1. The petitioners, herein, are the accused Nos. 4 and 5 in N.D.P.S Special Sessions R.A No. 311/89 and 398/89, cases registered under the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the “N.D.P.S Act”. On 3rd October, 1989, the learned special Judge rejected the application for releasing the petitioners on bail. This application is made under S. 439 of the Code of Criminal Procedure and is not a revision application against the order of the learned special Judge. The circumstances giving rise to this application are as extraordinary as the behaviour of the Investigating Officer is shocking.

2. On 11th August, 1989, Raju Maganlal Patel, Jagannath Bhikaji Kadam, and Ramesh Pandharinath Talashilkar, who are accused Nos. 1, 2 and 3 arrived in a Maruti Car bearing No. MAG 5606 and Taxi No. MMQ 1175 at Turner Road, Bandara. The cars were searched. Heroin weighing 4 Kgs. 200 Grams was found in the Maruti Car and Heroin weighing 3 Kgs. 800 Grams was found in the Taxi, along with some other articles. A pouch containing 1 Gram Heroin was found in the Dash Board of the Taxi. The three were brought to the Office of the Narcotic Control Bureau by the Intelligence Officers on the same night at 11.45 p.m The accused Nos. 1, 2 and 3 were continuously in the charge of the Intelligence Officers whose names are K.J Sanchis and R.V Pardeshi. The three accused were detained in the office premises continuously until 13th August, 1989. On 13th August, 1989, they were locked up in the Lock-up of the Azad Maidan Police Station. They were produced before the leached special Judge on 14th August, 1989. Therefore, from 11.45 p.m on 11th August, 1989 until the afternoon of 14th August, 1989, the accused were all along in the “charge” of the two Intelligence Officers. According to the Intelligence Officers, they were “arrested” on 13th August, 1989, and the requirement of law was complied with by producing them before the Court on 14th August, 1989.

3. The petitioners, herein, were taken in charge by the same Intelligence Officers around 1 a.m on 1st October, 1989. They continued to be with the Intelligence Officers in their offices upto 4 p.m of 4th October, 1989 when they were produced before the Special Judge. However, on 3rd October, 1989 at about 5 p.m they were removed from the offices of the Narcotic Control Bureau and locked up in the Lock-up of the Azad Maindan Police Station. Thus, the petitioners too were in the charge of the Investigating Officers for three days from 1st October, 1989 to 4th October, 1989.

4. On the morning of 12 of August, 1989, the statements of the accused Nos. 1, 2 and 3, who were in the custody of the Intelligence Officers, were recorded. The three accused admittedly slept in the offices of the Narcotic Control Bureau. Although their statements were recorded on 12th August 1989 after 8 a.m, the three accused continued to be kept in the custody of the Investigating Officers.

5. The petitioners, too, made statements between 1st October, 1989 and 3rd October, 1989, before they were locked up in the Azad Maidan Police Station.

6. All the accused made statements which are “confessional” in nature. But they immediately retracted them. The petitioners herein retracted their statements in their application dated 3rd October, 1989. In that application, they prayed that since they were assaulted severally, they be produced before the Chief Medical Officer of the Bombay Central Prison for medical examination for ascertaining of the injuries. The learned Judge, on the request of the petitioners, examined them himself. In his own words, the injuries on the person of the petitioner No. 1 Aravind Mehram Patel are:—

“I found that the accused No. 1 Arvind Mehram Patel has on his left upper arm on the rear side below the shoulder black big patch with stripes. He has also small blackish spots on his back. This accused has also a black patch below his left eye. Arvind Patel accused No. 1, has also some black spots on his left foot inside part of the sole”.

7. So far as petitioner No. 2 Pradip Pandurang Jogale is concerned, the learned Judge records:—

“Similarly, accused No. 2 Pradip has also blackish patches on both his wrist. He has also black patch below knee of his right leg. The toe of his right leg appears to be swollen”.

8. Therefore, the learned special Judge remanded the petitioner to jail custody with a direction that they be examined and treated by the Chief Medical Officer of the Bombay Central Prison Hospital.

