Gujarat High Court
Inayatkhan @ Ilyaskhan Bismillahkhan ... vs State Of Gujarat & on 12 February, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/18996/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 18996 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the
Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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INAYATKHAN @ ILYASKHAN BISMILLAHKHAN PATHAN....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR HASHIM QURESHI, ADVOCATE for the Applicant(s) No. 1
MR KT DAVE, ADVOCATE for the Respondent(s) No. 2
MR K.P. RAVAL, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date :12/02/2015
CAV JUDGMENT
This is an application for regular bail filed by an accused, who has been arrested in connection with a complaint lodged by the Intelligence Officer of the Narcotics Control Bureau, Ahmedabad, bearing F.No. NCB/AZU/Cr-03/2003, under Sections 8(c), 20(b)(ii) (c), read with Sections 29, 27(A) and 25 of the Narcotics Drugs and Psychotropic Substances Act, 1985 Page 1 of 22 R/CR.MA/18996/2014 CAV JUDGMENT (for short "the Narcotics Act"). The same has culminated in the NDPS Sessions Case No. 1/04, pending as on today in the Court of the learned Third Additional Sessions Judge, Nadiad.
2. The case of the Department may be summarized as under:-
2.1 A specific information was received on 15.7.2003 by one of the Officers of the Narcotics Control Bureau, AZU, Ahmedabad, that "A person named Anwar Amir Mirja Baig @ Raju who is an absconding offender and now a days is doing business of "Charas" at Balasinor. Currently, Anwar @ Raju along with one person named Illiyas Pathan have brought a big consignment of Charas from Kashmir in TATA Sumo vehicle having registration number GJ-2K-7281. Anwar @ Raju is going to deliver a part of this consignment of Charas to Ganibhai Mohammadbhai R/i Baroda at College Bus Stand, Sevalia Road, Balasinor on 15.7.2003 at around 4.00 P.M. Ganibhai is coming to take the delivery of Charas in white Maruti Car No. GJ-6-A-1400."
2.2 The said information was reduced in writing and was placed in a sealed cover bearing seal No.6 NCB.AZU. A team comprising of the Officers and other staff members of the NCB, Ahmedabad including the local Police was formed. Two persons were called and briefed about the information and were asked to act as the panch witnesses for the purpose of carrying out the personal search of the suspects.
2.3 A close vigil was kept near the College Bus Stand, Sevalia Road, Balasinor. At around 4 P.M., on 15.7.2003, two persons Page 2 of 22 R/CR.MA/18996/2014 CAV JUDGMENT came at the Bus Stand from the direction of Balasinor on a silver coloured Passion Motorcycle and waited there. After some time, a white coloured Maruti car was spotted coming from the direction of Baroda, bearing Registration No. GJ-6-A-
1400. The car came and stopped near the two persons who had come on the motorcycle and were standing at the bus stand. The driver of the car came out and shook hands with the driver of the motorcycle. The pillion rider handed over a bag to the driver of the motorcycle, who in turn handed over the bag to the driver of the car. The raiding team immediately rushed at the spot and were able to intercept all the three persons. The driver of the motorcycle introduced himself as Anwar Amir Mirja @ Raju and the other person disclosed his name as Hidayatkhan Pathan @ Raju. The driver of the Maruti car introduced himself as Ganibhai Mohammadbhai Shaikh, a resident of Baroda. On being asked about the contents of the bag, it was disclosed by Anwar Amir Mirja @ Raju and Ganibhai Mohammadbhai Shaikh that it contained "Charas". The necessary procedure of search and seizure was undertaken in accordance with the law. The contraband was seized and sealed in accordance with the provisions of the law. A sample was drawn from the packet containing the contraband and the same was tested positive for "charas" with the aid of the Field Drug Testing Kit, being a narcotic substance.
