Bombay High Court
Suaibo Ibow Casamma vs Union Of India on 27 July, 1993
Equivalent citations: 1994(1)BOMCR64, 1995(80)ELT762(BOM)
ORDER 1. This case presents a picture of total indifference on the part of the Customs Officer to the basic provisions and fundamental rights dealing with the detention of an accused in police custody beyond the period of 24 hours. Not only are the provisions of Section 57 and Section 167 of the Code of Criminal Procedure violated, but there is also a clear breach of the fundamental rights of an accused enshrined under Article 21 and Article 22 of the Constitution of India. In is all the more unfortunate that this should have occurred in a case concerned with the menace of smuggling of narcotics. I have heard Shri Prem for the petitioner, Shri Patwardhan for respondent No. 1 - Union of India and Smt. Pingulkar for respondent No. 2 - State of Maharashtra. 2. The petitioner has been charged with offence punishable under Section 135 of the Customs Act, 1962 as also under Section 8(c) read with Sections 21, 23, 28 and 9 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the N.D.P.S. Act"). The application is for bail. Petitioner was arrested by the officers of the Air Intelligence Unit of the Customs Department at Sahar Air-Port Bombay on the night between 1st and 2nd November, 1991 before his boarding Ethiopian Airlines Flight No. ST 661 to Addis Abbeda. Heroin weighing about 4.5 Kg. was found concealed in his suit-case. The documents annexed to the petition show that recording of the seizure panchnama commenced at 5.30 a.m. on 2nd November, 1991 and was completed by 8 a.m. on the same day. Immediately thereafter his statement was recorded. The panchnama under Section 110 of the Customs Act, 1962 is annexed at Ex. A to this petition which supports the prosecution case, that heroin was recovered from the suit-case belonging to the petitioner. The statement recorded under Section 108 of the Customs Act, 1962 is at EX. B and it shows that the petitioner had purchased the heroin in Bombay by paying U.S. Currency. Prima facie from these two circumstances, it is clear that the petitioner had attempted to smuggle heroin out of India in the morning of 2nd November, 1991. A case for effecting his immediate arrest was, therefore, clearly made out in view of the provisions of Section 104 of the Customs Act, read with Section 42 of the N.D.P.S. Act. 3. Despite the above, the petitioner was produced before the Chief Metropolitan Magistrate as late as on 4th November, 1991 at about 3 p.m. when he retracted his statement. The remanded application is at EX. C which states that the petitioner was intercepted in the early hours of 2nd November, 1991 and heroin was valued at Rs. 9,03,000/-. Immediately on arrest, the petitioner's statement was recorded. It is true that the remand application contains a statement that the arrest was on 3rd November, 1991. Significantly, no time is mentioned about the arrest nor is there any separate panchnama or any other formal document recording the arrest on 3rd November, 1991. It is not dispute before me that right from the early hours of 2nd November, 1991 the petitioner was in the custody of the customs officials and there was a total restraint on his movements. The statement dated 4th November, 1991 retracting the earlier statement dated 2nd November, 1991 is at EX. D wherein the petitioner says that his earlier statement was taken forcibly and nothing was recovered from him. On these averments, the petitioner prays for bail on the ground of the violation of the provisions of Section 57 and Section 167 of the Code of Criminal Procedure. More important than this, he complains of the violation of his fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. 4. An affidavit in reply has been filed by the Assistant Collector of Customs. It is admitted that the panchnama of seizure started at 5.30 a.m. on 2nd November, 1991 and concluded on 2nd November, 1991 at 8 a.m. after which the voluntary statement of the petitioner was recorded. The affidavit further states that the petitioner was under surveillance till he was arrested on 3rd November, 1991. Retracting has been characterised as an after-thought. The affidavit also states that there was no violation of the provisions of Sections 42 to 57 of the N.D.P.S. Act and the question of credibility of the panchas could be considered at the trial. 