9. I called for the record of this case from the Court of Sessions, Greater Bombay, for the purpose of verifying the injuries found by the Chief Medical Officer, Bombay Central Prison Hospital. However, I do not find the original report of the Chief Medical Officer in the proceedings of the Sessions Court. A zerox copy of the report has, however, been produced before me by learned counsel for the petitioners. The report not only confirms the injuries noticed by the learned Judge, but sets out an elaborate list of the injuries found on the person of the two petitioners.

10. The injuries on the body of the petitioner No. 1 Arvind Mehram Patel were:—

“1) Blackening of the left eye tenderness on the orbital region.

2) Bruise on left upper arm on lateral aspect size 6′ × 4′ linear bruises colour black brown.

3) 3 abrasions on the left infrascapular region size 2′ × 1′, ½′ × ¼′, 1′ × ¼′.

4) Bruise on left suprascapular region, size 2′ × ½′

5) Tenderness on the left foot. Cause of injuries by hard and blunt object.”

11. The injuries on the person of the petitioner No. 2 Pradip Pandurang Jogale were:

1) Bruise on right wrist transverse in direction, size 4′ × 1′.

2) Bruise on left wrist transverse in direction, size 4′ × 1′ Black Brown in colour.

3) Swelling and tenderness of the right 1st toe.

4) Bruise on the right ankle size 2′ × ¼′.

5) Tenderness on the right sole. Cause of injuries by hard and blunt object.”

12. It must be noted that the petitioners were kept in the Lock-up of the Azad Maidan Police Station, because the respondents do not have their own Lock-up. No case against the petitioners was being investigated by the Azad Maidan Police Station. Therefore, it stands to reason that the Azad Maidan Police Station did not need confessions from these petitioners. Therefore, they had no motive for assaulting the petitioners. Thus, the Azad Maidan Police are entirely innocent of the assault that resulted into the injuries found by the learned Sessions Judge, and also by the Chief Medical Officer. The only persons who could have caused the injuries are (i) the petitioners themselves, or (ii) the Investigating Officers. It has not been suggested that the petitioners who were all along in the custody of the Investigating Officers inflicted injuries on themselves. This rules out self-infliction of the injuries. There is, thus, no doubt, that the injuries on the body of the petitioner were caused while they were in the custody of the Investigating Officers. Therefore, I conclude that the injuries set out in paragraphs Nos. 6 and 7 above, were caused by the Intelligence Officers of the Narcotic Control Bureau and none else. This fact though orally disputed by counsel for the respondents has to be taken as established because no version inconsistent with the assault by the Investigating Officers has been suggested.

13. Mr. Patwardhan, learned Public Prosecutor drew my attention to S. 37 of the N.D.P.S Act whereunder no person accused of an offence punishable for a term of imprisonment exceeding five years under the Act, shall be released on bail unless the Court is satisfied that “there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail”. Mr. Patwardhan suggested that this limits the High Court's power to release the Petitioners on bail. I will, briefly, deal with this point although it was not seriously pursued.

14. The offences under the N.D.P.S Act are triable by the Special Courts constituted under S. 36 of the Act. The Special Court comprises of a single Judge who shall have held the office of Additional Sessions Judge or Sessions Judge. The Special Court created by the Act is, by virtue of S. 36-B, deemed to be a Court of Session. Since the Special Court is a Sessions Court, it stands to reason that its powers are of powers of a Court of Session. Under S. 439 of the Code of Criminal Procedure, the High Court and the Court of Session possess Special power to release an accused on bail. However, S. 36-A(3) of the N.D.P.S Act cautions that nothing in this Section “shall be deemedto affect the special powers of the High Court regarding bail under S. 439 of the Code of Criminal Procedure, 1973”. Therefore, the limitation on the power of the Special Court embodied in Cls. (a) and (b) of S. 37(1) of the N.D.P.S Act do not restrict the High Court's special powers under S. 439 of the Code of Criminal Procedure. In other words, the High Court may release an accused on bail even if it is not “satisfied that there are reasonable grounds for believing that he is not guilty” of the offence under the N.D.P.S Act and that “he is not likely to commit any offence while on bail”. Nevertheless, the High Court in exercising its powers is bound to exercise judicial discretion taking into account the gravity of the offence, the likelihood of the accused fleeing from justice, the quality of evidence, the absence of the prospect of conviction and other factors. The circumstances relevant to the exercise of such discretion vary from case to case and an exhaustive list of such circumstances cannot be laid down.