2.4 On further inquiry, Hidayatkhan Pathan disclosed that a vehicle i.e. a Tata Sumo had been parked at the residence of his brother Illiyas Pathan (the present applicant-accused), near the Taluka Panchayat Office, Balasinor, in which Anwar Amir Mirja @ Raju and Illiyas Pathan had brought the contraband charas from Kashmir. Thereafter, the members of the raiding party along with the panchas and the three persons caught at Page 3 of 22 R/CR.MA/18996/2014 CAV JUDGMENT the Bus Stand reached at the place described by Hidayatkhan Pathan. A white coloured Tata Sumo bearing Registration No. GJ2 K-7281 was found parked at that particular place. The car was not locked. Anwar Amir Mirja @ Raju disclosed that a cavity had been formed beneath the luggage carrier on the roof of the vehicle. Anwar Amir Mirja and Hidayatkhan Patan opened the luggage carrier and removed the same. On the roof of the vehicle, few screws were noticed and on opening the screws, the upper sheet was removed. On the sheet being removed, the cavity was noticed and thirteen packets were recovered from the cavity.
2.5 The three persons who were intercepted at the Bus Stand were issued summons under Section 67 of the NDPS Act. Their statements were recorded, wherein they disclosed the mode and the manner in which the consignment of Charas was brought from Kashmir by the applicant herein and Anwar Amir Murja @ Raju. Anwar Amir Mirja @ Raju , in his statement recorded under Section 67 of the NDPS Act stated that on the day, he along with the other two was intercepted, Illiyaskhan Pathan, the applicant herein, at around 3 to 4 P.M had taken out two packets of charas from the cavity of the Tata Sumo No. GK2-K 7281 and had instructed to deliver the same to Ganibhai, a resident of Baroda. The applicant herein instructed his brother Hidayatkhan @ Raju to assist Anwar in delivering the packet of charas to Ganibhai at the College Bus Stand, Sevalia Road, Balasinor.
2.6 All the three persons were thereafter, arrested and were remanded to judicial custody. A summons under Section 67 of the NDPS Act was also issued to the applicant herein, but he Page 4 of 22 R/CR.MA/18996/2014 CAV JUDGMENT failed to respond to the said summons and absconded. The three persons i.e. the co-accused were put to trial in the Sessions Case No. 1/04. All the three were held to be guilty of the offence under the NDPS Act.
2.7 Anwar Shaikh @ Raju who had brought the contraband along with the applicant herein was awarded death penalty, as in one another case No. NCB-CR-04/1991, he was found guilty by the Court and was sentenced to undergo ten years of imprisonment. He was ordered to be released on parole after his conviction and while on parole, he jumped the parole and absconded. He once again indulged in the same activity along with the present applicant. Since it was his second conviction, he was awarded death penalty. so far as the other two co- accused are concerned, they were sentenced to undergo imprisonment for a period of ten years with fine.
2.8 It appears from the materials on record that in the past, two cases were registered against the applicant herein, one being C.R No.I-93/04 and the other being C.R No. I-75/11, of the offence under Section 326 IPC, with the Balasinor Police Station. It also appears that the applicant herein remained absconding from 2003 onwards and abruptly, he was arrested on 27th May, 2014 by the local Police in connection with the two offence referred to above. After being arrested in the two offence referred to above, the NCB was informed about his arrest and thereafter, by a transfer warrant, the NCB took him in custody.
2.9 It appears that the summons was issued under Section 67 of the NDPS Act on 27.4.2014 and was served upon the Page 5 of 22 R/CR.MA/18996/2014 CAV JUDGMENT applicant herein. His statement under Section 67 was recorded, wherein he admitted about the ownership of the car containing a cavity, which was being made at the cost of Rs. 10,000/-. He also admitted that he used to keep charas and liquor in the cavity for the purpose of carrying it to a particular place for being delivered. He also admitted that it was within his knowledge that his brother and the two co-accused were arrested in connection with the seizure of 40 kgs. of charas. He also admitted that apprehending arrest by the Department, he fled away. He has also admitted that he used to visit Balasinor discretely for the purpose of meeting his family members. He has also admitted that he knew Anwar @ Raju i.e. the co-accused who had brought charas from Kashmir along with the applicant herein. Of course, he has not admitted that he had also gone to Kashmir along with Anwar to get charas.
