1993 (7) TMI 97 - HC - Customs

Summary

Issues Involved:
1. Violation of Sections 57 and 167 of the Code of Criminal Procedure.
2. Violation of Articles 21 and 22 of the Constitution of India.
3. Credibility of the panch witnesses.
4. Compliance with Sections 42 to 57 of the NDPS Act.

Detailed Analysis:

1. Violation of Sections 57 and 167 of the Code of Criminal Procedure:
The petitioner was apprehended in the early hours of 2nd November 1991, and heroin was recovered from his suitcase. Despite this, he was not produced before the Chief Metropolitan Magistrate until 4th November 1991. The remand application suggested the arrest was on 3rd November 1991, but no formal documentation supported this. The petitioner was under total restraint from 5:30 a.m. on 2nd November 1991, indicating a breach of Section 57, which mandates that no police officer shall detain an arrested person for more than 24 hours without a Magistrate's order. This was further supported by the provisions of Section 167, which also limits detention without a Magistrate's authority to 24 hours.

2. Violation of Articles 21 and 22 of the Constitution of India:
Article 21 ensures that no person shall be deprived of life or personal liberty except according to the procedure established by law. Article 22(2) mandates that an arrested person must be produced before the nearest Magistrate within 24 hours. The petitioner's detention from 5:30 a.m. on 2nd November 1991 to his production before the Magistrate on 4th November 1991 violated these constitutional protections. The court emphasized that the restrictions on the petitioner's movements were total from the time of his apprehension, and no formal arrest documentation was produced to justify the delay.

3. Credibility of the Panch Witnesses:
The petitioner argued that the panch witnesses were habitual "Customs Panchas," having acted in numerous customs cases, which could undermine their credibility. Previous cases were cited where habitual panch witnesses' reliability was questioned. However, the court noted that at this stage, without trial evidence, it was premature to conclude that the prosecution case was unreliable solely based on the habitual nature of the panch witnesses.

4. Compliance with Sections 42 to 57 of the NDPS Act:
The petitioner contended that there was no compliance with the mandatory provisions of Sections 42 to 57 of the NDPS Act, which would invalidate the entire investigation. The respondents denied any violations and argued that these provisions should be considered directory rather than mandatory. The court referred to a Division Bench judgment in Wilfred Joseph Dawood Lema v. State of Maharashtra, which held that not all procedural breaches necessarily invalidate an investigation. The court decided not to express an opinion on this point at this stage, as it would depend on the trial evidence.

Conclusion:
The court concluded that the petitioner's detention beyond 24 hours without being produced before a Magistrate violated Articles 21 and 22 of the Constitution. This breach of fundamental rights warranted the grant of bail. The court ordered the petitioner to be released on bail with conditions, including retaining his passport and requiring regular attendance at the Customs office.

Order:
The petitioner was granted bail in the sum of Rs. 50,000 with one surety or a cash deposit of the same amount. The petitioner was restricted from leaving Bombay without written permission and was required to attend the Customs office every alternate day until the trial's conclusion. The application was disposed of accordingly.