5. In the above facts, Shri Prem, the learned Counsel appearing on behalf of the petitioner has raised the following contentions. It is first contended that the petitioner was arrested in the early hours on 2nd November, 1991 though there is no precise time mentioned about his formal arrest. Recording of panchnama would show that he was under arrest right from 5.30 a.m. on 2nd November, 1991. This recording of panchnama continued till 8 a.m. on 2nd November, 1991 which was followed by recording of the statement of the petitioner under Section 108 of the Customs Act. Counsel has invited may attention to the provisions of Articles 21 and 22 of the Constitution of India. Article 21 of the Constitution says that no person shall be deprived of his life or personal liberty except in accordance with the procedure established under the law. Article 22 deals with the protection against arrest and detention in certain cases and Clause (2) of Article 22 provides that every person who is arrested and detained in custody should be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time taken for the journey from the place of his arrest to Court of the Magistrate and no person shall be detained in custody beyond such period without authority of the Magistrate. We are not concerned with Clause (3) of Article 22 which deals with an enemy alien and with the person detained under the preventive detention laws. Admittedly that is not the case here. Dealing further with the illegal detention beyond 5.30 a.m. on 3rd November, 1991, Counsel has invited my attention to the provisions of Section 57 of the Code of Criminal Procedure which provides that: "No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court." Relying upon the above provisions of Section 57 read with Section 167 of the Code of Criminal Procedure, it is contended that the maximum period of detention in the initial stage before the accused is produced before the Magistrate cannot exceed 24 hours. In either of these cases it is contended that no detention beyond the limits permitted by the provisions of Article 21 and 22 of the Constitution can be tolerated. 6. In support of the above contentions my attention has been invited to the decision of this Court rendered by my learned brother Choudhari, J. on 22nd September, 1992 in Criminal Application No. 1503 of 1992, namely, Mohammed Yakub Shaikh v. B. D. Goyal and Another. In that case the accused was arrested on 19th July, 1989 at about 10 p.m. and was produced before the Magistrate on 21st July, 1989 at 5.20 p.m. The accused had applied to this Court for bail and on merits the application for bail was rejected by the High Court. Thereafter a contention was raised in this Court about the detention being in contravention of the provisions of Article 21 and 22 of the Constitution. In the second application for bail, no specific contention was raised in writing in this behalf. Nevertheless, this Court examined the question of violation of provisions of Article 21 and 22 of the Constitution and Section 57 of Code of Criminal Procedure. The question of powers of the Customs Officers under Sections 104 and 108 was discussed in details and it was held that if the detention of the accused was total the mere fact that it was contended that a formal arrest took place at some subsequent period was not enough to justify detention beyond the period permitted by Article 21 and 22 of the Constitution. In Mohammad Yakub's case as also in the present case, there is no separate memorandum or panchnama recording the arrest nor is there any separate document supporting the arrest within 24 hours prior to the time of production of the petitioner before the Magistrate. Considering certain Division Bench decision of this Court on the question as to what amounts to "arrest", a view has been taken by Choudhari, J. that if the surveillance and detention was total, arrest would commence from the time of imposition of such total restriction on the movements of the accused. The fact that this ground was not pleaded in the earlier application on in writing in the second application was held to be immaterial since the point went to the root of the matter, as regards the violation of Article 21 and Clause (2) of Article 22 rendering the custody illegal. The Court then considered the question as to whether any part of the investigation during the entire period from the initial arrest to the time of the production could be bifurcated such as the one which was within the period of 24 hours and the rest which was beyond the period of 24 hours and it was held that where the illegality went to the root of the matter and where the entire material was commenced in continuation at different stages ever since the accused was apprehended till he was produced before the Magistrate, it was either wholly vitiated or not. Relying upon some other circumstances such as the accused being in jail for a period of 3 years the trial not having been commenced and the fact of some of the other accused having been granted bail by another Judge of this Court (I. G. Shah, J.) Choudhari, J. granted bail to Mohammed Yakub Shaikh in Criminal Application No. 1503/1992. 