Intelligence Officer ... vs Amjad Huseein Khan And State Of ...
2003 Latest Caselaw 191 Bom

JUDGMENT

G.D. Patil, J.

1. The present application has been preferred by the applicant-Intelligence Officer, Directorate of Revenue Intelligence (hereinafter referred to as DRI), 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 Ors. and Criminal Application No. 1816 of 2002, Mohamed Javed Haji Anwar v. State of Maharashtra and Anr. 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 fats in Applications Nos. 1788 and 1866 of 2002 and hence the confessional statement of the accused recorded by the officer of DRI 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 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 before us.

6. It may be stated here that the respondent No. 1 was in custody at the relevant time and he continues to be in custody till today as this Court had granted ad-interim stay of the order dated 30.5.2002 which was extended by this Court from time to time.

7. We have heard the learned counsel for both sides exhaustively on above question of law i.e. "Whether the confessional statement recorded under Section 67 of the 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?"

8. The view taken by the learned Judge of this Court while deciding Criminal Applications No. 1788 and 1816 of 2002 is that an officer, directed to gather information under Section 67 of the NDPS Act for the purpose of investigation, can record the statement of a person but cannot record the confession of the accused or a person. Reliance was placed on Pulukari Kottaya v. Emperor (AIR 1947 PC 68) and Agnoo Nagesia v. State of Bihar . However, in this context it is pertinent to note that in the said two cases the offences under IPC were being investigated by police officers pursuant to complaints which were already filed and it was during the course of this investigation that the accused who were already under arrest made their statements. It is well settled that officers of DRI or Customs Officers are not police officers and hence, statements recorded by them are not hit by Sections 24 and 25 of the Evidence Act. Moreover, it is an admitted fact that in the present case the complaint had not been filed when the statement was recorded i.e. the person was not an accused at the time when his confessional statement was recorded.

9. In the case of R.N. Kaker v. Shabir Fidahusein and Anr. reported in 1990 CRI.L.J. 44, the learned Single Judge of our High Court in a case under the N.D.P.S. Act, held that though Revenue Intelligence Officers have been conferred with the powers of an officer-in-charge of a Police Station, they are not police officers while investigating the offences under the N.D.P.S. Act and hence, the statements made before them are not inadmissible under Section 25 of the Evidence Act or under Section 162 of Code of Criminal Procedure.

10. In the case of Raj Kumar Karwal v. Union of India and Ors. reported in 1991 CRI.L.J. 97, the Apex Court has held that DRI officers do not possess the attributes of a police officer though they are invested with powers of an officer-in-charge of police station therefore, the confessional statement made by an accused to a DRI officer or an officer invested with powers of investigation under Section 53 of NDPS Act is not hit by Section 25 of the Evidence Act. It was held that unless an officer is invested under any special law with the powers of investigation under the Code including the powers to submit a report under Section 173 of Cr.P.C. he cannot be described to be an police officer under Section 25 of the Evidence Act.

No doubt, in both these cases the point in issue was the prohibition under Section 25 of the Evidence Act and the prohibition under Article 20(3) of the Constitution of India did not fall for consideration in the said case. These decisions are relied on by the learned Counsel for DRI as the present case is under the NDPS Act and the officers in the present case belong to the DRI.

11. Reference was made by the learned Single Judge to the summons issued in that case purporting to be under Section 67 of the NDPS Act calling upon the accused to give evidence and to produce the documents which would be used against him. Going by the wording of the summons issued under Section 67 of the Act, the learned Judge was of the view that since the accused was called upon to give evidence and what was ultimately recorded, under Section 67 , was the confession of the guilt by the accused, it was hit by Article 20(3) of the Constitution and, therefore, that statement was inadmissible and since there was no other material against the accused, except his own confession, there was reasonable ground to believe that the accused was not guilty of the offence within the meaning of Section 37(1)(b)(ii) of the NDPS Act.

12. It is pointed out on behalf of the Respondent-accused that in the present case also the summons was issued for giving evidence and/or producing documents in respect of the inquiry in connection with the transportation and/or smuggling of Psychotropic Substance i.e. 517 kgs. of Mandrex Tablets seized by DRI on 19.6.2000. At the bottom of that summons it is mentioned that the documents required are nil. Referring to the said form of the summons, it is contended on behalf of the accused that this accused was summoned not for producing documents as documents required were shown to be nil but only for giving evidence i.e. giving evidence against himself, particularly when his name was already mentioned by the co-accused as a person being connected with the contraband, which was already seized. It was contended that to give evidence means to be a witness. It is further contended that when there is already reference to the seizure having been made and name of this accused having transpired in the statement of the co-accused as a person connected with the said contraband the respondent was an accused at the stage within the meaning of Article 20(3) of the Constitution.