2.10 The complaint against the applicant herein was lodged on 4th September, 2014 and the same has culminated in NDPS Sessions Case No.2 of 2014. The complaint against the applicant herein was filed under Section 36A(d)(iv) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (as amended).
2.11 The applicant herein, after his arrest, filed a bail application in the Court of the learned Sessions Judge, Kheda at Nadiad. The learned Third Additional Sessions Judge, Kheda, vide order dated 20th October, 2014, rejected the same. Being dissatisfied, the applicant has filed the present application seeking bail.
Page 6 of 22 R/CR.MA/18996/2014 CAV JUDGMENT3. Mr. Qureshi, the learned advocate appearing on behalf of the applicant vehemently submitted that his client was not absconding and was very much available all through out at Balasinor. He submitted that no summons under Section 67 of the NDPS Act in the year 2003 was served upon him. He submitted that his client was available all through out, but no steps were taken by the Department to arrest the applicant. He submitted that no warrant was issued for his arrest and no proceedings were initiated for declaring the applicant as a proclaimed absconder. In such circumstances, the stance of the Department that the applicant-accused was absconding for a period of almost 11 years is not tenable and should be ignored.
3.1. Mr. Qureshi submitted that besides the statements of the three co-accused who were tried earlier and convicted, there is no other material against the applicant herein. In such circumstances, according to Mr. Qureshi, the question which arises for consideration is whether the bare confession of one of the accused implicating the other accused, can be treated as substantive evidence. He submits that the statements of the co-accused have been recorded under Section 67 of the NDPS Act. Those statement may be inculpatory and may be involving the present applicant also. However, there is no provision under Section 67 of the NDPS Act like one under Section 15 of the TADA Act, which makes the statement of an accused admissible against the co-accused, conspirators or abettors. He further submitted that the Court should not start with the confession of a co-accused. It must begin with the other evidence adduced by the prosecution, and after it has formed its opinion with regard to the quality and effect of the Page 7 of 22 R/CR.MA/18996/2014 CAV JUDGMENT said evidence, then it is permissible to turn to the confession in order to receive assurance to the confession whether there are any reasonable grounds to believe that the accused is guilty of the offence under the Act. He submitted that the confession of a co-accused can be looked into only to provide corroboration to the other evidence against the accused, but when there is no other evidence the question of corroboration from the confession of such a co-accused would not arise. He submitted that under Section 30 of the Evidence Act, the confession made by one accused is not substantive evidence against the co-accused. It has only a corroborative value.
3.2 Mr. Qureshi has placed strong reliance on a decision of the Supreme Court in the case of Noor Aga Vs. State of Punjab and anr. reported in (2008) 16 SCC 417, wherein the Supreme Court has doubted the correctness of the statement of law made in its earlier decision in the case of Kanhaiyalal Vs. Union of India, reported in AIR 2008 SC 1044, so far as the evidentiary value of the statements recorded under Section 67 of the NDPS Act is concerned. Mr. Qureshi submitted, relying on the decision of Noor Aga (supra) that the statement recorded by the Investigating Officer under Section 67 of the Act cannot be treated as a confessional statement and the same would be hit by Sections 24 and 25 of the Evidence Act.
3.3 Mr. Qureshi also placed reliance on a recent decision of the Supreme Court in the case of Tofan Singh Vs. State of T.N, reported in 2013 Criminal Law Journal 4990, wherein the Supreme Court considered the conflict between the case of Kanhaiyalal (supra) and Noor Aga (supra), and thought fit to refer the issue before the Hon'ble the Chief Justice for Page 8 of 22 R/CR.MA/18996/2014 CAV JUDGMENT constituting a Larger Bench in that regard. He has also relied upon a decision of the Supreme Court in the case of Nirmal Singh Pehlwan @ Nimma Vs. Inspector, Customs, reported in (2011) 12 SCC 298, wherein it has been observed that in Kanhaiyalal (supra), the Bench had not examined the principles and the concepts underlying Section 25 of the Evidence Act, 1872 vis-a-vis Section 108 of the Customs Act and the powers of a Customs Officer, who could investigate and bring for trial an accused in a narcotic matter. The Bench further observed in the said case that it would be proper for them to follow the ratio of the judgment in Noor Aga (supra).