7. Counsel has also invited my attention to some more orders passed by this Court on the question of illegal detention of the accused in cases under the N.D.P.S. Act, beyond the permissible period of 24 hours. They are as under :- (i) Criminal Application No. 2628 of 1991, decided by Salthana, J. on 21st October, 1991. This was a case where one accused was arrested on 19th and 20th September, 1991 and was produced before the Magistrate only on 22nd September, 1991. (ii) Criminal Application No. 3374 of 1992, decided by I. G. Shah, J. on 12th November, 1991. In this case the accused was arrested on 3rd November, 1990 and was produced before the Magistrate on 5th November, 1990. (iii) Criminal Application No. 418 of 1992, decided by I. G. Shah, J. on 3rd December, 1992. This was a case of the arrest on 19th September, 1991 and accused was produced before the Magistrate on 22nd September, 1991. Bail was granted in all the above three cases by the High Court. 8. The second contention raised on behalf of the petitioner is that both the panchas to the panchnama of seizure under Section 43 of the N.D.P.S. Act read with Section 110 of the Customs Act are usual "Customs Panchas" having acted in 12 Customs cases so far, details of which are given in ground No. 40 of the petition. The contention is that the panchas are under the influence of the Customs Department and are not independent witnesses and, therefore, the whole investigation is doubtful and, in fact there is no seizure of any contraband material from the petitioner. Reliance has been placed in support of three decisions which are as under :- (i) Criminal application No. 1477 of 1991, decided by I. G. Shah, J. on 9th August, 1991; (ii) Criminal application No. 2677 of 1991, decided by Saldhana J. on 1st November, 1991; and (iii) Criminal application No. 3217 of 1991, decided by I. G. Shah, J. on 13th January, 1992. My attention has been invited to the observations in these orders referring to the habitual panch witnesses being discarded. I. G. Shah, J. in Criminal Application No. 3217 of 1991 has with respect gone to the extent of observing that if the panchas were habitual panchas their evidence was rendered unreliable and, therefore, prima facie, one could conclude that the prosecution would fail. 9. Counsel, lastly, contended that there was no compliance with the mandatory provisions of Sections 42 to 57 of NDPS Act, and hence the entire prosecution case was liable to be discarded at this stage itself. It was contended that if the initial detention beyond the period of 24 hours was illegal, the failure to comply with the mandatory provisions of Sections 42 to 57 would assume greater importance in the facts of the case and the entire investigation would be illegal. Reliance has been placed on some of the observations of Choudhari, J. in Mohammed Yakub's case (Criminal Application No. 1503 of 1992). Stand over to: 27-7-1993 Resumed on: 27-7-1993. 10. In reply to these submission, Shri Patwardhan for the first respondent - Union of India and Smt. Pingulkar for second respondent - State of Maharashtra have contended that it does appear that the petitioner was apprehended in the early hours of 2nd November, 1991 and a seizure panchnama under Section 43 of the N.D.P.S. Act read with Section 110 of the Customs Act was recorded between 5.30 a.m. to 8 a.m. on 2nd November, 1991. The statement under Section 105 of the Customs Act was also recorded immediately thereafter. Assuming at the highest that recording of the six page statement continued from 8 a.m. till 8 p.m. immediately in the evening on 2nd November, 1991, the Customs officers would have been justified in exercising their powers of arrest under Section 104 of the Customs Act. It is contended that if an officer of the Customs has reason to believe that any person has been guilty of an offence punishable under Section 135, he can arrest such a person and shall, as soon as possible, inform him of the grounds for such arrest as provided in sub-section (1) of Section 104. There is a similar provision contained in Section 42 of N.D.P.S. Act. It is not disputed before me that in the face of the seizure panchnama at EX. B and the statement of the petitioner at EX. C there was enough material before the Customs officer to form a belief that the petitioner was guilty of an offence punishable under Section 135 of the Customs Act. In that case, it was not disputed that the petitioner was arrested on 2nd November, 1991 itself. Taking the prosecution case at its highest assuming that the recording of the statement which runs into six hand-written pages continued from 8 a.m. till midnight between 2nd November, 1991 and 3rd November, 1991, even then Shri Patwardhan contends that the petitioner ought to have been produced before the Magistrate before the midnight between 3rd November, and 4th November, 1991. Though the petitioner contends that he was produced before the Magistrate at about 3 p.m. on 4th November, 1991, the respondents contend that he must have been so produced around 11 a.m. on 4th November, 1991. Even if this contention of the respondents is accepted, there