13. The question is whether in the present case by virtue of issuing summons in the above form the respondent-accused was called upon to give evidence against himself. No doubt, there is a different between the scheme of Section 108 of the Customs Act and Sections 67 of the NDPS Act. While under the Customs Act, the Customs Officer is empowered to summon a person to give evidence and produce documents, under Section 67

of the NDPS Act the power is given to the empowered officer to call for information for which purpose he can examine any person acquainted with the facts and circumstances of the case and no specific power is given to him to record evidence. Secondly, under Section 108 of the Customs Act inquiry held by an officer of the rank of a Gazetted Officer shall be deemed to be a judicial proceeding, but the inquiry held under Section67 of the NDPS Act is not stated to be a judicial proceeding. Thus, the Officer who is entitled to hold inquiry under Section 67 of NDPS Act is not empowered to record the evidence but only record the statement after examining the person. Under the provisions of NDPS Act, though the power is given to investigate and prosecute the person violating the provisions of NDPS Act to both the Police Officer as well as to an Empowered Officer who may be other than a Police Officer, in the present case, admittedly, the person investigating the case, is an Intelligence Officer from the Directorate of Revenue Intelligence (DRI) and not a Police Officer to whom the provisions of Section 25 of the Evidence Act are applicable.

14. The powers for the purpose of search, seizure, arrest i.e. investigation and prosecution have been given to certain officers mentioned in Section 42 of the NDPS Act if the officer has reason to believe either from personal knowledge or information given by any person that any offence under the provisions of this Act has been committed. The powers of inquiry, investigation and recording a statement under Section 67

of the NDPS Act and to call for information by requiring any person to deliver or produce any document or any thing or examining any person acquainted with the facts and circumstances of the case is also given to an empowered officer referred in Section 42 of the NDPS Act. No doubt, the offences committed under the provisions of this Act are cognizable and the persons involved in such offences can be arrested without warrant from a Magistrate. But on the basis of the information or personal knowledge the empowered officer is given power to inquire and investigate in the matter even before a formal accusation is made against a person or FIR is lodged against him. After the seizure of the contraband and the arrest of the person the officer is duty bound under Section 57 of the NDPS Act to make full report of all the particulars of arrest and seizure to his immediate official superior. It is only after the full investigation is made, that the complaint is lodged before the Special Court by the empowered officer who is not a police officer. Looking to scheme of the NDPS Act and the powers of DRI officers it is clear that the summons was issued only for the purpose of making an inquiry. The said inquiry was being made before the complaint was filed and the inquiry was being made from a person who was not "an accused" at the said time and therefore the confessional statement of such a person recorded during such inquiry cannot be said to be hit by Article 20(3) of the Constitution. It cannot be said that by the DRI officers issuing such a summons, the respondent was called upon to give evidence against himself.

15. Reference may be made to the judgment of the Supreme Court in the case of K.I. Pavuny v. Assistant Collector (Head Quarter), Central Excise Collectorate, Cochin .

In that case the Apex Court was considering whether the confessional statement under Section 108 of the Customs Act sought to be relied on in evidence were inadmissible under Section 25 of the Evidence Act. Therefore, the point came up for consideration whether the appellant was an accused when his confessional statement was recorded i.e. as to when a person can be said to be an accused for the purpose of Section 24 of the Evidence Act. The prosecution witness had admitted in the cross examination that the officer treated the accused as an accused and decided to prosecute him, even then the Apex Court held that assumption of the witness was erroneous since on that date no formal complaint had been lodged against the appellant whose statement was recorded under Section 108 of Customs Act. Thus, it was held that a person becomes an accused only when a formal complaint is lodged against the said person.

16. The question, therefore, is when the statement of the respondent-accused was recorded, whether he was an accused or not. If he was an accused at the relevant time, the prohibition against testimonial compulsion guaranteed by Article 20(3) is applicable.

17. On behalf of the applicant, reliance is placed on some decisions of the Apex Court and some decisions of this Court. It is contended that the view taken by the learned Single Judge of this Court in Criminal Application No. 1788 of 2002 and 1816 of 2002 whereby bail was granted to the accused under the provisions of N.D.P.S. Act is not a correct view. It is contended that the statement recorded under Section 67

of N.D.P.S. Act is not evidence nor is it a statement of a person accused of an offence when his statement was recorded as the accused came to be arrested thereafter and therefore, Article 20(3) of the Constitution is not attracted. Reference is made to the judgment of the Apex Court in the case of Ramesh Chandra Mehta v. State of West Bengal . In the said case, the Apex Court was dealing with the provisions of the Sea Customs Act, 1878 and in particular the confessional statement recorded by the Customs Authorities under Section 171A of the Act. The statement of the accused recorded under Section 171A was challenged before the Apex Court on two grounds. Firstly that it was hit by Section 24 of the Evidence Act and secondly on the ground of violation of guarantee against testimonial compulsion provided under Article 20(3) of the Constitution of India. The said challenge on both the grounds was turned down by the Apex Court. It may be stated here that the provisions under Section 108 of the Customs Act, 1962 is pari material with Section 171-A of the Sea Customs Act 1878.