Thus, according to Mr. Qureshi, there being no prima- facie case against the applicant herein, he deserves to be enlarged on bail subject to any terms and conditions, which this Court may deem fit to impose.
4. This application has been vehemently opposed by Mr. K.T. Dave, the learned counsel appearing for the Department. Mr. Dave submitted that this application for bail should be rejected solely on the ground that the applicant-accused was absconding for a period of eleven years. Mr. Dave submitted that there is no need to go into any other issues like the evidentiary value of the statements under Section 67 of the NDPS Act. Mr. Dave pointed out that the applicant, in his own statement recorded under Section 67 of the NDPS Act, has confessed that he was absconding and he knew everything about the arrest of the other co-accused and their conviction. Mr. Dave submitted that the argument canvassed on behalf of the applicant that his statement recorded under Section 67 of the NDPS Act is exculpatory is not correct. According to Mr. Page 9 of 22 R/CR.MA/18996/2014 CAV JUDGMENT Dave, there are many admissions made by the applicant in his statement under Section 67 of the Act, which goes to show that on his instructions, the packet of charas was delivered to the co-accused namely Ganibhai and he had also asked his own brother, who is also one of the co-accused and a convict, to assist Anwar @ Raju for delivering the packet. Mr. Dave submitted that in his statement under Section 67, he has also admitted about making of a cavity in his own vehicle registered in his name, in which he used to clandestinely store drugs and liquor.
4.1 Mr. Dave submits that taking into consideration the provisions of Section 37 of the NDPS Act, no case is made out for the release of the applicant on bail. Mr. Dave pointed out that the Supreme Court, in Tofan Singh's case (supra), has directed the registry to place the matter before the Hon'ble the Chief Justice for the decision on the issue by a Larger Bench, but that would not dilute or nullify the principles of law explained by the Supreme Court in the case of Kanhaiyalal (supra). Till the issue is decided by a Larger Bench, the dictum of law as laid down in Kanhaiyalal (supra) would still hold the field and could be said to be the law within the meaning of Article 141 of the Constitution of India.
5. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether any case is made out by the applicant-accused so far as his plea for bail is concerned.
6. I may at this stage note the relevant provisions of the Page 10 of 22 R/CR.MA/18996/2014 CAV JUDGMENT NDPS Act. The preamble to the NDPS Act shows that the object of the Act is to consolidate and amend the law relating to the narcotic drugs and to make stringent provisions for the control and regulation of operations relating to the narcotic drugs and psychotropic substances etc. Sections 15 to 35 deal with the various offence and penalties. Section 36 provides for the constitution of Special Courts and empower the Government to constitute Special Courts and a person shall not be qualified for appointment as a Judge of the Special Court, unless he is immediately before such appointment a Sessions Judge or an Additional Sessions Judge. Section 36-A enumerates the offence triable by the Special Courts and also deals with the procedure regarding the detention of the accused when produced before a Magistrate. Sub-section (b) of Section 36-A lays down that if the Magistrate to whom an accused is forwarded under S. 167, Cr .P.C. considers that the detention of such person for fifteen days is unnecessary he shall forward him to the Special Court having jurisdiction who shall take cognizance and proceed with the trial. Sub-section (3) of S. 36- A reads thus:
"Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under S. 439 of the Code of Criminal Procedure 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of subsection (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court"
constituted under Section 36."
7. I may take note of Section 37 of the Act, as amended in Page 11 of 22 R/CR.MA/18996/2014 CAV JUDGMENT the year 2001 and the same is in the following terms:-
"37. Offences to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) --
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless --
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.]
8. It is plain from a bare reading of the non obstante clause in the Section and subsection (2) thereof that the power to Page 12 of 22 R/CR.MA/18996/2014 CAV JUDGMENT grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub-clause
(b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds". The expression 'reasonable grounds' has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.[See Union of India v. Rattan Mallik @ Habul - 2009 Cri.L.J. 3042]. Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.
