JUDGMENT - PATIL G.D., J.:---The present application has been preferred by the applicant-Intelligence Officer, Directorate of Revenue Intelligence (hereinafter referred to as D.R.I.), for cancellation of bail granted to respondent No. 1 Amjad Hussein Khan by the learned Special Judge, Greater Bombay by order dated 30th May, 2002 in N.D.P.S. Special Case No. 122 of 2000. The learned Special Judge granted bail to the respondent No. 1 relying on two unreported judgments of this Court i.e. in Criminal Application No. 1788 of 2002 (Smt. Hamidia Sayed Ali Shaikh v. N.C.B. and others)1, and Criminal Application No. 1816 of 2002 (Mohamed Javed Haji Anwar v. State of Maharashtra and another)2. The decision in Criminal Application No. 1788 of 2002 and Criminal Application No. 1816 is dated 16th May, 2002. The learned Special Judge granted bail to the respondent/accused holding that statement of respondent-accused recorded under section 67 of N.D.P.S. Act which was confessional in nature was hit by Article 20(3) of the Constitution following the two orders dated 16-5-2002 delivered by the learned Single Judge of this Court during the summer vacation in Criminal Application No. 1788 of 2002 and Criminal Application No. 1816 of 2002.

2. The applicant had earlier preferred two applications for bail which were rejected by the Special Judge in July 2001 and thereafter in December 2001. Thereafter, a third application came to be preferred by the respondent No. 1 before the Special Judge in May 2002 for bail on the basis of the view taken by this Court in Criminal Application No. 1788 of 2002 and 1816 of 2002, that the statement of accused recorded under section 67 of N.D.P.S. Act in which the accused had confessed their guilt, was hit by testimonial compulsion against which the guarantee is provided by Article 20(3) of Constitution of India.

3. The third application for bail was based precisely on the point decided by this Court in the two applications i.e. Criminal Application Nos. 1788 of 2002 and 1816 of 2002. The contention in the third application was that the facts therein are identical to the facts in Applications Nos. 1788 and 1866 of 2002 and hence the confessional statement of the accused recorded by the officer of D.R.I. was hit by the provisions of Article 20(3) of Constitution of India.

4. It is not in dispute that the material against the respondent No. 1/accused is his own confessional statement and the statements of the co-accused recorded under section 67 of N.D.P.S. Act.

5. Earlier this matter came up before the learned Single Judge (S.S. Parkar, J.) for admission. Justice Parkar was of the view that considering the scheme of the Code of Criminal Procedure, section 108 of the Customs Act, section 67 of N.D.P.S. Act and the powers of the Revenue Intelligence Officers, the statement of the respondent-accused was recorded in the course of inquiry before he was made an accused and therefore it cannot be said to be hit by Article 20(3) of Constitution of India. Justice Parkar was of the opinion that since the view taken by him is in conflict with the view taken by Justice Chitre in the two bail applications i.e. Criminal Application No. 1788 of 2002 and Criminal Application No. 1816 of 2002 which were disposed of on 16th May, 2002, the matter will have to be referred to the Division Bench. Hence, the matter was referred by Justice Parkar by order dated 4th July, 2002 to the Division Bench to decide the following question:

"Whether the confessional statement recorded under section 67 of N.D.P.S. Act by an empowered officer other than the Police Officer, is hit by prohibition under Article 20(3) of the Constitution and is inadmissible in law?"

In this view of the matter, office was directed to place this matter before the Honourable the Chief Justice for referring the above question for decision by Division Bench of this Court as the question is likely to arise in several cases of this kind. Accordingly, this matter came to be placed bef

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