TMI Blog2003 (2) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 20(3) of the Constitution following the two orders dated 16.5.2002 delivered by the learned Single Judge of this Court during the summer vacation in Criminal Application No. 1788 of 2002 and Criminal Application No. 1816 of 2002. 2. The applicant had earlier preferred two applications for bail which were rejected by the Special Judge in July 2001 and thereafter in December 2001. Thereafter, a third application came to be preferred by the Respondent No. 1 before the Special Judge in May 2002 for bail on the basis of the view taken by this Court in Criminal Application No. 1788 of 2002 and 1816 of 2002, that the statement of accused recorded under Section 67 of N.D.P.S. Act in which the accused had confessed their guilt, was hit by testimonial compulsion against which the guarantee is provided by Article 20(3) of Constitution of India. 3. The third application for bail was based precisely on the point decided by this Court in the two applications i.e. Criminal Application Nos. 1788 of 2002 and 1816 of 2002. The contention in the third application was that the facts therein are identical to the fats in Applications Nos. 1788 and 1866 of 2002 and hence the confessional statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution and is inadmissible in law? 8. The view taken by the learned Judge of this Court while deciding Criminal Applications No. 1788 and 1816 of 2002 is that an officer, directed to gather information under Section 67 of the NDPS Act for the purpose of investigation, can record the statement of a person but cannot record the confession of the accused or a person. Reliance was placed on Pulukari Kottaya v. Emperor (AIR 1947 PC 68) and Agnoo Nagesia v. State of Bihar . However, in this context it is pertinent to note that in the said two cases the offences under IPC were being investigated by police officers pursuant to complaints which were already filed and it was during the course of this investigation that the accused who were already under arrest made their statements. It is well settled that officers of DRI or Customs Officers are not police officers and hence, statements recorded by them are not hit by Sections 24 and 25 of the Evidence Act. Moreover, it is an admitted fact that in the present case the complaint had not been filed when the statement was recorded i.e. the person was not an accused at the time when his confessional statement was recorded. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not guilty of the offence within the meaning of Section 37(1)(b)(ii) of the NDPS Act. 12. It is pointed out on behalf of the Respondent-accused that in the present case also the summons was issued for giving evidence and/or producing documents in respect of the inquiry in connection with the transportation and/or smuggling of Psychotropic Substance i.e. 517 kgs. of Mandrex Tablets seized by DRI on 19.6.2000. At the bottom of that summons it is mentioned that the documents required are nil. Referring to the said form of the summons, it is contended on behalf of the accused that this accused was summoned not for producing documents as documents required were shown to be nil but only for giving evidence i.e. giving evidence against himself, particularly when his name was already mentioned by the co-accused as a person being connected with the contraband, which was already seized. It was contended that to give evidence means to be a witness. It is further contended that when there is already reference to the seizure having been made and name of this accused having transpired in the statement of the co-accused as a person connected with the said contraband the respondent was an ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of this Act are cognizable and the persons involved in such offences can be arrested without warrant from a Magistrate. But on the basis of the information or personal knowledge the empowered officer is given power to inquire and investigate in the matter even before a formal accusation is made against a person or FIR is lodged against him. After the seizure of the contraband and the arrest of the person the officer is duty bound under Section 57 of the NDPS Act to make full report of all the particulars of arrest and seizure to his immediate official superior. It is only after the full investigation is made, that the complaint is lodged before the Special Court by the empowered officer who is not a police officer. Looking to scheme of the NDPS Act and the powers of DRI officers it is clear that the summons was issued only for the purpose of making an inquiry. The said inquiry was being made before the complaint was filed and the inquiry was being made from a person who was not an accused at the said time and therefore the confessional statement of such a person recorded during such inquiry cannot be said to be hit by Article 20(3) of the Constitution. It cannot be said tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under Section 171A of the Act. The statement of the accused recorded under Section 171A was challenged before the Apex Court on two grounds. Firstly that it was hit by Section 24 of the Evidence Act and secondly on the ground of violation of guarantee against testimonial compulsion provided under Article 20(3) of the Constitution of India. The said challenge on both the grounds was turned down by the Apex Court. It may be stated here that the provisions under Section 108 of the Customs Act, 1962 is pari material with Section 171-A of the Sea Customs Act 1878. 