9. Thus, while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of "not guilty". While considering the plea for bail, it is neither necessary, nor desirable to weigh the evidence meticulously to arrive at a Page 13 of 22 R/CR.MA/18996/2014 CAV JUDGMENT positive finding as to whether or not the accused has committed the offence under the NDPS Act. What is to be seen is whether there is a reasonable ground for believing that the accused is not guilty of the offence(s) and he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.
10. I find considerable merit in the contention of Mr. Dave, the learned counsel appearing for the Department that this application deserves to be rejected solely on the ground that the applicant-accused was absconding for a period of almost eleven years, whereas the other three co-accused which includes his own brother were arrested in the year 2003, tried and convicted by the Court. The applicant could be arrested only in the year 2014, and that too when he was arrested by the local Police in connection with the two cases registered under the Indian Penal Code. I find merit in the contention of Mr. Dave that if he is released on bail, then he would again abscond and would not be available for the purpose of trial.
11. Still, over and above this consideration, I would also like to deal with the submissions canvassed on behalf of the applicant-accused so far as Section 67 of the NDPS Act is concerned.
12. However, before that I may only say that in addition to the confessional statement of the applicant herein as well as the confessional statements of the co-accused, there are series Page 14 of 22 R/CR.MA/18996/2014 CAV JUDGMENT of documents, and at the time of the trial, if the same are proved against the applicant, then there is a good case in favour of the prosecution. I am unable to appreciate and accept the submission canvassed on behalf of the applicant that bail should not be refused as a measure of punishment. This is not relevant in this case, in view of the provision of law under Section 37 of the Act. The Act deals with various types of offences relating to Narcotic Drugs and Psychotropic Substances where possession, sale, manufacturing etc. are regarded as not only an offence against a particular individual or a group of individual, but it is regarded as an offence against the society and humanity. Keeping in view the disastrous consequences of use and abuse of the Narcotic Drugs and Psychotropic Substances, legislator have made the offences punishable with severe punishment as well as they have made the condition relating to grant of bail very stringent. According to S. 37, every offence punishable under the Act are cognizable offences and no person, accused of an offence, punishable for a term of imprisonment for five years or more shall be released on bail or on his own bond if there exists a prima facie case and unless the Court is satisfied that if released on bail the offender/accused shall not repeat commission of same type of offences. This restriction is notwithstanding anything contained in the Code, relating to bail. The provision of law being so stringent the matter relating to bail cannot and should not be dealt with lightly and casually.
13. In Kanhaiyalal's case (supra), the Supreme Court took the view that an Officer vested with the powers of an Officer In- charge of a Police Station under Section 53 of the NDPS Act is not a "Police Officer" within the meaning of Section 25 of the Page 15 of 22 R/CR.MA/18996/2014 CAV JUDGMENT Evidence Act. Therefore, a statement made under Section 67 of the NDPS Act is not the same as a statement made under Section 161 of the Cr. P.C. unless made under threat or coercion. The Court held that such vital difference allows a statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operations of Sections 24 to 27 of the Evidence Act.
14. The aforesaid statement of law in the case of Kanhaiyalal (supra) was doubted by the Supreme Court in its later decision in the case of Noor Aga (supra). In that case, the Bench took the view that the principles and the concepts underlying Section 25 of the Evidence Act, vis-a-vis Section 108 of the Customs Act were not examined. The same issue was again considered by the Supreme Court in the case of Tofan Singh (supra), wherein the Bench observed that in view of the conflict between the two decisions, the issue, namely whether the statement recorded by the Investigating Officer under Section 67 of the Act can be treated as a confessional statement or not, even if the Officer is not treated as a Police Officer, needs to be referred to a larger Bench. Accordingly, the matter as on today is yet to be determined by the larger Bench. However, that does not mean that the ratio as propounded in the case of Kanhaiyalal (supra) is to be totally ignored. As on today, it still holds the field.
