2003 (2) TMI 543 - HC - Customs

Summary

Issues Involved:
1. Cancellation of bail granted to the respondent.
2. Admissibility of confessional statements recorded under Section 67 of the NDPS Act.
3. Application of Article 20(3) of the Constitution regarding self-incrimination.

Detailed Analysis:

1. Cancellation of Bail:
The application was filed by the Intelligence Officer, DRI, seeking cancellation of bail granted to the respondent by the Special Judge, Greater Bombay. The Special Judge had granted bail based on two unreported judgments, holding that the confessional statement recorded under Section 67 of the NDPS Act was hit by Article 20(3) of the Constitution. The respondent had previously applied for bail twice, which were rejected. The third application was based on the identical facts and legal principles as the two unreported judgments.

2. Admissibility of Confessional Statements:
The primary question referred to the Division Bench was whether a confessional statement recorded under Section 67 of the NDPS Act by an empowered officer other than a police officer is inadmissible under Article 20(3). The court noted that officers of the DRI or Customs Officers are not police officers, and statements recorded by them are not hit by Sections 24 and 25 of the Evidence Act. The court referenced several judgments, including R.N. Kaker v. Shabir Fidahusein, Raj Kumar Karwal v. Union of India, and K.I. Pavuny v. Assistant Collector, which upheld the admissibility of such statements, emphasizing that the officers do not possess the attributes of police officers.

3. Application of Article 20(3):
Article 20(3) of the Constitution provides protection against self-incrimination. The court examined whether the respondent was an accused at the time his statement was recorded. It was determined that the respondent was not an accused when his statement was recorded, as the complaint was filed later. The court referenced the judgment in Ramesh Chandra Mehta v. State of West Bengal, which held that a person becomes an accused only when a formal complaint is lodged. The court also considered the judgments in Kathi Kalu Oghad and Ramesh Chandra Mehta, concluding that the protection under Article 20(3) is available only if the person was an accused at the time of making the statement.

Conclusion:
The court held that the statement of the respondent recorded under Section 67 of the NDPS Act was not hit by Article 20(3) as he was not an accused at the time. The view taken by Justice Parkar was upheld, and the reference was answered in the negative, stating that such statements are admissible if the person was not an accused when the statement was made. The matter was directed to be placed before the learned Single Judge for further proceedings.