18. In the present case on 19.6.2000 information was received by the DRI officers that a large quantity of drugs i.e. Mandrix tablets were stored at a particular place at Juhu. Pursuant to the said information, the DRI officers had gone to the said place in Juhu and seized a large quantity of mandrax tablets, then they recorded the statements of the co-accused who were found there. The co-accused revealed the name of the respondent/accused as the person who arranged for the said drugs. Thereafter the respondent-accused was summoned and his statement was recorded. The statement of the respondent-accused cannot be said to be recorded after he was made accused but the same was recorded for the purpose of inquiry to verify and confirm the statements of the co-accused who had earlier made a reference to him as a person who had arranged for those mandrax tablets. It was after it was confirmed that the respondent/accused had arranged for those mandrax tablets, that he came to be arrested. It is not in dispute that subsequently the complaint came to be lodged before the Special Judge. We are informed that the position in Cr. Applications No. 1788 and 1816 of 2002 is similar i.e. the statements were recorded earlier and the complaints were lodged later.

19. In the present case the arrest of the respondent-accused is shown to be on 20th June 2000, whereas his statement was recorded on 19th June 2000. It is contended on behalf of the accused that the accused was detained by the Officers through out the period since he was summoned and his statement was recorded and on the following day he was produced before the Magistrate at 5 p.m. In our view, simply because the officers had detained the accused from 19/6/2000 it cannot be said that he was an accused when his statement was recorded on 19.6.2000 even though he may have been summoned pursuant to the statement of the co-accused, in which they had implicated him as a person responsible for bringing Mandrax Tablets and storing them in the godown from where they were seized.

20. Mr. Keswani the learned advocate for the respondents submitted that the short question is not whether the officers of DRI are equivalent to Police Officers but whether the statement of the accused are inadmissible under Article 20(3) of the Constitution. He has submitted that all the judgments which have been cited on behalf of the applicants DRI are under the Customs Act or Sea Customs Act whereas the present case is under the NDPS Act. He has submitted that there is a vast difference between the NDPS Act and the Customs or Sea Customs Act. He has submitted that the provisions of the Customs Act cannot be imported into the NDPS Act. Both the Acts are different, for example, under the Customs Act under Section 124, there is a provision for adjudication but there is no power to adjudicate under the NDPS Act. The power to summon the accused to give evidence and to produce the documents is not given under the NDPS Act. All the offences under the Customs Act are not cognizable. However, offences under NDPS Act are cognizable. Under the Customs Act, a Customs Officer can release the accused on bail but under NDPS Act, he does not have the power to release an accused on bail. Under the Customs Act only an officer of a higher rank i.e. Gazetted Officer can summon the accused to give evidence and produce the documents. However, under the NDPS Act, it is not necessary that the officer should be a Gazetted Officer when summons are issued to the accused to give evidence or to produce documents. However, in this connection it would be necessary to note that the Sea Customs Act 1878 has been replaced by the Customs Act, 1962 and the provisions of Section 171-A of the Sea Customs Act is para materia with Section 108 of the Customs Act, 1962 and Section 107 of the Customs Act, 1962 is similar to Section 67 of the NDPS Act, 1985. Moreover, Section 138 of the Customs Act, 1962 is pari materia with Section 53A of the NDPS Act. Section 53A and Section 67 of the NDPS Act read as under:-

53A. Relevancy of statements under certain circumstances -

(1) A statement made and signed by a person before any officer empowered under Section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,-

(a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without any amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or

(b) when the person who made the statement is examined as a witness in the case before the court and the court is of the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice.

(2) The provisions of Sub-section (1) shall, so far as may be, apply in relation to any proceedings under this Act or the rules or orders made thereunder, other than a proceeding before a court, as they apply in relation to a proceeding before a Court.

67. Power to call for information, etc. - Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act-

(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder:

(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry:

(c) examine any person acquainted with the facts and circumstances of the case.

However in our opinion the issue is not whether the relevant provisions are similar or not but whether the person an accused when his statement amounting to a confession was recorded.

