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TMI Blog1990 (1) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... Meanwhile, Shersingh met the applicants and told them that he had brought the consignment from Pakistan. The applicants took Shersingh to the room of the accused No. 1. Accused No. 1 took Shersingh in a Maruti Car with him. These facts have been recorded in the statements of the applicants under S. 108 of the Customs Act. According to these statements, the role of the applicants in the transaction ended with the introduction of Shersingh with the accused No. 1 Hamid Khan. 3. The consignment was unloaded under the supervision of Hamid Khan - Accused No. 1, into two fiat cars driven by the accused Nos. 2 and 3. The officers of the respondent No. 1 intercepted the cars and seized the contraband. 4. The statement of accused No. 1 Hamid Khan is also recorded under S. 108 of the Customs Act. He claims to have handed over the keys of the cars to Afzal, accused No. 5, and returned to his room. After an hour or so, presumably after delivery or disposal of the contraband, Afzal handed over the keys back to him. II. DETENTION AND ASSAULT BY THE INVESTIGATING OFFICERS : 5. Admittedly, the statements of all the accused were recorded by the same officers between the midnight of 19th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period they were detained for interrogation. Therefore, the confessional statements are not voluntary and they should be rejected. (b) Secondly, what are recorded as statements of the applicants are partial record of what they had stated. Hamid Khan has implicated the applicants because Hamid Khan says that he handed over the keys of the cars to the applicants who took them and returned them after an hour. The consistent practice of all the Investigating Officers is to confront the maker of the statement with the statements of other accused who implicate him. Either this was not done or if it was done, the denials of the applicants of the incriminating statement made by Hamid Khan have not been recorded. Thus, what have been produced before the Court as the statements of the applicants are not a full record of what the applicants had stated. Mr. Gupta urged that this is not a fit case for releasing the applicants on bail. According to him, S. 37 of the N.D.P.S. Act precludes every Court including the High Court and the Supreme Court from releasing the accused on bail except in the circumstances stated therein. IV. ARREST - MEANING AND COMMENCEMENT OF : 7. Admittedly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The arrest commences with the restraint placed on the liberty of the accused and not with the time of arrest recorded by the Arresting Officers. The argument that the applicants were not arrested at the mid-night of 19th July, 1989 but were detained for interrogation is untenable. Since the offences under the N.D.P.S. Act are cognizable (Section 37(1) of the N.D.P.S. Act), the Investigating Officers possess the authority to arrest without warrant. They arrest a suspect or do not arrest at all. The detention in custody for interrogation is unknown to law. Interrogation is known. A person may be lawfully interrogated. But during such interrogation he is a free man. If he is detained, not allowed to leave the office of the Respondent No. 1 and compelled to eat and sleep there, he is under detention. This restraint is in reality an arrest. In this case, the applicants were not allowed to leave the Office of the Respondent No. 1 after the mid-night of 19th July, 1989. In the circumstances of this case, the applicants were arrested at the mid-night of 19th July, 1989. 8. The Investigating Officers may lawfully detain a suspect for an offence. But detention in custody for inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements of the accused recorded during investigation. But what the Investigating Officers do, in such cases, is to procure statements, by assault, illegal detention and fear of continued detention. Then they present there documents as statements . That is not what the law permits them to do. They can certainly rely upon the statements made by the accused voluntarily. But that is different from saying that the statements may be procured by any means and the accused be convicted on such statements. This manipulation and abuse of the legislative sanction for the use of statements of the accused requires to be censured in the strongest terms. V. EFFECT OF ILLEGAL DETENTION AND ASSAULT : 10. The illegal detention is compounded by physical assault. No doubt, in the case of Afzal, there were no works of injuries such as bruises, haemotoma and so on. But the medical evidence is that he had tenderness on six parts of his body. It is difficult to hold, as has been suggested by Mr. Gupte, that the pain and tenderness can be feigned. Doctors cannot make out tenderness without physical examination. Even if a patient feigns pain in the body, it is the response to physical examination th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is important because the Magistrate records that no complaint was made by the applicants against the Investigating Officers and the applicants urge that they did. On the basis of the statement in the Order of the learned Magistrate, Mr. Gupte urged that the evidence of injuries is fabricated and false. According to the accused, the learned Magistrate, who hears application for remand, is burdened with scores of applications which he disposes off in short time. Therefore, they urge that there was no occasion to ask whether the accused had any complaint against the Intelligence Officers. In view of this controversy, it was necessary for the prosecution to assert through the statement of an Officer present in the Court that the learned Magistrate did ask the accused and the accused replied that they had no complaint Mr. Pandey does not say that he was present in the Court. His affidavit is notable not for what it reveals but for what it conceals. There are no statements as to how the statements were recorded, who interpreted them when the applicant were detained and so on. All that he asserts that there were no injuries on their body when they were produced before the learned Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused, cannot corroborate the statements of the Applicants. The statements of the Applicants need to be kept out of view unless they receive corroboration from other sources. There is no such corroboration except from the statement of Hamid Khan who is a co-accused. In these circumstances, it cannot be said that the prosecution is in possession of evidence on the basis of which conviction is reasonably certain. VI. HIGH COURT'S POWER TO RELEASE UNDER SECTION 439 OF THE CODE OF CRIMINAL PROCEDURE - IS IT LIMITED BY SECTION 37 OF THE N.D.P.S. ACT ? 