15. In the aforesaid context, I may quote with profit a Division Bench decision of this Court in the case of Najmunisha wife of Abdul Hamid Chandmiya @ Ladoo Vs. State of Gujarat, reported in 2009(3) GLR page 1982 explaining Noor Aga (supra) and Kanhaiyalal (supra).
Page 16 of 22 R/CR.MA/18996/2014 CAV JUDGMENT"31.4 So far as the relevancy of the statement under Section 67 of the NDPS Act is concerned, we have discussed hereinbefore that we have found that the statements recorded of accused Nos. 1 and 4 are voluntarily, that is established by the evidence, which is impeccable. So far as the issue of the law is concerned about the admissibility of the statement under Section 67 of the NDPS Act, the relevance placed by learned Advocate Mr. Aggrawal upon a decision of the Apex Court in the matter of Noor Aga vs. State of Punjab (supra) is absolutely misplaced.
31.5 It is nowhere stated or laid down by the Apex Court in the decision of Noor Aga vs. State of Punjab (supra) that the statement recorded by the Officers under Section 67 of the NDPS Act are similar to the statement recorded under Section161 of the Code of Criminal Procedure Code by the Police Officer. Under Section67 of the NDPS Act, such statements are made relevant and are admissible and to some extent it also attracts the bar of Sections 24 to 27 of the Indian Evidence Act which we shall discuss hereinafter. It must be noted further that the decision of the Apex Court in the case of Noor Aga vs. State of Punjab (supra) as relied by learned Advocate for the appellants is more on facts, which is self-explanatory by the conclusions arrived by the Apex Court in para 162 of the judgment. The Apex Court in Noor Aga vs. State of Punjab (supra) was concerned with Section 108 of the Customs Act. Though it has been observed by the Apex Court in para 105 as under:-
"105 Section 53 of the Act empowers the customs officers with the powers of the Station House Officers. An officer invested with the power of a police officer by reason of a special statue in terms of subsection (2) of Section53 would, thus, be deemed to be police officers and for the said purposes of Section 25 of the Act shall be applicable.
31.6 Thereafter, the Apex Court in para 106 and 107 observed as under :
106 A legal fiction as is well known must be given its full effect. (See UCO Bank and Anr v. Rajinder Lal Capoor, 2008 (6) SCALE 1).
107 Section 53A of the Act makes such a statement relevant for the purposes of the said Act. The observations of the High Court, thus, confession can be the sole basis of conviction in view of Section 108 of the Customs Act, thus, appear to be incorrect."
31.7 Thus, it is clear from the above that such statements of the accused recorded by the Officers attract bar under Section 25 of the Indian Evidence Act even though they are admissible and in para 107 above, it is expressly stated that Section 53A of the Act makes a statement relevant for the purpose of the said Act. The confessional statement whether can be made sole basis of the conviction is a different question. In the said case, i.e. Noor Aga vs. State of Punjab (supra) the Apex Court did not believe or accept the confessional Page 17 of 22 R/CR.MA/18996/2014 CAV JUDGMENT statement of the accused because they were found not voluntarily and appear to have been taken on "gun point". This is made clear by the observation of the Apex Court in para 108 of the decision, which is as under :
"108 An inference that the appellant was subject to duress and coercion would appear from the fact that he is an Afgan National. He may know English but the use of expressions such as `homogeneous mixture', `drug detection kit', `independent witnesses' which evince a knowledge of technical terms derived from legal provisions, possibly could not be attributed to him. Possibility of fabrication of confession by the officer concerned, thus, cannot altogether be ruled out."
31.8 Nowhere in the whole decision, it is laid down by the Apex Court in Noor Aga vs. State of Punjab (supra) that the statements of the accused under Sections 67 of the NDPS Act or under any other pari materia provisions are similar to the statement recorded by police officers under Section 161 of the Code of Criminal Procedure and, therefore, the reliance sought by learned Advocate for the appellants is not helpful to appellant.