15. As I will demonstrate in the following paragraphs the prosecution is not in possession of evidence on which the Petitioners can be held guilty.

16. Are there any circumstances which justify the release of the Petitioners on bail? No doubt, trafficking in narcotics is a grave crime and demands a stern approach. But the Court cannot shut its eyes to the quality of “evidence”, the assault inflicted and illegal detention of the suspects. The only “evidence.” in the possession of the prosecution is the statements of the accused. There are telling circumstances arising from the admitted facts which destory the effect of the “evidence”.

17. The first circumstance is this. The Accused Nos. 1, 2 and 3 whose statements implicate the Petitioners, were in the custody of the Intelligence Officers from 11th August 1989 to 14th August 1989. There is no explanation as to why the Accused Nos. 1, 2, and 3 were detained by the Intelligence Officers for four long days without any authority of law. It is claimed by the Intelligence Officers that the Accused were not “arrested” on 11th August 1989. The Intelligence Officers detained the Accused Nos. 1, 2 and 3, as indeed the Petitioners, without any authority. The fact that a formal arrest was not recorded does not make any difference to the fact that the Accused Nos. 1, 2 and 3 were detained illegally. By attaching the label of “arrest” to such detention with reference to a subsequent date, does not make the previous detention lawful. The accused Nos. 1, 2 and 3 were tired out by such illegal detention which denied to them access to legal advice, access to family and contact with their world. The “Statements” procured from the Accused in such oppressed state of mind should be viewed with great caution. The Intelligence Officers made up their record by showing that the Accused were arrested on 13th August 1989. By 13th August 1989, the Intelligence Officers were armed with the “statements” extracted during the illegal detention. The date of arrest had to be the 13th August 1989. If it were earlier, they violate the right of the accused to be produced before the Court. The record of “arrest” on the 13th August 1989 is a manipulation for the purpose of showing arrest within 24 hours of the production of the accused before the Court. A lawful arrest creates rights in the accused. Aware of this fact, the Intelligence Officers febricated the record so as to create the external semblance of legality.

18. The Petitioners' “statements” are a picture of physical assault and oppression. Detained in the office of the Narcotics Bureau from 1-10-1989, they were supposed to have made the statements immediately on the next morning after what the statements describe “sound sleep”. They were admittedly made to sleep in the offices of the Respondents and the statements running into 13 pages are supposed to have been recorded at 8 a.m They are in the handwriting of the Intelligence Officer K.J Sanchis and not in the handwriting of the Petitioners. None except the Petitioners and the Intelligence Officers were present. Between 1-10-1989 and 4-10-1989, they were in the custody of the Intelligence Officers. Here again, what played upon the minds of the Petitioners was fear, fear of continued detention, denial of access to the family and legal advice. On 1st October, 2nd October and up to 5 p.m of 3rd October, 1989, they were in the custody of the Intelligence Officers. It is only at 5 p.m on 3rd October, 1989, after two days of illegal detention, they were kept in the Azad Maidan Police Station Lock-up. Their statements were recorded between 1-10-1989 and 3-10-1989. It is undisputed that between 1-10-1989 and 3-10-1989 they were not let out to return to their homes, meet people and move freely. They are supposed to have made the statements while in such detention. I have already referred to the brutal assault made by the Investigating Officers not by hands but by weapons. The Chief Medical Officer characterises the weapons as “hard and blunt object” which means stick, rod, etc. The injuries are on parts like the back, near the spinal cords, shoulder, eyes, hands and feet. It is under the influence of the isolation, illegal detention and the brutal assault that the Petitioners are supposed to have “confessed” that they committed the offence. I have no hesitation in holding that the statements procured by such assault and illegal detention are not only not voluntary but are the result of oppression and gross abuse of the authority given to the Investigating Officers. They are tainted with crime and violence. In my opinion, such “statements” are worthy of rejection and cannot form the basis of a fair trial. No conviction can be based on such statements even if they are confessional.