16. Lastly, Mr. Gupte urged an important but untenable argument, the substance of which is this. Section 37 of the N.D.P.S. Act, inter alia provides that no person accused on an offence punishable for a term of imprisonment of five years or more under the Act shall be released on bail or on his own bond unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail . According to Mr. Gupte, this limitation applies not only to the Court trying the offence but also to the High Court and the Supreme Court. The Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Court is empowered to take cognizance of a crime under the Act upon perusal of the police report or upon a complaint made by an Officer of the Central Government or State Government authorised in that behalf. 18. Section 36A(3) goes on to lay down that Nothing contained in this Section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 .... (Section 36A(3) of the N.D.P.S. Act - Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973, and High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to Magistrate in that section included also a reference to a Special Court constituted under Section 36 ). Clause (b) of sub-section (1) of Section 439 empowers the High Court to set aside or modify the condition imposed by Magistrate while releasing an accused on bail. The Special Court is empowered to take cognizance under Section 167 of the Code of Criminal Procedure. Section 36A(3) goes on to clarify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ean the Court taking cognizance of the crime. 20. A comparative analysis of the restricted power of the Magistrate and the wide power of the High Court in the matter of bail furnishes another guiding principle. Section 437 empowers a Court other than the High Court or Court of Session to release the Accused on bail. In other words, Section 437 does not apply to the High Court or the Court of Session. Clauses (i) and (ii) of sub-section (1) of Section 437 impose restrictions on the power of the Magistrate to release the accused on bail. Section 437(1) precludes the Magistrate from releasing an accused on bail (i) if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or (ii) such person has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more ............ There are no such limitations on the power of the High Court or the Court of Session under Section 439 of the Code of Criminal Procedure. Therefore, the jurisdiction of the High Court or the Court of Session in the matter of granting bail in cognizable offences is unfettered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Statute Law, 7th Edition, page 108). It follows that what a statute forbids must be consistent with what it permits. Thus, if Section 37 forbids the High Court from granting bail except on the conditions stipulated therein, such prohibition must be consistent with the other provisions of the N.D.P.S. Act and the Code of Criminal Procedure. The Parliament has used the words High Court in Section 36 of the N.D.P.S. Act whereunder the Special Court is constituted with the concurrence of the Chief Justice of the High Court. Section 36B of the Act invests the High Court with the Appellate and Revisional jurisdiction over the Special Court. The Parliament, aware of the special jurisdiction of the High Court, has designedly refrained from employing the words High Court , or Supreme Court in Section 37. Therefore, the legislative intent clearly is to exclude the High Court from the ambit of the Court in Section 37 of the Act. The argument that the Court referred to in Section 37 of the Act, includes the High Court does not answer the legislative design in omitting the use of the words High Court in Section 37 of the N.D.P.S. Act. 22. Acceptance of the argument that the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 89 has substituted the Special Court as the Court of Remand and the Court taking cognizance which power is, under the Code of Criminal Procedure exercised by the Magistrate of the First Class. It is clear to me, therefore, that Sections 37(1) and 37(2) refer to the Court which suffers from limitations on their power to release on bail, since the High Court's power under Section 439 of the Code of Criminal Procedure is not subject to any limitations, the words the Court do not include the High Court. 24. The Special Court exercises the power which the Magistrate under Section 167 of the Code of Criminal Procedure exercises in respect of the persons produced before it. A Special Court is not only a trial Court but also the Court which exercises the functions similar to those of the Magistrate, such as remand of the accused, granting of bail, taking cognizance of the crime and so on. The Legislature, aware of this special function which the Special Court performs, realise that the Special Court must also exercise the powers of granting bail in the manner a Magistrate does under Section 437 of the Code of Criminal Procedure. A logical step which the Legislature took was to ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court's power under Section 439 of the Code of Criminal Procedure. It is in this context that the words nothing in this section have been used in Section 36A(3) of the N.D.P.S. Act. The perspective of the words in this section will be clear when one considers the exercise of the power of detention under Section 167 of the Code of Criminal Procedure. At the stage where the Special Court remands the accused into custody, the High Court may, in exercise of its power under Section 439 of the Code of Criminal Procedure, release the accused on bail. The question of releasing the accused on bail arises only when the Special Court authorises his detention before the trial. Therefore, it follows that Section 36A(3) deliberately, advisedly and rightly employs the words nothing contained in this section . Section 37 limits the powers of the Special Court to grant bail in the circumstances stated therein. The legislature by the very nature of its functions could not have foreseen all the cases which fall outside the categories stated in Section 31(1)(b) of the N.D.P.S. Act. The Special Court will naturally authorise the detention of the accused whose case falls outside the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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