21. Mr. Keswani has further submitted that there are situations besides filing of complaint wherein a person can be said to be an accused of an offence. Mr. Keswani has submitted that filing of complaint is not the only situation wherein it can be said that an accusation has been made and if the accused can show from the record that prior to recording of his statement, he was an accused then there is violation of Article 20(3) of the Constitution and said statement cannot be relied upon by the prosecution for the purpose of conviction. He has placed reliance on an unreported decision of the Apex Court in Criminal Appeal No. 131 and 132 of 1961 decided on 20.9.1963, Bhagvandas Goenka v. Union of India. Mr. Keswani submitted that in the said case it was observed that when a show cause notice is issued, it can be said that a formal accusation has been made. A reference is made to the judgment in Goenka a case in para 15 of the judgment in Ramesh Chandra Mehta's (supra) case. However, in respect of Goenka's case, the Constitution Bench in case of Ramesh Chandra Mehta's case observed that "it lays down no principal inconsistent with the view we have expressed." In Goenka's case, it was contended that the information obtained from him on 19th September, 1952 and 14th May, 1953 under Section 19 of FERA was inadmissible. In Goenka's case, the Apex Court observed that the information collected under Section 19 is for the purpose of seeing whether a prosecution should be launched or not. At that stage when information is being collected there is no accusation against the person from whom information is being collected. Thus, the information asked for and obtained in Goenka's case under Section 19 of FERA was not held to be information obtained in violation of Article 20(3) of the Constitution for the accusation in view of the Court was made for the first time on July 4, 1955, when the Reserve Bank of India called for an explanation of the appellant why he should not be prosecuted for contravention of the various provisions of FERA. The Constitution Bench in Ramesh Chandra Mehta's observed that in the light of proviso 23(3) of FERA, in Goenka's case, the Court assumed that when an authority which is statutorily authorised and bound to call for an explanation before a complaint is filed, serves a formal notice calling for explanation, a formal accusation may be deemed to be made. However, immediately thereafter in paras 16 and 17, the Constitution Bench in Ramesh Chandra Mehta's case observed thus:-

16. In our judgment the view expressed by Sinha, J. in Calcutta Motor and Cycle Co. v. Collector of Customs, that a proceeding under Section 171-A of the Sea Customs Act 1878, being preliminary to a criminal trial any statement procured would be inadmissible under Article 20(3) there being a formal accusation relating to the commission of an offence within the normal course may result in prosecution, is not correct. Opinion of the Court recorded in appeal from that judgment in Collector of Customs v. Calcutta Motor and Cycle Co., in which Chakravartti, C.J., observed that the protection of Article 20(3) avails even where a person is not formally accused or charged is inconsistent with the judgments of this Court already referred, cannot also be accepted as correct.

17. The views expressed by the Madras High Court in Collector of Customs, Madras v. Kotumal Bhirumal Pihlajani, (FB) at p. 275 that:

"..... the bar under Article 20(3) of the Constitution will not be available to the statements in the case, since it is not in dispute that they have been recorded only during an investigation undertaken by the Customs Officer under Sections 107 and 108 of the Customs Act of 1952 and at a time when the deponents did not stand in the position of accused in the light of the principles stated in the decisions cited above."

and by the Bombay High Court in Laxman Padma Bhagat v. State, that a person examined under Section 171-A of the Sea Customs Act, 1878, does not stand in the character of an accused person inasmuch as there is no formal accusation made against him by any person at that time, are in our judgment, substantially correct."

Thus it was held by the Constitution Bench in Ramesh Chandra Mehta a case that till there is no formal accusation a person is not an accused person and therefore, the bar under Article 20(3) would not be available.

21a. Mr. Keswani also placed reliance on , Ramanlal Bhogilal Shah and Anr. v. D.K. Guha and Ors. The said case was under the FERA Act. We have carefully gone through the said decision. In the said case, it has been held that the person against whom the FIR is lodged is entitled to protection under Article 20(3). Thus the said decision would be of no help to the respondent/accused as in the present case, the statement of the respondent-accused was recorded on 19.6.2000 and the complaint came to be lodged against him much later.

22. The learned counsel for the applicant DRI contended and rightly so that for a person to get the protection under Article 20(3), he should be an accused person when his statement is recorded. The relevant portion Article 20(3) of the Constitution reads as follow:

"20. Protection in respect of conviction for offences,-

(1) .....

(2) .....

(3) No person accused of any offence shall be compelled to be a witness against himself".

The learned Counsel for DRI contended that for a statement to be hit by Article 20(3), the person must be "an accused" at the relevant time and therefore, it would be necessary to see as to when a person is said to be an accused. He relied on the following authorities:

1) State of Bombay v. Kathi Kalu Oghad

2) Ramesh Chandra Mehta v. The State of West Bengal

3) 1971 CRI. L.J. 933 Percy Rustomji Basta v. The State of Maharashtra

4) Harbansingh Sardar Lenasingh and Anr. v. The State of Maharashtra and Ors.

5) K.I. Pavunny v. Assistant Collector (Head Quarter) Central Excise Collectorate, Cochin.

6) 1998 CRI.L.J. 2782 Union of India v. Altaf Hussain alias Jumai and Anr.

7) 2000 CRI.L.J. 4635 Karnail Singh v. State of Rajasthan.

