SUAIBO IBOW CASSAMA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS case presents a picture of total indifference on the part of the Customs Officer to the basic provisions and fundamental rights dealing with the detention of an accused in police custody beyond the period of 24 hours. Not only are the provisions of section 57 and section 167 of the Code of Criminal Procedure violated, but there is also a clear breach of the fundamental rights of an accused enshrined under Article 21 and Article 22 of the Constitution of India. It is all the more unfortunate that this should have occured in a case concerned with the menace of smuggling of narcotices. I have heard Shri Prem for the petitioner, Shri Patwardhan for respondent No. 1 Union of India and Smt. Pingulkar for respondent No. 2- State of Maharashtra.

(2.) THE petitioner has been charged with offences punishable under section 135 of the Customs Act, 1962 as also under section 8 (c) read with sections 21, 23, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the N. D. P. S. Act" ). The application is for bail. The petitioner was arrested by the officers of the Air Intelligence Unit of the Customs Department at Sahar Air-port Bombay on the night between 1st and 2nd November, 1991 before his boarding Ethiopian Airlines Flight No. ET 661 to Addis Abbada. Heroin weighing about 4. 5 k. g. was found concealed in his suit-case. The documents annexed to the petition show that recording of the seizure panchanama commenced at 5. 30 a. m. on 2nd November 1991 and was completed by 8 a. m. on the same day. Immediately thereafter his statement was recorded. The panchanama under section 110 of the Customs Act, 1962 is annexed at Ex. A to this petition which supports the prosecution case, that Heroin was recovered from the suit-case belonging to the petitioner. The statement recorded under secion 108 of the Customs Act, 1962 is at Ex. B and it shows that the petitioner had purchased the heroin in Bombay by paying U. S. currency. Prima facie from these two circumstances, it is clear that the petitioner had attempted to smuggle heroin out of India in the morning of 2nd November, 1991. A case for effecting his immediate arrest was, therefore, clearly made out in view of the provisions of section 104 of the Customs Act, read with section 42 of the N. D. P. S. Act.

(3.) DESPITE the above, the petitioner was produced before the Chief Metropolitan Magistrate as late as on 4th November, 1991 at about 3 p. m. when he retracted his statement. The remand application is at Ex. C which states that the petitioner was intercepted in the early hours of 2nd November, 1991 and heroin was recovered from his suit-case in the presence of panchas. The heroin was valued at Rs. 9,03,000/ -. Immediately on arrest, the petitioners statement was recorded. It is true that the remand application contains a statement that the arrest was on 3rd November, 1991. Significantly, no time is mentioned about the arrest nor is there any separate panchanama or any other formal document recording the arrest on 3rd November, 1991. It is not in dispute before me that right from the early hours of 2nd November, 1991 the petitioner was in the custody of the Customs officials and there was a total restraint on his movements. The statement dated 4th November, 1991 retracting the earlier statement dated 2nd November, 1991 is at Ex. D wherein the petitioner says that his earlier statement was taken forcibly and nothing was recovered from him. On these averments, the petitioner prays for bail on it he ground of the violation of the provisions of section 57 and section 167 of the Code of Criminal Procedure. More important than this, he complains of the violation of his fundamental rights guaranted under Articles 21 and 22 of the Constitution of India.