is no escape from the clutches of Article 21 and Clause (2) of Article 22 of the Constitution. It does appear from the seizure panchnama EX. A and statement at EX. B that these two formalities must have been completed by about 11 a.m. on 2nd November, 1991 itself. Recording of the six pages statement at EX. B could not have taken more than an hour or two on 2nd November, 1991. In view of the above it was not disputed that production of the petitioner before the Magistrate in the morning of 4th November, 1991 at about 11 a.m. was beyond the permissible limits of law. 11. There is also no dispute before me that the restrictions imposed on the petitioner were total ever since he was apprehended at the airport in the early hours of 2nd November, 1991. Undoubtedly, the petitioner was not allowed to go out of the clutches of the customs officials, from 5.30 a.m. on 2nd November, 1991 and, therefore, it is not possible to say that the petitioners was not arrested at 5.30 a.m. on 2nd November, 1991. None of the Counsel appearing for respondents could produce any formal panchnamas of arrest or any other document showing the formal arrest at any subsequent period after 5.30 a.m. on 2nd November, 1991. On the material that is placed before me, it was not disputed that the detention of the petitioner was total commencing from 5.30 a.m. on 2nd November, 1991. 12. As far as the provisions of Section 57 read with Section 167 of the Code of Criminal Procedure are concerned, it is no doubt contended by the respondents that the provisions of Section 37 of the N.D.P.S. Act would override these provisions even in the matter of illegal detention beyond the period of 24 hours as permitted by Section 57 read with Section 167 of the Code of Criminal Procedure. Reliance is sought to be placed on the Supreme Court decision in the case of Narcotics Control Bureau v. Kishan Lal and Others . There it has been observed that the powers of the High Court to grant bail under Section 439 of the Code of Criminal Procedure were subject to the limitation contained in the amended Section 37 of the N.D.P.S. Act and restrictions placed in the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail. However, none of the respondents could dispute that the mandate of Article 21 and Clause (2) of the Article 22 would be supreme, overriding even the provisions of Section 37 of the N.D.P.S. Act. 13. On the second contention raised on behalf of the petitioner, about the panchas being usual customs panchas the respondents have contended that there is nothing to show that the panchas are under the thumb of the customs department. The area recovered from the suitable is a restricted area within the airport premises where an average citizen may not have easy entry. There is nothing, at this stage, contended the respondents, to doubt the credibility of the panch witnesses. It is contended that the observations made in some of the decisions cited on behalf of the petitioner on this point must be confined to the facts of those cases. It is true that some of the learned Single Judges have on the ground that the panchas were habitual customs panchas not only granted bail to the accused in N.D.P.S. cases but have also expressed a doubt about the prosecution case being reliable on account of the panch witnesses being habitual panch witnesses. 14. On the last contention raised on behalf of the petitioner regarding the non-compliance with the provisions of Sections 42 to 57 of the N.D.P.S. Act, the respondents deny that there was any violation of the said provisions and in the absence of a specific contention being raised pointing out a particular violation of a particular section, the respondents have generally denied the alleged breach of any of the said provisions. They contend that the said provisions must be considered as directory and not mandatory and, in any case, in the absence of any prejudice being shown to have been caused to the petitioner, no finding can be recorded at this stage so as to grant bail to the petitioner. Reliance has also been placed by the respondents on the Division Bench judgment of this Court in the case of Wilfred Joseph Dawood Lema v. State of Maharashtra reported in 1990 Criminal Law Journal 1034. This was a case were the two learned Judges disagreed on the effect of the breach of provisions of Sections 50, 52 and 57 of the N.D.P.S. Act. Section 50 deals with the conditions under which search of persons shall be conducted. Section 52 deals with the disposal of persons arrested and articles seized and Section 57 deals with the report of arrest and seizure to be made within forty-eight hours to the immediate superior official. On the facts in Wilfred Joseph Dawood's case Justice Mehta had taken a view that on account of the breach of these provisions the accused was entitled to acquittal. However, differring from Mehta, J., Kantharia, J. took the view that