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1989 Supreme(Bom) 144
BOMBAY HIGH COURT
G. H. GUTTAL, J.
Prajesh Shantilal Vaghani, Applicant
Versus
The Intelligence Officer, Narcotics
Criminal Appln. No. 2631 and 2677 of 1989
Decided on : 6 -12 -1989.
P.R. Vakil with R.G. Merchant and S. Ali Hassan, for Applicant; M.K. Patwardhan, Special Public Prosecutor (for No. 1) and B.R. Patil, Asst. Public Prosecutor (for No. 2), for Respondents. In Cri. Appln. No. 2677 of 1989. P.R. Vakil with Shirish Gupte, for Applicant; M.K. Patwardhan, Special Public Prosecutor (for No. 1) and M.A. Rao, Addl. Public Prosecutor (for No. 2), for Respondents.
The High Court's power to grant bail under Section 439 of the CrPC is unfettered and not limited by the Special Court's power to grant bail under Section 37 of the NDPS Act.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 37 - COURT'S POWER TO GRANT BAIL - SCOPE AND EXTENT - SPECIAL COURT'S POWER TO GRANT BAIL - LIMITATION - HIGH COURT'S POWER TO GRANT BAIL - UNFETTERED - COURT'S DISCRETION TO GRANT BAIL - JUDICIAL AND BASED ON WELL-ESTABLISHED PRINCIPLES - CONFESSIONAL STATEMENTS OBTAINED THROUGH PHYSICAL ASSAULT - RELIABILITY - CIRCUMSTANTIAL EVIDENCE - INSUFFICIENT TO CONNECT ACCUSED WITH SPECIFIC DRUGS SEIZED - NO LIKELIHOOD OF ABSCONDING OR TAMPERING WITH EVIDENCE - BAIL GRANTED.
Fact of the Case:
The applicants, accused of offenses under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), filed applications for bail under Section 439 of the Code of Criminal Procedure (CrPC). The prosecution alleged that the applicants were involved in a continuing criminal conspiracy to export narcotic drugs and psychotropic substances from India to other countries. The applicants denied the allegations and claimed that their confessional statements were obtained through physical assault by the investigating officers.
Finding of the Court:
The court found that the confessional statements of the applicants were likely obtained through physical assault and could not be relied upon. The court also found that there was no evidence of physical possession of the seized narcotics by the applicants and that the evidence against them was circumstantial and insufficient to connect them with the specific drugs seized in the case. The court further noted that the applicants were Indian nationals with no likelihood of absconding or tampering with evidence.
Issues: 1. Whether the Special Court's power to grant bail under Section 37 of the NDPS Act limits the High Court's power to grant bail under Section 439 of the CrPC? 2. Whether the confessional statements obtained through physical assault can be relied upon? 3. Whether the circumstantial evidence is sufficient to connect the applicants with the specific drugs seized in the case?
Ratio Decidendi: 1. The court held that the Special Court's power to grant bail under Section 37 of the NDPS Act is limited by the condition laid down under the section, and the High Court's power to grant bail under Section 439 of the CrPC remains unfettered. 2. The court held that the confessional statements obtained through physical assault are unreliable and cannot be relied upon. 3. The court held that the circumstantial evidence is insufficient to connect the applicants with the specific drugs seized in the case.
Final Decision: The court granted bail to the applicants in the sum of Rs. 2,00,000/- each with one surety each in the like amount.
2. Between 23rd July, 1989 and 23rd August, 1989, three packets containing 8 Kgs. of Heroin, four parcels containing 21.100 Kgs. of Methaqualene powder and four parcels containing 23 Kgs. of Mandrex tablets were seized. Some more parcels addressed to people in different countries were also seized.
During the investigation, Bombay Telephone No. 577094 came to the knowledge of investigating Officers. The telephone was in Flat No. 402, Building No. B-1, Vaishali Nagar, Jogeshwari (West), Bombay. The flat together with the adjoining flat to which the telephone was extended was searched on 6th September, 1989. The accused No. 2 was found in the flat. He revealed the name of the accused No. 1, Magoub Ali. The accused Nos. 1 and 2 were then arrested. The statements of accused Nos. 1 and 2 under Section 108 of the Customs Act and Section 67 of the N.D.P.S. Act were recorded from 6th September, 1989 to 9th September, 1989 during which time the accused Nos. 1 and 2 were continuously in the custody of the Investigating Officers. Magoub Ali, accused No. 1 is alleged to have confessed to be a party to "continuing criminal conspiracy involving export of narcotic drugs and psychotropic substances from India to other countries". According to him, the accused Nos. 4 and 5 together with the accused Nos. 2 and 3 "had helped him and his associates". The statement of the accused No. 1 was the result of three days' detention with the Investigating Officers. Eventually, on or about 9th September, 1989, the applicants herein were taken into custody without arrest. The accused No. 4 in his statement under Section 108 of the Customs Act confessed that he "was involved in the import of Mandrex tablets." The accused No. 5 confessed that "he had supplied 225 Kgs. Methaqualene powder to his associates for illegal exports".
3. On 9th September, 1989, when the applicants were produced before the Court for remand, they complained of assault. The learned Metropolitan Magistrate sent them to J. J. Hospital for examination report. All the accused immediately retracted their statements.
4. I will first dispose of the question of assault by the Investigating Officers. The report of the Chief Medical Officer, Bombay Central Prison Hospital which has been produced before me records that he examined the accused No. 5 on 13th September, 1989. He noticed swelling and tenderness on right elbow and tenderness on knees. The accused No. 5 was all along with the Investigating Officers until the time he was arrested on or about 9th September, 1989. On 10th September, 1989, he complained of assault. In the circumstances, the tenderness and swelling noticed by the Chief Medical Officer, Bombay Central Prison Hospital must be the result of the "treatment" meted out to him by the Investigating Officers. The complaint of assault is therefore well founded. The confessional statement secured by the Investigating Officers by assaulting the accused No. 5 may have to be kept out of view at the time of hearing, unless there is other evidence of reliable nature.
Hamid Umer Patel, the accused No. 4 too complained of assault on 10th September, 1989. The medical certificate from G.T. Hospital reveals that the accused No. 4 had pain at the site of an old operational scar on abdomen and on examination, it was found that there was tenderness at the point of the operation scar. No other mark of external injury was noticed. Tenderness at the site of old operational scar has not been
