1990 (1) TMI 308 - HC - Customs

Summary

Issues Involved:

1. Prosecution Case
2. Detention and Assault by Investigating Officers
3. Points Urged
4. Meaning and Commencement of "Arrest"
5. Effect of Illegal Detention and Assault
6. High Court's Power to Release u/s 439 of CrPC and its Limitation by Section 37 of the NDPS Act

Summary:

I. The Prosecution Case:

The accused, including the applicants Ashak and Riyaz, were alleged to have committed offences punishable u/s 21 r/w S. 29 of the NDPS Act and Sections 135(1)(a) and 135(1)(b) both r/w S. 135(1)(ii) of the Customs Act. The consignment of narcotic drugs was transported from Pakistan, and the applicants were involved in facilitating the transaction.

II. Detention and Assault by Investigating Officers:

The accused were detained by the officers from midnight of 19th July, 1989 to 5.20 p.m. of 21st July, 1989, exceeding the legal limit of 24 hours without being produced before a Magistrate. They were allegedly assaulted during this period, and medical reports confirmed injuries on their bodies.

III. The Points Urged:

(a) The applicants' confessions were extorted by physical assault and illegal detention, making them involuntary and unreliable.
(b) The statements recorded were partial and did not include the applicants' denials of the incriminating statements made by co-accused Hamid Khan.

IV. Meaning and Commencement of "Arrest":

The court clarified that "arrest" begins with the restraint on personal liberty by lawful authority, not merely the recorded time of arrest. The applicants were effectively under arrest from midnight of 19th July, 1989, as they were not free to leave.

V. Effect of Illegal Detention and Assault:

The court found that the applicants were assaulted while in custody, making their statements unreliable without strong corroboration. The prosecution failed to provide an alternative explanation for the injuries.

VI. High Court's Power to Release u/s 439 of CrPC and its Limitation by Section 37 of the NDPS Act:

The court held that the High Court's power to grant bail u/s 439 of CrPC is not limited by Section 37 of the NDPS Act. The term "the Court" in Section 37 refers to the Special Court constituted under the NDPS Act, not the High Court. The High Court retains its unfettered jurisdiction to grant bail.

VII. Order:

The applicants were granted bail on a sum of Rs. 3,00,000/- each with one surety each, with the option to deposit cash in lieu of surety bonds. They were required to deposit their passports and report to the Sessions Court of Bombay every Monday. The application for stay of this order and leave to appeal to the Supreme Court was rejected.