19. No doubt, the statements on which the prosecution relies are admissible in evidence. The assault and illegal detention employed to “pursuade” the Accused to make statements destroy their value as evidence. In the case of the Accused Nos. 1, 2 and 3, there is no allegation of assault. Their statements implicate the Petitioners. But the Accused Nos. 1, 2 and 3 have immediately retracted them. Their statements which are also the result of illegal detention and have been retracted, themselves need corroboration. Therefore, the statements of the Accused Nos. 1, 2 and 3 are incapable of corroborating the statements of the Petitioners.

20. The tendency to detain suspects for “questioning” and manipulate the record to show later arrest is a reprehensible practice of recent origin. In cases under the N.D.P.S and Customs Act, the prosecution is no doubt entitled to rely upon the statements of the Accused, which unlike the statements made to the police during investigation, are admissible in evidence. But, what the prosecution does in such cases is to procure statements by threats, assault and illegal detention and then present them as “evidence”. That is not what the law permits them to do. They can rely upon the statements made by the Accused voluntarily and on the basis of such statements secure conviction. But this is different from saying that the statements may be procured by any means and the accused be convicted on such statements. This manipulation had abuse of legislative sanction for the use of statements of the Accused requires to be censured in the strongest terms. Where there is evidence of assault, as in this case, or where there is evidence of illegal detention, as in this case, evidence, other than the evidence of the statements procured by such assault and detention, should be insisted upon.

21. In my opinion, therefore, even if these statements are admissible, they are worthy of rejection because they were procured by illegal detention of the Accused for as long as four days without authority of the Court and because they were procured by assaulting them with hard and blunt objects. If these statements are excluded from the evidence which the prosecution possesses, there is absolutely no evidence on the basis of which a fair trial can be held. For reasons already stated, the statements of Accused Nos. 1, 2 and 3, on the one hand, and those of the Petitioners on the other suffer from the same disability and stigma. Both need corroboration. One set of statements tainted by illegality and crime cannot corroborate another set of similarly tainted statements. Therefore, in my opinion, there is absolutely no evidence on the basis of which an inference of guilt can be drawn.

22. The Investigating Officers may be in possession of information based on intelligence that these Petitioners were involved in possession and sale of narcotics. But this information has to be transformed into valid legally acceptable statements made by the Accused voluntarily. It is only then that a conviction can be founded on such statements. The subjective conviction of the Investigating Officers about the guilt of the Accusded is not a substitute for legally admissible evidence. Such evidence is absent in this case.

23. For all these reasons, I hold that there are no grounds for believing that the Accused are guilty, because the only evidence, viz. the statements of the Accused stands self-condemned.

24. Then, there is the question as to whether the Accused are likely to commit any offence while on bail. There is no material about this fact except a suspicion by the Intelligence Officers based on their information. No facts to justify such an inference have been brought forth.

25. Mr. Patwardhan vehemently, yet fairly, presented the prosecution's version. He is right that such crimes are committed in secrecy and by practice of deceit. The Investigating Officers may be handicapped, because the criminals are always one step ahead of them. But, they are still bound to act within the law.

26. The opinion expressed by me in this judgment is my prima facie opinion for the purpose of considering the application for release of the Accused on bail. The learned Special Judge who may try the case shall not consider himself bound by my opinion, at the time of trial. For these reasons, I pass the following order:—

i) The petition is allowed. The Petitioners shall be released on bail in the sum of Rs. 1,00,000/- each with one surety each. The Petitioners shall not leave the jurisdiction of Greater Bombay without the permission of the trial Court. Liberty to apply.

ii) The application for stay of this Order made by Mr. Patwardhan does not make any sense to me. It means that the Order should not be made today. Having regard to the poor quality of the evidence in the possession of the prosecution and what I have held above about the conduct of the Investigating Officers, I see no reason why the operation of this Order should be stayed. The prayer of stay of the Order made by Mr. Patwardhan is rejected.

iii) In view of the holidays and having regard to the difficulties in furnishing surety bonds immediately, I order that the Petitioners shall be released upon their furnishing personal bonds and on each of them depositing Rs. 1,00,000/- in cash. They shall be released forthwith on such bonds and on depositing cash. However, they shall furnish surety bonds as per the Order at (i) above, on or before 21st November, 1989. The liberty to deposit cash in lieu of the surety bonds is a temporary expedient which shall end on 21st November, 1989.

27. Order accordingly.