8) Cri.Rev. Application No. 79 of 1999 (Unreported) Harish Bishnoi v. The State of Maharashtra and Anr. decided on 8.4.1999 (Coram : P.S. Patankar, J.)

23. In the case of Kathi Kalu Oghad (supra) the Constitution Bench of the Apex Court has held that the statement of the accused in police custody without anything more, does not amount to compulsion. Mere production of documents or giving information by accused is not "to be a witness". For an application of Article 20(3) of the Constitution, person must have stood in the character of accused at the time of statement. The question which came up for consideration before the Constitution Bench was whether Section 27 of the Evidence Act was unconstitutional because it contravenes the provisions of Article 20(3). It was observed that if the self-incriminatory information has been given by an accused person without any threat that will be admissible in evidence and that will not be hit by the provisions of Article 20(3) for the reason that there has been no compulsion. Thus it was held that Section 27 of the Evidence Act, is not within the prohibition aforesaid unless the compulsion has been used in obtaining the information. In the said decision, it was further observed that "This Court in Sharma's case , held that the protection under Article 20(3) of the Constitution is available to a person against whom a formal accusation has been levelled in as much as first information report had been lodged against him. In the case of Kathi Kalu Oghad in para 16 the Apex Court came to the following conclusions:

"(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not compulsion.

(3) To be a witness is not equivalent to furnishing evidence in its widest significance, that is to say, as including not merely making of oral or written statements but also production of documents or giving material which may be relevant at a trial to determine the guilt of innocence of the accused.

(4).....

(5).....

(6).....

(7) To, bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made."

Out of the above conclusions, conclusion No.7 is most important and relevant for our purpose. From the above decision, it is quite clear that the statement of a person would fall within the prohibition of Article 20(3) of the Constitution only if a person was an accused at the time he made the statement. In our view, once the Constitution Bench has interpreted the word "accused" in the context of the Evidence Act, it would not be open to us to take a different view and give a different connotation to it under the Constitution of India.

24. The next decision on which reliance is placed is the case of Ramesh Chandra Mehta v. Sate of West Bengal (supra). In the said case, it was urged on behalf of the appellants that the statements made before the Customs Officers exercising power under the Customs act 1962 are inadmissible at the trial of a person accused of an offence under the Customs act 1962, because of Section 25 of the Evidence Act and Article 20(3) of the Constitution. In the said case, the contention raised before the Apex Court was that a person against whom an inquiry is made by the Customs Officer under the Sea Customs Act, 1878 is a person accused of an offence and on that account he cannot be compelled to be made a witness against himself and the evidence if any, collected by examining him under Section 171-A of the Sea Customs Act is inadmissible. The Apex Court held that the said contention has no substance. It was further held in para 11 that in order that the guarantees against the testimonial compulsion incorporated under Article 20(3) may be claimed by a person it has to be established that when he made the statement sought to be tendered in evidence against him, he was a person accused of an offence. It is further observed in the said para that under Section 171-A of the Sea Customs Act, a Customs Officer has power in an enquiry in connection with the smuggling of goods to summon any person whose attendance he considers necessary, to give evidence or to produce a document or any other thing, any by Clause (3) the person so summoned is bound to state the truth upon any subject respecting which he is examined or makes statements and to produce such documents and other things as may be required. The expression "any person" includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not, when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act with the commission of any offence.

In the said case, in para 13 it was further observed that in the case of Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, it was observed as under:-

"One of the essential conditions for invoking the constitutional guarantee enshrine in Article 20(3) is that a formal accusation relating to the commission of an offence, which would normally lead to his prosecution, must have been levelled against the party who is being compelled to give evidence against him."

A reference has also been made in para 14 of the judgment in Rammish Chandra's case to the case of Kathi Kalu Oghad (supra) and it has been observed that the Court in Kathi Kalu Oghads case has not set out a different test for determining the stage when a person may be said to be an accused of an offence. In para 14, it was further observed in relation to Kathi Kalu Oghads case as under:

'the Court merely set out the principles in the light of the effect of a formal accusation on a person, viz. that he stands in the character of accused person at the time when he makes the statement. Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an Officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a magistrate competent to try or send to another Magistrate for trial of the offence. Where a Customs Officer arrests a person and informs that person of the grounds of his arrest, (which he is bound to do under Article 22(1) of the Constitution) for the purposes of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate there is an accusation when a complaint is lodged by the officer competent is lodged by the officer competent in that behalf before the Magistrate.