the accused was not so entitled to acquittal in the facts of the case. On account of the difference between the two learned Judges, the matter was referred to Justice Kurdukar who entirely agreed with the view taken by Kantharia, J. and that is how the Division Bench decision reported in 1990 Criminal Law Journal 1034 is now the view of this Court. Kurdukar J. took the view that when search of a foreign national is taken in the absence of any requisition made by the accused the investigating officer is not obliged to take that person to the nearest gazetted officer or to the Magistrate for effecting the search. It is not obligatory upon the police to take the search by taking the person to the nearest gazetted officer or to the nearest Magistrate. Hence, it was held that there was no breach of the provisions of Section 50 of the Act. Regarding Section 52 it was held that failure to inform the accused about the grounds of arrest cannot by itself render the investigation illegal. It is settled law that every irregularity in the investigation does not necessarily vitiate the trial. Regarding Section 57 it was held that there was sufficient compliance with the provisions of Section 57 in the facts of the case. 15. In Wilfred Joseph Dawood's case, Kantharia, J. has taken the view that the police officer taking search was not duty bound to inform the accused that if he so desired he could be searched in the presence of the gazetted officer or the Magistrate. This has been so held in para 9 of the Division Bench judgment at page 1038 of the report. Dealing with Section 52, Kantharia J. held that the fact that the police officer had not made any entry anywhere about informing the ground of arrest cannot shake his oral evidence in this respect. This has been observed in para 11 of the judgment at page 1039 of the report. Dealing with Section 57, Kantharia about the arrest and seizure in his crime report and F.I.R., there was sufficient compliance with the provisions of Section 57 of the Act. This has been observed in para 12 of the judgment at page 1039 of the report. While coming to these conclusions the Division Bench has placed reliance on the ratio of the Supreme Court decisions in the case of Radha Kisan v. State of Uttar Pradesh and Khandu Sona v. State of Maharashtra . Reliance has also been placed on the decision of this Court in the case of Abdul Sattar v. State - 1989 Criminal Law Journal 430. Relying upon the above decisions the respondents contended that there is no breach of any of the provisions of Sections 42 to 57 of the N.D.P.S. Act so as to render the entire investigation illegal. It was contended that, at any rate, the trial was yet to commence and no opinion should be expressed at this stage on this point. 16. I have considered the rival submissions in the light of the authorities that have been cited before me including the various judgment and orders passed by the learned single Judges of this court. In my view, the matter can be disposed of on the first point itself without being required to decide the other two points. I am saying so because, with respect, I am not in agreement with the view expressed in some cases referred to above on the question of panchas being habitual panch witnesses and this circumstances alone being sufficient to express an opinion, at this stage, that the prosecution case could be unreliable. In the absence of evidence being led at trial, I am not inclined to make any observation prejudicing the prosecution case at this stage when all that I am concerned with is the question of grant of bail. To say that, merely because the panch witnesses are habitual panch witnesses the entire prosecution case would be rendered unreliable is, in my view, not called for in the facts of this case at this stage. On the question of the breach of the provisions of Section 42 to 57, I am bound by the decision of the Division Bench reported in 1990 Criminal Law Journal 1034, namely, the judgment delivered by Kantharia, J. in Wilfred Joseph Dawood Lema's case, with which Kurdukar, J. had agreed. However, in the view that I am taking on the first point it is not necessary for me to deal with the rival submissions on the second and third points. 