18. In the present case on 19.6.2000 information was received by the DRI officers that a large quantity of drugs i.e. Mandrix tablets were stored at a particular place at Juhu. Pursuant to the said information, the DRI officers had gone to the said place in Juhu and seized a large quantity of mandrax tablets, then they recorded the statements of the co-accused who were found there. The co-accused revealed the name of the respondent/accused as the person who arranged for the said drugs. Thereafter the respondent-accused was summoned and his statement was recorded. The statement of the respondent-accused cannot be said to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not cognizable. However, offences under NDPS Act are cognizable. Under the Customs Act, a Customs Officer can release the accused on bail but under NDPS Act, he does not have the power to release an accused on bail. Under the Customs Act only an officer of a higher rank i.e. Gazetted Officer can summon the accused to give evidence and produce the documents. However, under the NDPS Act, it is not necessary that the officer should be a Gazetted Officer when summons are issued to the accused to give evidence or to produce documents. However, in this connection it would be necessary to note that the Sea Customs Act 1878 has been replaced by the Customs Act, 1962 and the provisions of Section 171-A of the Sea Customs Act is para materia with Section 108 of the Customs Act, 1962 and Section 107 of the Customs Act, 1962 is similar to Section 67 of the NDPS Act, 1985. Moreover, Section 138 of the Customs Act, 1962 is pari materia with Section 53A of the NDPS Act. Section 53A and Section 67 of the NDPS Act read as under:- 53A. Relevancy of statements under certain circumstances - (1) A statement made and signed by a person before any officer empowered under Section 53 for the investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for the purpose of conviction. He has placed reliance on an unreported decision of the Apex Court in Criminal Appeal No. 131 and 132 of 1961 decided on 20.9.1963, Bhagvandas Goenka v. Union of India. Mr. Keswani submitted that in the said case it was observed that when a show cause notice is issued, it can be said that a formal accusation has been made. A reference is made to the judgment in Goenka a case in para 15 of the judgment in Ramesh Chandra Mehta's (supra) case. However, in respect of Goenka's case, the Constitution Bench in case of Ramesh Chandra Mehta's case observed that it lays down no principal inconsistent with the view we have expressed. In Goenka's case, it was contended that the information obtained from him on 19th September, 1952 and 14th May, 1953 under Section 19 of FERA was inadmissible. In Goenka's case, the Apex Court observed that the information collected under Section 19 is for the purpose of seeing whether a prosecution should be launched or not. At that stage when information is being collected there is no accusation against the person from whom information is being collected. Thus, the information asked for and obtained in Goen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as there is no formal accusation made against him by any person at that time, are in our judgment, substantially correct. Thus it was held by the Constitution Bench in Ramesh Chandra Mehta a case that till there is no formal accusation a person is not an accused person and therefore, the bar under Article 20(3) would not be available. 21a. Mr. Keswani also placed reliance on , Ramanlal Bhogilal Shah and Anr. v. D.K. Guha and Ors. The said case was under the FERA Act. We have carefully gone through the said decision. In the said case, it has been held that the person against whom the FIR is lodged is entitled to protection under Article 20(3). Thus the said decision would be of no help to the respondent/accused as in the present case, the statement of the respondent-accused was recorded on 19.6.2000 and the complaint came to be lodged against him much later. 22. The learned counsel for the applicant DRI contended and rightly so that for a person to get the protection under Article 20(3), he should be an accused person when his statement is recorded. The relevant portion Article 20(3) of the Constitution reads as follow: 20. Protection in respect of conviction for off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u Oghad in para 16 the Apex Court came to the following conclusions: (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement. (2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not compulsion. (3) To be a witness is not equivalent to furnishing evidence in its widest significance, that is to say, as including not merely making of oral or written statements but also production of documents or giving material which may be relevant at a trial to determine the guilt of innocence of the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person so summoned is bound to state the truth upon any subject respecting which he is examined or makes statements and to produce such documents and other things as may be required. The expression any person includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not, when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act with the commission of any offence. In the said case, in para 13 it was further observed that in the case of Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, it was observed as under:- One of the essential conditions for invoking the constitutional guarantee enshrine in Article 20(3) is that a formal accusation relating to the commission of an offence, which would normally lead to his prosecution, must have been levelled agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act, 1878, does not stand in the character of an accused person inasmuch as there is no formal accusation made against him by any person at that time are, in our judgment, substantially correct. 18. We therefore, agree with the High Court that the statements made by Mehta and the other persons accused before the Additional District Magistrate, 24 Parganas, were not inadmissible in evidence because of the protection granted under Article 20(3) of Constitution. 