Finally, in the judgment of Ramesh Chandra Mehta in paragraphs 17 and 18, it has been observed that:

"the view expressed by the Madras High Court in Collector of Customs, Madras v. Kotumal Bhirumal Pihlajari, that:

"..... the bar under Article 20(3) of the Constitution will not be available to the statements in the case, since it is not in dispute that they have been recorded only during an investigation undertaken by the Customs Officer under Sections 107 and 108 of the Customs Act of 1962 and at a time when the deponents did not stand in the position of accused in the light of the principles stated in the decisions cited above."

and by the Bombay High Court in Laxman Padma Bhagat v. State, that a person examined under Section 171-A of the Sea Customs Act, 1878, does not stand in the character of an accused person inasmuch as there is no formal accusation made against him by any person at that time are, in our judgment, substantially correct.

18. We therefore, agree with the High Court that the statements made by Mehta and the other persons accused before the Additional District Magistrate, 24 Parganas, were not inadmissible in evidence because of the protection granted under Article 20(3) of Constitution."

25. Thus, the Apex Court had held in the case of Ramesh Chandra Mehta that the question whether the person suspected of contravention of the provisions should be made an accused is generally decided after the information is collected and there is no formal accusation of an offence until the complaint is filed. The said view was taken by the Constitution Bench after referring to earlier decisions of the Apex Court and other Courts.

26. Next reliance is placed by the learned Counsel for DRI on Percy Rustomji Basta v. The State of Mahrashtra. In paragraph 8 of the said decision, it has been observed that:

"The only contention that has been raised before us by Mr. A.S.R. Chari, learned counsel for the appellant is that in view of Section 24 of the Evidence Act, Ex. T, the statement of the appellant recorded by the Customs authorities under the Acct, is not admissible in evidence at thee trial for the offences in respect of which the appellant was charged and tried. His further contention is that as the conviction has been based substantially on the statements contained in Ex.T, the conviction is illegal. The other contentions based on Article 20(3) and Section 25 of the Evidence Act which were taken before the High Court have not been take before us. In fact those contentions are no longer available to the appellant in view of the decisions of this Court."

In paragraph 18 of the said judgment, it has been observed as under:

"We have already pointed out that when the appellant appeared before the Customs Officer on the morning of January 7, 1964, he was served with a summons under Section 108 of the Act and that it was after the receipt of the summons, the appellant gave the statement Ex.T. From the decision in it is clear that when an inquiry is being conducted under Section 108 of the Act, and a statement is given by a person against whom the inquiry is being held it "is not a statement made by a person accused of an offence and the person who gives the statement does not stand in the character of an accused person". Therefore, the first essential fact to be established, to attract Section 24, referred to above is lacking in this case, as the appellant was not an accused person."

It has been held that Customs officer making an inquiry under Section 107 or 108 of the Customs Act is not the Police Officer and person against whom the inquiry is made is not an accused person. The statement made by such person in that inquiry is not a statement made by a person accused of any offence and thus, the statement recorded by the Customs Officer would not be hit by Section 24 of the Evidence Act.

27. Thereafter reliance is placed on Harbansingh Sardar Lenasingh and Anr. v. The State of Maharashtra and Ors. In the said case, statements of the appellant had been recorded under Section 108 of the Customs Act. Thereafter, the accused was put under arrest. In the said decision, it has been observed in paragraph 10 as under:

"The matter indeed is concluded by the decision of this Court in the case of Ramesh Chandra Mehta v. State of West Bengal , wherein it has been held that the statement recorded by an officer of Customs under the Customs Act are admissible in evidence and are not hit by Section 25 of the Indian Evidence Act or Article 20(3) of the Constitution."

28. In the case of K.I. Pavunny v.

Assistant Collector, (Head Quarter) Central Excise Collectorate, Cochin reported in JT 1997 (23) SC page 120, the statements of accused were recorded under Section 108 of the Customs Act. The question which fell for consideration was whether the appellant was a person accused of an offence when his confessional statement was recorded. In this decision, the Apex Court has held in para 18 as under:

"(1) Though the authority/officer on suspecting a person of having committed the crime under the Act can record his statement, such a person per force is not a person accused under the Act. (2) he becomes accused of the offence under the Act only when a complaint is laid by the competent Customs Officer in the Court of competent jurisdiction or Magistrate to take cognizance of the offence. (3) A statement recorded or given by the person suspected of having committed an offence during the inquiry under Section 108 of the Act or during confiscation proceedings is not a person accused of the offence within the meaning of Section 24 of the Evidence Act, by reason of statutory compulsion of recording the statement of the accused giving voluntary statement pursuant to his appearing either after issuance of summons or after the appellant surrender, such statement cannot be characterized to have been obtained by threat, inducement or promise, (5) The collection of evidence under Section 108 and other relevant provisions relating to search and seizure are only for the purpose of taking further steps for confiscation of contraband and imposition of penalty. (6) The selfsame evidence is admissible in evidence on the complaint laid by the Customs Officer for prosecution under Section 135 or other relevant statutes."