17. Reverting to the first point raised on behalf of the petitioner, unfortunately there is no controversy before me about the facts that have been averred and as they emerge from the documents on record. It is really unfortunate that the senior Customs Officials who are alive to the menace of smuggling, more so smuggling of narcotics, should be so indifferent not only to the provisions of Section 57 and Section 167 of the Code of Criminal Procedure but even to the fundamental rights guaranteed under Article 21 and Clause 2 of Article 22 of the Constitution. Shri Patwardhan for the first respondent could not explain the lapse on the part of the customs officers who recorded the panchnama at Ex. A and statement at Ex. B in the morning of 2nd November, 1991 but still made no efforts to produce the accused before the Magistrate on 3rd November, 1991. If on recording of these two documents, viz. seizure panchanama at Ex. A and the statement at Ex. B, sub-section (1) of Section 104 was fully complied with, the customs officer had the power to effect the arrest and there is no court in my mind that the petitioner was arrested in the early hours on 2nd November, 1991 and at any rate around 5.30 a.m. on 2nd November, 1991. Assuming for the sake of argument that one can ignore the violation of Section 57 and Section 167 of Code of Criminal Procedure in the light of the observations of the Supreme Court in the case of Narcotics Control Bureau v. Kishan Lal and Others , it is not possible to say that Section 37 of the N.D.P.S. Act can override Article 21 or 22 of the Constitution of India. 18. On facts, there is no doubt that the arrest of the petitioner was complete by 5.30 a.m. on 2nd November, 1991. Restrictions on the movements of the petitioner were total right from 5.30 a.m. on 2nd November, 1991. It is nobody's case that he was ever allowed to move out of the custody of the Customs officer after 5.30 a.m. on 2nd November, 1991 till he was taken to the Magistrate on 4th November, 1991. Whether he was taken to the Magistrate at 3 p.m. as contended by the petitioner or at 11 a.m. on 4th November, 1991 as contended by the respondents, in my view, makes little difference to the violation of fundamental rights guaranteed under Article 21 and 22 of the Constitution. On the facts recorded in this case I am in agreement with the view expressed by Choudhary J. in Mohammed Yakub Shaikh's case to the extent of the detention being illegal as a result of the violation of Articles 21 and 22 of the Constitution. I must, however, hasten to add that I need not express any opinion on the question as to whether what transpired during the entire period of detention from 5.30 a.m. on 2nd November, 1991 till the production of the petitioner before the Magistrate on 4th November, 1991 must be characterised as illegal or wholly vitiated. At this stage, it is not necessary for me to express any opinion on this question and to that extent I may not be construed to be in agreement with the view expressed by Choudhary J. In the concluding potion of his judgment where he has observed as under :- "Once the illegality is found to have vitiated the detention, it is not possible to break up the period of detention so as to pay for instance that the first period of 24 hours was authorised and whatever material was collected during that period would not stand vitiated, because such a splitting up would not be permissible. Where an illegality arises it goes to the root and when the entire material as can be seen from the affidavit in reply was collected in continuation at different stages ever since the applicant was apprehended till he was produced before the Magistrate, it is either wholly vitiated or not." In the facts of this case, I regret my inability to agree with the above reasoning of Choudhari, J. If at the trial it transpires that recording of the seizure panchnama at Ex. A and statement of the petitioner at Ex. B was complete within 24 hours of his arrest i.e. to say within 24 hours from 5.30 a.m. on 2nd November, 1991 then this question can be considered at the trial. It is for this reason that I have expressed my hesitation to agree with the above-mentioned observations of my learned brother Choudhary, J.
19. In view of the above, it is clear that there is an unexplained breach of the mandate of Article 21 and sub-clause (2) of Article 22 of the Constitution. Arrest of the petitioner was complete by about 5.30 a.m. on 2nd November, 1991. Restraint on the petitioner was total from that time. Restrictions on his movements were absolute and from 5.30 a.m. on 2nd November, 1991 he was entirely in custody of the customs officer. If that be so, there is a clear breach of the provisions of Clause (2) of Article 22 which requires that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of his arrest excluding the time necessary for the journey from the place of his arrest to the Court of Magistrate and that in no case such a person shall be detained in custody beyond the said period of 24 hours without the authority of a Magistrate. There is no explanation whatever as to why the petitioner was not produced before the Magistrate in the city of Bombay before 5.30 a.m. on 3rd November, 1991. Admittedly, he was produced before the Magistrate much later i.e. to say on 4th November, 1991 at 3 a.m. as contended by petitioner at 11 a.m. on 4th November, 1991 as contended by the respondents. In my view, the detention of the petitioner beyond the permissible limit of 24 hours is in clear violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.
