Waiting for the Trial to Start

October-December, 2011

It was time for another trip outside of Goa, having spent the past three months through the monsoon season there.  I submitted yet another travel application to go to the southern state of Kerala with my friend Naomi who was returning from Israel for a month.  I paid the 5000 rupees ($100) on September 5th and went to court in Panjim on the morning of the 22nd.  With Naomi arriving in the afternoon and our plan to go to Kerala looming on October 2nd, I hoped all would go smoothly.  Namrata, one of the junior lawyers, was there to represent me.  Within 25 minutes of the opening of the session my matter came up but I couldn’t hear what the judge or prosecutor said.  After half an hour more of waiting, Namrata stepped outside and she told me that we were waiting on the investigating officer.  Twenty minutes later my matter was up again and I was beckoned to go to the accused box.  By the time I got there, it was over and I was motioned to sit down.  I couldn’t hear a thing as the judge and lawyers spoke so softly.  Outside the courtroom, Namrata told me that the matter was moved to “orders” in the afternoon session at 2:30pm but I didn’t have to be there.

Good, as I still needed to scooter over to Pernem for my monthly check-in.  I felt like I was getting all of my judicial duties out of the way just before Naomi arrived.  At the police station my favourite cop Sachin was there.  He was being super “buddy buddy” to me, reminding me of how he let me have a hot shower in his area of the police station when I was in the lockup, which happened to be the day that I later found out that his falsification of the evidence was printed in the newspaper.  He said that he had given the okay for my trip to Kerala, like he was doing me a big favour.  He also said that I shouldn’t worry about the case as I won’t be guilty as it was only a small amount...”grams” he said.  He claimed that he was my friend and that if I have any troubles in India that I should give him a call.  Yeah, sure buddy, will do.

After the trip to Kerala and after Naomi had returned to her busy life in Israel, I met with the senior lawyers, Peter and Caroline, to discuss their strategy with the case now that they have had time to study the charge sheet. 

Peter is the head of the firm and he’s quite a character with partially slicked back wavy salt and pepper hair and wearing glasses.  In his mid-60s, he’s just taken up playing guitar in the last few years.  He has an air of confidence about him but from what I’ve learned of him it’s a deserved one.  He’s considered the best in the area for narcotics cases and has quite a track record.  I have only sat down for discussions about my case two or three times so far and I was looking forward to what he had to say about my case.

At first Peter asked me to point out what I saw in the charge sheet that could win the case for me.  I began to point out all of the falsities of time, place and the fact I didn’t know these panch witnesses.  He responded that then the case becomes a “he said” “she said” and that‘s not a recipe for success as it becomes a contest between whoever the judge believes, me or the police and their fake witnesses.

Instead he began to point out inconsistencies, omissions or incorrect procedures in the way the police framed their case.  He found that the police officer that performed the supposed “weighing and packaging” was only a constable and he must be at least the rank of assistant inspector (a one star officer, one rank below Sachin who is a two star sub-inspector). 

There are three pages of the police station diary from around the time I was arrested.  Sachin’s handwriting is so terrible in it that it’s tough to decipher it.  Peter pointed out that the station diary does not mention the fact that the officer left the station with the weighing and sealing kit and that is a mandatory entry anytime the kit goes out.  He wanted to get the next pages in the diary which weren’t supplied as they don’t go far enough forward in time. 

One document in the charge sheet has a stamp of the Assistant Superintendant Officer and another one has a different one but it does not have the date written in, which he stated that it most definitely requires.  There was also a missing Property Seizure Report which should have been completed at the station afterwards to match the Property Seizure Memo which was supposed to be filled out at the scene.  It’s not until the Property Seizure Report is completed that I would have a case number however there is already a case number on the memo which should not be there.

Peter said that when it was realized that narcotics may be involved, I should have been offered a gazetted officer or magistrate to be present before being searched.  Peter thought this was a major flaw in the case.

The date when the evidence was taken by the chemical analyst to the forensics department in Panjim wasn’t until late in the afternoon on Dec. 9, two days after my arrest.  This seemed odd to Peter, it shouldn’t have taken so long so what was going on?

So Peter found 4-5 anomalies in the charge sheet, any of which he felt could possibly get me acquitted but together it was quite strong in my favour.  He told me that he felt that I had a 90% chance of being acquitted and almost 100% chance that I would not serve anytime in custody.  Not as good of numbers he told me way back last December where he claimed 99% chance of acquittal, but they were still pretty good odds.

At the end of the meeting he did reiterate the issue with the NDPS court not functioning.  He thought I might be lucky and have the two pre-trial stages, “Arguments Before Charge” & “Framing of the Charges”, completed in the Sessions Court in Panjim but said my case would not be heard there in a month of Sundays.  With no timeframe known on when the NDPS court problem would be fixed, it was looking like I could remain in India a long time.

On November 1^st my “Arguments Before Charge” (ABC) was to be heard in the morning session at the Sessions Court in Panjim.  One of the intermediate level lawyers from the firm, Salil, was there to represent me.  An hour into the session, all of the NDPS matters were presented.  There were two separate Nigerians charged with cocaine possession up before me.  My name and case number was called and I rose from my front row seat in the gallery and assumed my standing position in the accused box.  I strained to hear and understand the conversation between the judge and Salil.  Within a minute, I was told to step down from the box.  Okay wait, what just happened there?  That couldn’t have been the ABC...

Outside the courtroom Salil said that the judge had pointed out some problem with the “Vakalatnama”.  The Vakalatnama is a form that has my signature along with the lawyer’s to confirm that I agree to them representing me in court.  What?  I know I’ve signed that form in the past and we’ve been to court numerous times...how can this be a problem now?  Salil told me that my ABC was delayed until December 16^th!   Great, sure, what’s another 6 ½ weeks to wait?

I called Caroline and expressed my frustration and wanted to know why there was a problem with the Vakalatnama.  She said that there was no problem with the Vakalatnama and told me that the reason for the adjournment was recorded as “lack of court time” in the court’s daily record and that I should be relieved that I received a date in December as many cases were being pushed to January.  Yup, sure feeling pretty luck at this moment!

I returned to the court on December 16^th and not shockingly, nothing happened again!  This time the judge wasn’t there, she was in some other court.  This woman was running at least three courts so no wonder everything was moving so slowly.  My new date was set for January 16^th which I actually felt fortunate about as there were two other guys who received dates in mid February and mid March.  As I was leaving the courthouse I got a real glimpse of how monolithically slow the judicial system here is as I saw a guy sitting at a desk in the hallway sorting a massive stack of paperwork while wearing an industrial dust mask…the cases move so slowly that they actually become hazardous!