IMPORTANT POINT
Section 438(2) Cr.P.C. is applicable to an accused or arrestee.

JUDGMENT

Aftab Alam, J. —

1. Leave granted

2. This appeal is directed against the judgment and order of the Andhra Pradesh High Court dated March 22, 2007 in Crl. R.C. No.300 of 2007 by which the High Court dismissed the criminal revision filed by the appellant and affirmed the order of the Metropolitan Sessions Judge dated December 15, 2006, directing that any interrogation of the respondent may be held only in the presence of his advocate.

3. The facts and circumstances in which this appeal arises need to be noticed first. On July 20, 2006, the officers of the Directorate of Revenue Intelligence (for short “DRI”) Hyderabad, raided the premises of M/s Hy-Gro Chemicals Pharmatek Private Ltd. and found a shortage of 250kgs of Dextropropoxyphene Hydrochloride (DPP HCL). DPP HCL is a manufactured narcotic drug as specified in Government of India’s notification S.O. 826(E), dated November 14, 1985, at Serial no.87.

4. C.K. Bishnoi (accused no.1) and P.V.Satyanarayana Raju (accused no.2), the Managing Director and the Production Manager, respectively, of M/s Hy-Gro Chemicals Pharmatek Private Ltd., admitted that the drug was clandestinely cleared to M/s J. K. Pharma Agencies, New Delhi, of which the respondent, Jugal Kishore Samra and his brother, Ramesh Kumar Samra (accused no.3) happen to be the partners. On the next day, i.e., July 21, 2006, a search was carried out at the Cargo Complex of the Indira Gandhi International Airport, New Delhi, and five drums containing DPP HCL were discovered. On examination of the cargo it was found that the contraband was manufactured by M/s Hy-Gro Chemicals Pharmatek Pvt. Ltd. and was sent to M/s J.K. Pharma Agencies by wrongly declaring the consignment as 5-Amino Salicylic Acid. The Directorate of Revenue Intelligence registered a case against C.K. Bishnoi, P.V.Satyanarayana Raju and Ramesh Kumar Samra for the offences punishable under sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”).

5. While the statements of accused no.1 and accused no.2 had already been recorded under section 67 of the NDPS Act, the DRI officials summoned the respondent and his brother (accused no.3). According to the respondent, on November 5, 2006, when he, accompanied by his brother and another person arrived at the DRI office in, Hyderabad, at 10:30pm, they were tortured by the DRI Officials. Unable to withstand the torture, the respondent suffered a heart attack and was moved to a hospital. The respondent was discharged on November 7, 2006 and advised complete bed rest for a month. But he went directly to the DRI Office to enquire about the whereabouts of his brother. He was kept waiting for 2 days and was also given threats of third degree methods. On November 9, 2006, en route to the DRI Office, the respondent developed chest pain and was again hospitalized till November 11, 2006.

6. In this background, the respondent filed an application for anticipatory bail under section 438 of the Code of Criminal Procedure which was allowed by the Metropolitan Sessions Judge by order dated December 1, 2006, on the ground that the respondent was not shown as an accused in the case and, therefore, the bar under section 37 of the NDPS Act did not apply to him and further, the medical record filed by the respondent showed that he had been suffering from heart disease and had already undergone heart surgery on two occasions.

7. After the grant of anticipatory bail, the respondent filed another application under section 438(2) of the Cr .P. C. for modification of the order of anticipatory bail to the extent that the interrogation and examination of the respondent be conducted in the presence of his advocate and a cardiologist. The Metropolitan Sessions Judge, by order dated December 15, 2006, partly allowed the application of the respondent after perusing the medical record and holding that the presence of an advocate at the time of interrogation of the respondent by the DRI offi