Thus in this case the Apex Court held that a person becomes an accused only when a Complaint is filed by a competent officer before the Court competent to take cognizance. In the present case, the statement of the respondent was recorded on 19.6.2000 and it was only thereafter that he came to be arrested and the complaint came to be filed by the competent officer before the court competent to take cognizance. Thus when his confessional statement was recorded he was not an accused and as he was not an accused he cannot claim protection under Article 20(3). Thus as the respondent was not an accused at time when his confessional statement was recorded, it cannot be said that the said statement is inadmissible.

29. Reliance was also placed by the learned Counsel for DRI on an unreported decision of this Court dated 8th April 1999 rendered in Criminal Revision Application No. 79 of 1999 in the case of Harish Bishnoi v. State of Maharashtra and Anr. The said case like the present one was also under the N.D.P.S. Act. In the said case the accused was intercepted when he was travelling by Car. There was a secret cavity behind the back seat of the Car containing drugs. On the accused being questioned about it, he admitted it in his statement under Section of the N.D.P.S. Act. A panchnama was also made in that respect. During the trial, an objection was raised on behalf of the accused that further question regarding what the accused had said in reply to the query by the officer and which was recorded in the panchnama cannot be stated by the Investigating Officer. The objection was that it was in violation of Article 20(3) of the Constitution of India. This objection which had been raised before the trial Court was rejected by the trial Court and it was challenged before this Court.

30. In the case of Harish Bishnoi, this Court in para 3 observed as under:-

The learned counsel for the accused had relied upon the Division Bench Judgment of this Court reported in 1998(2) L.J. 5534 John Ohuma Ogmekwa and Anr. v.

Intelligence Officer, NCB, Bombay and Anr. Reliance was placed by counsel for the accused on part of para No. 23 which is as under:

"We may mention that so far as the recovery panchnama is concerned it would only be relevant to the limited extent of factum of recovery".

In the case of Harish Bishnoi in para 4, this Court observed as under:-

As against this, the counsel for the respondent-NCB relied upon the judgment of Apex Court and 2 judgments of this Court. He first relied upon , Ramesh Chandra Mehta v. State of West Bengal. This was decided by the Constitution Bench of the Supreme Court. The Apex Court considered the provisions of Section 107 of the Customs Act, 1962. The said provision is the same as Section 171-A of the Sea Customs Act, 1878 and pari materia with Section of the NDPS Act. The Apex Court while considering the provisions of Section 107 and 108 (of the Customs Act) approved the judgment of this Court reported in 67 B.L.R. Page 317 and rejected the view taken by the Calcutta High Court. It was observed that a person examined under Section 171-A 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 other persons accused before the Additional District Magistrate, 71 Paraganas, were not inadmissible in evidence because of the protection granted under Article 20(3) of the Constitution."

In the case of Harish Bishnoi this Court concluded that the learned trial Judge was right in rejecting the objection raised by the accused that the evidence relating to the statement made by the accused was inadmissible in view of the Article 20(3) of the Constitution of India."

31. The learned counsel for the applicant next placed reliance upon the case reported in 2001 ALL MR (Cri) 1445, Hasan Ismail Dalvi v. Narcotic Control Bureau and Anr. In the said case, the prosecution (NCB) had relied upon the statements of one of the accused person recorded under Section of NDPS Act and statements of two of the accused recorded under Section of the NDPS read with Section 108 of the Customs Act. It was contended on behalf of the appellant/accused that they were continuously detained for the purpose of recording their statements, their arrest was shown on differed dates and thus, the statements were extracted under compulsion in the form of threat, inducement and promise etc. Thus, it was contended on behalf of the accused that the statements are therefore, hit by Article 20(3) of the Constitution. The above contention came up for consideration before the learned Single Judge of this Court. The learned Single Judge has observed in para 8 as under:

"Considering Article 20(3) of the Constitution of India, in order that protection against self incrimination should come to rescue a person, following three ingredients are required to be satisfied:

(1) Accusation of an offence against such person:

(2) Compulsion to provide evidence :

(3) Giving out self incriminating material, relating to accusations levelled against him, either in the form of oral testimony or in the form of a statement recorded or in the form of document produced.

The protection that is afforded by Article 20(3) of the Constitution is against extraction of confession or incriminating material from the accused under compulsion. The compulsion can be of various nature and forms. The nature and form of compulsion is, therefore, embodied in Section 24 of the Indian Evidence Act, which makes confessions caused by inducement, threat or promise to be irrelevant in criminal proceedings."

32. On the basis of Apex Court judgment Harban Singh v. State of Maharashtra, the learned Single Judge in the case of Hasan Ismail Dalvi (supra) came to the conclusion that confessional statements recorded by an officer of customs under the Customs Act were admissible in evidence and it was also held that those are not hit by Section 25 of the Evidence Act or Article 20(3) of the Constitution of India. This Court came to the conclusion that the statements recorded by the NCB officials of all three accused persons, therefore, shall be inadmissible, only if, those are obtained under compulsion in nay of the forms as prescribed in Section 24 of Indian Evidence Act i.e. under inducement, threat or promise.