25. Thus, the Apex Court had held in the case of Ramesh Chandra Mehta that the question whether the person suspected of contravention of the provisions should be made an accused is generally decided after the information is collected and there is no formal accusation of an offence until the complaint is filed. The said view was taken by the Constitution Bench after referring to earlier decisions of the Apex Court and other Courts. 26. Next reliance is placed by the learned Counsel for DRI on Percy Rustomji Basta v. The State of Mahrashtra. In paragraph 8 of the said decision, it has been observed that: The only contention that has been raised before us by Mr. A.S.R. Chari, learned counsel for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the statement recorded by an officer of Customs under the Customs Act are admissible in evidence and are not hit by Section 25 of the Indian Evidence Act or Article 20(3) of the Constitution. 28. In the case of K.I. Pavunny v. Assistant Collector, (Head Quarter) Central Excise Collectorate, Cochin reported in JT 1997 (23) SC page 120, the statements of accused were recorded under Section 108 of the Customs Act. The question which fell for consideration was whether the appellant was a person accused of an offence when his confessional statement was recorded. In this decision, the Apex Court has held in para 18 as under: (1) Though the authority/officer on suspecting a person of having committed the crime under the Act can record his statement, such a person per force is not a person accused under the Act. (2) he becomes accused of the offence under the Act only when a complaint is laid by the competent Customs Officer in the Court of competent jurisdiction or Magistrate to take cognizance of the offence. (3) A statement recorded or given by the person suspected of having committed an offence during the inquiry under Section 108 of the Act or during confiscation pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Article 20(3) of the Constitution of India. This objection which had been raised before the trial Court was rejected by the trial Court and it was challenged before this Court. 30. In the case of Harish Bishnoi, this Court in para 3 observed as under:- The learned counsel for the accused had relied upon the Division Bench Judgment of this Court reported in 1998(2) L.J. 5534 John Ohuma Ogmekwa and Anr. v. Intelligence Officer, NCB, Bombay and Anr. Reliance was placed by counsel for the accused on part of para No. 23 which is as under: We may mention that so far as the recovery panchnama is concerned it would only be relevant to the limited extent of factum of recovery . In the case of Harish Bishnoi in para 4, this Court observed as under:- As against this, the counsel for the respondent-NCB relied upon the judgment of Apex Court and 2 judgments of this Court. He first relied upon , Ramesh Chandra Mehta v. State of West Bengal. This was decided by the Constitution Bench of the Supreme Court. The Apex Court considered the provisions of Section 107 of the Customs Act, 1962. The said provision is the same as Section 171-A of the Sea Customs Act, 1878 and pari materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testimony or in the form of a statement recorded or in the form of document produced. The protection that is afforded by Article 20(3) of the Constitution is against extraction of confession or incriminating material from the accused under compulsion. The compulsion can be of various nature and forms. The nature and form of compulsion is, therefore, embodied in Section 24 of the Indian Evidence Act, which makes confessions caused by inducement, threat or promise to be irrelevant in criminal proceedings. 32. On the basis of Apex Court judgment Harban Singh v. State of Maharashtra, the learned Single Judge in the case of Hasan Ismail Dalvi (supra) came to the conclusion that confessional statements recorded by an officer of customs under the Customs Act were admissible in evidence and it was also held that those are not hit by Section 25 of the Evidence Act or Article 20(3) of the Constitution of India. This Court came to the conclusion that the statements recorded by the NCB officials of all three accused persons, therefore, shall be inadmissible, only if, those are obtained under compulsion in nay of the forms as prescribed in Section 24 of Indian Evidence Act i.e. under in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the summons which were issued in paras 13 and 14 of this judgment. 35. The learned Single Judge while deciding Application Nos. 1788 of 2002 and 1816 of 2002 has also placed reliance on the case of Ram Samujh . In the said case the Apex Court was dealing with an application for cancellation of bail as the High Court by a non-speaking order granted bail to a person under the NDPS Act. The Apex Court observed that an accused under the NDPS Act, should not be released on bail during trial unless the mandatory provisions relating to bail under Section 37(1)(b) are satisfied. In the said case, the order granting bail was set aside. In the said decision the aspect of statement of an accused under Section of NDPS Act did not come up for consideration. 36. However, in our opinion, the learned Single Judge while deciding Criminal Application Nos. 1788 of 1816 of 2000 did not consider the most important and relevant factor i.e. whether the person was an accused at the time when his confessional statement was recorded. Article 20(3) of the Constitution would come to the rescue of a person only if he is an accused at that time i.e. the time when the statement was made. In both the ..... 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