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IN THE HIGH COURT OF BOMBAY
M.S. Deshpande, J.
B.S. Rawat, Asstt. Collector of Customs... Applicant.
Versus
Mohmed Azan Khan @ Wali Mohd. Khan @ Hamid others... Respondents.
Criminal Application No. 1979 of 1989, decided on 31-8-1989.
Advocates appeared :
A.R. Gupte, for applicant.
R.G. Merchant, for respondent No. 1.
Miss. Prabha Mane, for respondents Nos. 4 and 5.
Mrs. Swati S. Keluskar, P.P., for the State.
The powers of investigation conferred on the authorities under the N. D. P. S are as comprehensive and vide as those of police officers, through they are not police officers in the strict sense of the term.
On behalf of the respondents, it was urged that Section 167 Cr. P. C. contemplates only two types of custodies, police custody and judicial custody and. therefore, once the person is allowed to be detaining in judicial custody, he cannot be place in any other custody. This submission runs counter to the clear provisions of sub-section (2) of Section 167 which enables the Magistrate to authorise detention in such custody as the Magistrate thinks fit. Proviso (a) to that sub-section only prohibits the custody of police beyond the period of fifteen days.
It is apparent that the offences in life destroying drugs and economic offences have been on the increase and the smugglers disrupt the economy of the nation and erode the valuable foreign exchange. Clearly these aspects cannot be ignored by the Courts when considering their own powers and the ever increasing requirement of the changing situation where often the offenders out smart the investigating agency To say that while in judicial custody, the person against whom serious allegations are being made should never be made available to the investigating agency would be to shut out of investigation and put the offenders beyond the reach of the arms of law. Such a narrow construction cannot be placed on the provisions of Section 167 which afford a very wide discretion to the Magistrate or the provisions of NDPS Act which clothe the Additional Sessions Judge with identical powers. What is frowned upon is police custody beyond fifteen days and what is permitted is any other custody beyond the period of fifteen days. The restriction on the term by limiting it to fifteen days would be only in respect of police custody and not the other custody and in proper cases it would be open to the Magistrate or the Additional Sessions Judge or the Special Court to pass orders remanding the offenders to any other custody besides the police custody.
Section 167 (l)-Judicial custody and police custody-Custody of other agency - Held, besides powers of Magistrate or Additional Sessions Judge to grant judicial and police custody, they can also grant custody of o the r agency such as customs officers under the circumstances.
It is apparent that the offences in life destorying drugs and economic offences have been on the increase and the smugglers disrupt the economy of the nation and erode the valuable foreign exchange. Clearly these aspects cannot be ignored by the Courts when considering their own powers and the ever increasing requirement of the changing situation where often the offenders out smart the investigating agency. To say that while in judicial custody, the person against whom serious allegations are being made should never be made available to the investigating agency would be to shut out of investigation and put the offenders beyond the reach of the arms of law. Such a narrow construction cannot be placed on the provisions of Section 167 which affords a very wide discretion to the Magistrate or the provisions of NDPS which clothe the Additional Sessions Judge with identical powers, what is framed upon in police custody beyond fifteen days and what is permitted in any other custody beyond the period of fifteen days. The restriction of the term by limiting it to fifteen days would be only in respect of police custody and not the other custody and in proper cases it would be open to the Magistrate or the Additional Sessions Judge or the Special Court to pass orders remanding the offenders to any other custody besides the police custody.
Section 67-Powers of investigation officers under the Act-Though these officers are not police officers yet their powers are comprehensive and wide as those of police officer.
Under Section 67 any authorised officer has power to call for the information from any person for the purposes of satisfying him whether there has been any contravention of the provisions of the Act or any rule or order made thereunder and require any person to produce or deliver any document or thing useful or relevant to the enquiry. It is not necessary to set out the detailed provisions enacted for the purpose of facilitating investigation into the offences, created by it, but it would be apparent that the powers of investigation conferred on the authorities under the N. D. P. S. Act are as comprehensive and wide as those of Police Officers, though they are not Police Officers in the strict sense of the term.
2. On July 19, 1989 the staff of the Preventive Collectorate intercepted two fiat cars at the junction of Tejpal Lane, Off Govalia Tank Bus Terminus and apprehended two persons-Aslam-respondent No. 3 and Mohmed Yakub Shekh-respondent No. 2 who attempted to take away the two Fiat cars after they opened the door and entered into the said cars. Aslam Mohmed is said to have attempted to take away one of the cars, but on seeing the Customs Officers, tied to run away but was immediately apprehended on the spot Mohmed Shekh was apprehended while he was entering the other car. The searches of the two cars led to the recovery of 100 packets of brown coloured powder suspected to be narcotic drug which when tested with narcotic testing showed the presence of Heroin. The packets bore markings in Urdu pointing to their Pakistan origin and were estimated to be worth about Rs. 2,50,00,000/-. The two accused were arrested and articles were seized. The follow up action led to the apprehension of respondents 1, 4 and 5 in R.K. Hotel at Lamington Road and their statements came to be recorded and it appeared that the two drivers had been engaged by respondent No. 1. Respondents 4 and 5 are said to be employed for arranging delivery at Bombay for export of the contraband outside India. These persons after their arrest were produced before Addl. Chief Metropolitan Magistrate, who granted remand till 4th August, 1989 to judicial custody. On 31-7-1989an application was made by the authority concerned to the Magistrate for issue of examination warrant, but since the respondents were produced in the meantime before the Additional Sessions Judge, an application was made on August 2, 1989 to the Additional Sessions Judge who rejected that application. The learned Additional Sessions Judge permitted the authority to interrogate the respondents. On August 10, 1989 another application was made to the learned Additional Sessions Judge for direction to hand over the respondents to the Customs authorities with liberty to lodge them with Azad Maidan Police Station. That application was not pressed. While deciding the application dated 2nd of August, 1989 the learned Additional Sessions judge took the view that section 267 which was sought to be invoked would not apply to the present situation and in no event enabled the Court to issue an examination warrant. In the view of the learned Additional Sessions Judge section 167 of the Code of Criminal Procedure contemplates only the types of custody, judicial and police. Since Customs Officers are not Police Officers the custody of accused is not contemplated by section 167 of the Criminal procedure Code. It is this order which is being challenged by the present application.
3. Section 267(1) of the Code of Criminal Procedure, 1973 provides that whenever in the course of an inquiry, trial or other proceedings under this Code, it appears to the Criminal Court that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence or for the purpose of any proceedings against hi
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