33. Thus on going through the judgments cited above, it is clear that when it is to be decided whether a statement is hit by Article 20(3) the main factor which is to be taken into consideration is whether the person was "an accused" at that time. However, as the decisions cited above were not cited before the learned Single Judge when he was deciding Criminal Application Nos. 1788 and 1816 of 2002, the learned Single Judge could not consider this most important and vital factor.

34. In the two decisions rendered by the learned Single Judge in Criminal Application No. 1816 of 2002, it was the case of the applicants/accused that there was no evidence against them except their statements recorded by the officers of the N.C.B. under Section of the NDPS Act. Summons had been issued to the accused where in had been mentioned that "he has been directed to remain present before the concerned Intelligence Officer in Narcotic Control Bureau (N.C.B.) for attending Zonal office for giving his evidence and/or producing the documents in respect of inquiry made by him". It was contended that the summons by itself was in contravention of Article 20(3) of the Constitution of India, which compelled him to be a witness against himself. The learned Single Judge came to the conclusion that the said summons was in violation of Article 20(3) of the Constitution as issuance of such summons was as good as compelling the applicant to give evidence against himself and to produce the documents which would be used against him and thus bail came to be granted to the applicant. In Criminal Application No. 1788 of 2002 also the Intelligence Officer, N.C.B. issued summons to the applicant stating therein that he considered the attendance of Smt. Hamidia Sayed Ali Shaikh (accused/applicant) necessary for giving evidence and/or producing the documents in respect of an inquiry made by him (Investigating Officer NCB) in connection with the alleged dealing in possession of narcotic drugs and psychotropic substance in the seizure etc. The learned Single Judge came to the conclusion that the summons which had been issued in itself infringed Article 20(3) of the Constitution of India and as apart from the statement made by the applicant the prosecution did not have any other evidence against him, granted bail to the applicant. We have already dealt with the aspect of the summons which were issued in paras 13 and 14 of this judgment.

35. The learned Single Judge while deciding Application Nos. 1788 of 2002 and 1816 of 2002 has also placed reliance on the case of Ram Samujh . In the said case the Apex Court was dealing with an application for cancellation of bail as the High Court by a non-speaking order granted bail to a person under the NDPS Act. The Apex Court observed that an accused under the NDPS Act, should not be released on bail during trial unless the mandatory provisions relating to bail under Section 37(1)(b) are satisfied. In the said case, the order granting bail was set aside. In the said decision the aspect of statement of an accused under Section of NDPS Act did not come up for consideration.

36. However, in our opinion, the learned Single Judge while deciding Criminal Application Nos. 1788 of 1816 of 2000 did not consider the most important and relevant factor i.e. whether the person was an accused at the time when his confessional statement was recorded. Article 20(3) of the Constitution would come to the rescue of a person only if he is an accused "at that time" i.e. the time when the statement was made. In both these cases, summons had been issued prior to the complaints being filed and as such, the applicants were not accused persons at the relevant time when the summons were issued to them and their statements were recorded and thus Article 20(3) of the Constitution would not have been attracted in the said cases. So also in the present case the statement of the respondent-accused was recorded on 19.6.2000, he came to be arrested on 20.6.2000 and the complaint came to be lodged much later, thus when his statement was recorded he was not "an accused" and therefore, no protection can be claimed by him under Article 20(3).

37. Thus, the view taken by Justice Parkar that the statement of the Respondent/accused was recorded by Officers of DRI in the course of an inquiry before he was made an accused and therefore it cannot be said to be hit by Article 20(3) is a correct view.

38. It has been held by the Apex Court in Sharma's case which has been relied on in the case of Kathi Kalu Oghad that protection under Article 20(3) of the Constitution is available to a person against whom a formal accusation, has been made in as much as FIR has been lodged against him. Thus, in our opinion, statements which have been recorded during the course of an enquiry or in answer to a summons under Section of the NDPS Act are not hit by Article 20(3) if the complaint has not been filed at the time when the statement was recorded. The statement even though confessional in nature is not hit by Article 20(3) as the person was not an accused at the time when the said statement was recorded. In this regard, we would like to quote the Apex Court in Ramesh Chandra Mehta's Case "Till there is no formal accusation a person is not an accused and therefore the bar under Article 20(3) would not be available.

39. In the aforesaid circumstances, for the reasons set out hereinabove, we answer the question of law referred to us in the negative i.e. to say that the statements of a person recorded under Section of the NDPS Act even though they are confessional in nature cannot be said to be hit by Article 20(3) of the Constitution of India if the person was not an accused person at the time of making the statement.

40. The reference is answered accordingly.

Office to place the matter before the learned Single Judge.