31.9 Further in Noor Aga (supra), the question was that the statement recorded under Section 108 of the Customs Act carries what evidentiary value when the same is used for the purpose of NDPS Act trial and, therefore, the Apex Court in Noor Aga (supra) discussed other judgments including the judgments in the matter of Alok Nath vs. State of West Bengal, as reported in 2006 (13) SCALE 467; in the matter of Babubhai Udesinh Parmar vs. State of Gujarat, as reported in 2006 (12) SCC 268 and in the matter of Om Adinath vs. Deputy Director, NCB, Madras, as reported in 1999 (6) SCC 1. In the case of Noor Aga (supra), the Apex Court emphasized that what is to be seen is the purpose for which arrest or search and seizure is made and investigation is carried out. Even then, in Noor Aga (Supra) the Apex Court in clear terms in paragraphs 106 and 107 observed that by legal fiction under Section 53A of the Customs Act, the statement recorded of the accused under Section 108 of the said Act becomes relevant and admissible even though Customs Officers may be Police Officers.
31.10 Narcotic Drugs and Psychotropic Substances Act is a complete Code. Section 67 of the Act authorizes the authorized officer to record the statement in the form of information received which is made relevant during trial. Section 67 of the NDPS Act does not make any difference of information received from the accused and the other persons so far as the crime is concerned. A legal fiction is created and, hence, it could not be said that for the statements recorded by the authorized officer under Section 67 of the NDPS Act bar Sections 24 to 27 of the Indian Evidence Act is attracted.
31.11 The law in this respect has been made clear by the Apex Court in the matter of KANHAIYALAL vs. UNION OF INDIA, as reported in (2008) 4 SCC 668 in respect of statements under Sections 67 of the NDPS Act of the accused, the Apex Court observed as under in paras Page 18 of 22 R/CR.MA/18996/2014 CAV JUDGMENT 40, 41, 42, 43 and 45 as under :
"40 From the facts of the case and the submissions made on behalf of the respective parties the point which emerges for determination is up to what extent can a statement under Section 67 of the NDPS Act be relied upon for convicting a person accused of having committed an offence under the provisions of the said Act. In order to arrive at a decision in regard to the above, it will also have to be considered whether such a statement would attract the bar both of Sections 24 to 27 of the Evidence Act as also Article 20(3) of the Constitution of India. For the aforesaid purpose, the provisions of Section 67 of the NDPS Act are reproduced hereinbelow :
"67 Power to call for information etc - Any Officer referred to in Section 42 who is authorized in this behalf by the Central Government may, during the course of any inquiry in connection with the contravention of any provision of this Act
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the inquiry;
(c) examine any person acquainted with the facts and circumstances of the case."
41. A parallel may be drawn between the provisions of Section 67 of the NDPS Act and Sections 107 and 108 of the Customs Act and to a large extent Sections 32 of the Prevention of Terrorism Act, 2002 and Section 115 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. These are all special Acts meant to deal with special situations and circumstances. While the provisions of the Prevention of Terrorism Act, 2002 and the TADA Act, 1987 are much more stringent and exclude from their purview the provisions of Sections 24 to 27 of the Evidence Act with regard to confession made before a police officer, the provisions relating to statements made during inquiry under the Customs Act and under the NDPS Act are less stringent and continue to attract the provisions of the Evidence Act. In the case of both the latter enactments, initially an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry so as to whether there has been any contravention of the provisions of the Act or any rule or order made thereunder. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would Page 19 of 22 R/CR.MA/18996/2014 CAV JUDGMENT the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play.
42. Of course, this Court has also held in Pon Adithan case that even if a person is placed under arrest and thereafter makes as statement which seeks to incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence.
43 The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava case. The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence.
45 Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case with which we agree that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a "police officer" within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the NDPS Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act."
