TMI Blog1993 (7) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner 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 my 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 the 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted by Articles 21 and 22 of the Constitution. In Mohammod 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 or 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 Articles 21 and Clause (2) of Article 22 rendering the custody illegal. This 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 1991; and Criminal application No. 3217 of 1991, decided by I.G.(iii) 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 : 27-7-1993.Resumed on 10.In reply to these submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout 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 petitioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 where 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 vew that on account of the breach of these provisions the accused was entitled to acquittal. However, differring from Mehta, J., Kanth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court 958. 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 judgments 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 circumstance 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 prejudici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Articles 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 Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 p.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 reported in 1991 (52) E.L.T. 328 (SC) = 1991 Criminal Law Journal 654 one can perhaps take shelter under the provisions of Section 37 of the N.D.P.S. Act and contend 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 or 22 of the Constitution. It is, therefore, necessary for the investigating agency, be it the Customs Officials, Narcotics Cell or the Police to bear in mind the salutary 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 : 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. Passport of the petitioner is with res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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