20. There is no doubt in my mind that the conduct on the part of the Customs Officer is also in breach of the mandatory provisions of Section 57 and Section 167 of the Code of Criminal Procedure. However, as rightly pointed out by the Supreme Court in Narcotics Control Bureau v. Kishan Lal and Others one can perhaps take shelter under the provisions of Section 37 of the N.D.P.S. Act and contended the lapse on the part of the investigating agency is immaterial unless one comes to the conclusion at this stage that on account of this violation of Section 57 and Section 167 of the Code of Criminal Procedure there are reasonable grounds for believing that the petitioner is not guilty of an offence under the N.D.P.S. Act.
21. As stated earlier, I am expressing no opinion on the other two contentions argued by the rival Counsel namely the point regarding the panch witnesses being habitual panchas and alleged breach of the provisions of Sections 42 to 57 of N.D.P.S. Act. In my view, much will depend upon the evidence at the trial. In view of the above, on the limited ground of violation of provisions of Articles 21 and 22 of the Constitution, the petitioner is entitled to bail.
22. Looking to the above facts and circumstances, Shri Patwardhan has rightly impressed upon me the necessary of making a few general observations in the larger interests of upholding the rule of law. Having regard to the settled position in law and having regard to the scheme of the provisions of Section 104 of the Customs Act and Section 42 of the N.D.P.S. Act it is high time that the investigating officers realise that the moment the accused was apprehended and put under complete control of the investigating officer with absolute restrictions on his movements, his arrest would be complete in law. Merely saying in the remand application that the arrest was recorded later, may be a day or two later, is unlikely to convince any Court of law and reflects very poorly on the investigating agency. Recording of the seizure panchanama and statements which are generally the two immediate steps taken could not have taken more than say 12 hours. If that be so, nothing prevented the investigation agency to produce the accused before the Magistrate within the stipulated period of 24 hours. This is not only the mandate of Section 57 and Section 167 of the Code of Criminal Procedure but this is the mandate of Articles 21 and 22 of the Constitution of India. It is unfortunate that the Customs Officials and officials of the Narcotics Cell are indifferent to these elementary but salutary requirements regarding detention beyond 24 hours not being permissible unless the accused was produced before a Magistrate. I have my own doubts as to what would have been the fate of this application in the absence of the first contention being upheld. Many a case under the N.D.P.S. Act which would otherwise [end] in rejection of the application for bail by virtue of the provisions of Section 37 of the N.D.P.S. Act, would have to end in grant of bail, if there is a total violation of the mandate contained in Article 21 and 22 of the Constitution. It is, therefore, necessary for the investigating agency, be it the provisions of Articles 21 and 22 of the Constitution and ensure that utmost care is taken to comply with the same. On Shri Patwardhan's suggestion I direct that a copy of this judgment may, therefore, be sent to the (i) Collector of Customs, Airport, Bombay; (ii) Collector of Customs (Preventive), Bombay; (iii) Joint Secretary, Ministry of Law, Government of India, Shastri Bhavan, Delhi; and (iv) Joint Secretary, Ministry of Law and Justice, 2nd floor, Aykar Bhavan Annex, M. K. Marg, Bombay-400 020. A copy may also be sent to the Director General of Police, Maharashtra State, Bombay and the Chief Secretary, Government of Maharashtra, Mantralaya, Bombay.
23. Hence the order:
(i) The petitioner is ordered to be released on bail in the sum of Rs. 50,000/- with one surety for the like amount or in the alternative cash deposit of the same amount.
(ii) Passport of the petitioner is with respondent No. 1. Respondent No. 1 is directed to retain the passport of the petitioner till the conclusion of N.D.P.S. Special Case No. 756 of 1991.
(iii) The petitioner shall not leave Bombay without obtaining prior written permission of the Assistant Collector of Customs (Prosecution Cell) , Sahar Airport, Bombay.
(iv) Petitioner is directed to attend the office of the Assistant Collector of Customs (Prosecution Cell), Sahar Airport, Bombay on every alternate day during 11 a.m. to 1 p.m. till the conclusion of the trial.
24. Application disposed of.