31.12 Thus it is clear that law in this respect is that incriminating statement of a person called to provide information relevant to inquiry under Section 67 of the NDPS Act is not, the same as statement under Section 161 of the Criminal Procedure Code and such statements can form the basis of conviction if it is corroborated by other evidence. There is a difference between the statements recorded before arrest of the accused and post arrest of the accused. So far as the during arrest, confession of the accused are concerned, neither Sections 24 to 27 of the Indian Evidence Act is attracted nor it is required that bar under Article 20(3) of the Constitution of India is attracted. While post arrest confessions are concerned, Sections 24 to 27 of the Indian Evidence Act are attracted only to the extent that whether such statements are voluntarily made by the accused or that such statements are recorded on account of threat, inducement or any type of coercion and there Article 20(3) of the Constitution of India is attracted. It must be noted that it is only after a person is placed in the position of an accused, that the bar must under Sections 24 to 27 of the Evidence Act would operate to the extent of voluntariness of the statements and bar under the provisions of the Page 20 of 22 R/CR.MA/18996/2014 CAV JUDGMENT Article 20(3) of the Constitution of India is attracted. What is important is whether the statements made by the person concerned is made during inquiry, prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof.
31.13 The above ratio laid down by the Apex Court in the case of Kanhaiyalal vs. Union of India (supra) has not been diluted in the decision of Noor Aga vs. State of Punjab (supra) nor by necessary implication, the ratio laid down In Kanhaiyalal vs. Union of India has been overruled in the decision of Noor Aga vs. State of Punjab (supra). It must be remembered that, in the matter of Noor Aga vs. State of Punjab (supra), the confessional statement under Section 108 of the Customs Act was recorded for the purpose of inquiry under Section 108 of the Customs Act and was a statement after the arrest of the accused. While in the present case, the accused i.e. appellants were called by serving them summons under Section 67 of the NDPS Act and the statements were recorded prior to their arrest under Section 67 of the NDPS Act. Such statements neither attracts bar under Sections 24 to 27 of the Indian Evidence Act nor the provisions of Article 20(3) of the Constitution of India is attracted. However, when we critically scrutinized the evidence on record, we have again found that the statements are voluntarily offered by accused persons 1 and 4 and those statements can be formed basis of the conviction as corroborated by the other evidence. Much emphatically it has been urged before this Court that the statements of the accused under Section 67 of the NDPS Act is similar to the statement under Section 161 of the Criminal Procedure Code as recorded by the Police Officers . In Kanhaiyalal vs. Union of India (Supra), this contention was thrown out by the Apex Court and there is no legal base at all to apply such similarity between these two provisions especially when law expressly prohibits such similarity between the statements of the accused recorded under Section 67 of the NDPS Act and Sections 161 of the Code of Criminal Procedure. There is no merit at all in this contention and the contention is negatived. It must also be noted that, in the present case, nowhere before recording of the further statement, such confessional statements are retracted by appellants herein, even the law permits to rely upon the retracted confession. In the matter of UNION OF INDIA vs. SATROHAN, as reported in 2008 (3) SCC (Cri) 620, the Apex Court observed in para16 that the confessional statement which was not retracted for considerable long time, could be relied upon. Hence, so far as the lengthy arguments of the learned Advocate for the Appellants about non-admissibility of the statement under Section 67 of the NDPS Act of the appellants is concerned, we negatived the same."
16. Thus, while explaining the conflict between the decision in the case of Kanhaiyalal (supra) and Noor Aga (supra) at a point of time when the issue was not referred to a larger Page 21 of 22 R/CR.MA/18996/2014 CAV JUDGMENT Bench, the Division Bench has taken the view that the ratio in the case of Kanhaiyalal (supra) has not been diluted in the decision of Noor Aga, nor by necessary implication it could be said that the decision in Kanhaiyalal (supra) stands over-ruled.
17. My final conclusions are as under:-
1. Applying the rigours of Section 37 of the Act, no case is made out for grant of bail.
2. The applicant-accused remained absconding for a period of almost 11 years and if released on bail, is likely to indulge once again in the same activity, taking into consideration the background.
3. The statements of the co-accused, including the statement of the applicant-accused under Section 67 of the NDPS Act constitutes more than a prima-facie case against the applicant herein.
18. In the result, this application fails and is hereby rejected.
(J.B.PARDIWALA, J.) Mohandas Page 22 of 22