses are not required by law to testify so the absentee rate is astonishing.  I was rescheduled for the following month and again a no show.  One more month, still she didn’t come.  How can this be?  She’s a government employee working in an office just two kilometres away from the courthouse.  A third attempt on May the 5th but still no witness and the next court date wasn’t until July 31st, so I decided to apply for travel permission to head back north to Himachal Pradesh again.  I might as well avoid most of the monsoon.

No comments:

Post a Comment