HARISH C BISHNOI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD both sides.

(2.) THE Investigating Officer in this case, which is filed against the applicant under NDPS Act, 1985, was in the witness box. It seems that the car of the applicant was intercepted. There was secret cavity behind the back seat of the car containing the drugs. The applicant was questioned about it. He has admitted in his statement under Section 67 of NDPS Act Panchanama was also made in that respect. At the time of deposition the I.O. stated that the car was carefully examined and he sensed a secret cavity behind the back seat of the car. Hence he questioned the accused. At that stage an objection was raised on behalf of the applicant that further questions regarding what the accused has said and was recorded in the panchanama cannot be stated by I.O. The objection was that it is violative of Article 20(3) of Constitution of India. This objection came to be rejected by the learned Special Judge, Brihan Mumbai, by order dated 17-11-1998. This is challenged here.

(3.) AS against this the learned Counsel for Respondent relied upon judgment of the Apex Court and 2 judgments of this Court. He first relied upon AIR 1970 SC 940 (V.57 C 193). This was decided by the Constitution Bench of the Supreme Court. The Apex Court considered the provisions of Section 107 of Customs Act, 1967. The said provision is the same as Section 171A of Sea Customs Act, 1878 and pari materia with Section 67 of NDPS Act. The Apex Court while considering the provisions of Sections 107 and 108 approved the judgment of this Court reported in 67 BLR page 317 and rejected the view taken by the Calcutta High Court. It was observed that a person examined under Section 171A of the Sea Customs Act, 1878 does not stand in the character of an accused person inasmuch as there is no formal accusation. It was further observed "We therefore, agree with the High Court that the statements made by Mehta and the other persons accused before the Additional District Magistrate, 21 Parganas, were not in admissible in evidence because of the protection granted under Article 20(3) of Constitution."