ORDER
1. The applicants herein are respectively accused Nos. 5 and 4 in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the N.D.P.S. Act. The learned Additional Sessions Judge before whom the Applicants applied for bail in N.D.P.S. Special Remand Application No. 360 of 1989, rejected the application of the Applicants as also those of the remaining three accused. The Applicants have preferred this application under section 439 of the Code of Criminal Procedure.
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 was 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 explained by the prosecution. However, since the accused No. 4 was always in custody of the Investigating Officer, the tenderness at the scar of the operation could possibly be the result of ill-treatment. But unlike the accused No. 5, this is not clear evidence of assault.
5. So far as the accused No. 4 Hamid Umer Patel is concerned, he was examined by the Senior Resident Medical Officer, G.T. Hospital. The report shows that there was a tenderness at the site of an old operation. Although this may not be conclusive of an assault at that spot by the Investigating Officers, it is not the case of Investigating Officers either that this accused had this pain when they detained him. Be that as it may, the case of assault on Hamid Umer Patel, the accused No. 4 is somewhat different from the case of Vaghani, accused No. 5.
6. Mr. Patwardhan, who vehemently opposed the applications made by the accused urged that the quantity of narcotic drugs seized has international ramifications and the seizure is the result of international intelligence in regard to narcotic drugs. This may be a point which highlights the gravity of the import of narcotic drugs. But such passion or prejudice cannot be determinative in evaluation of the role of these accused. The investigating machinery may have good reasons to suspect the applicants but their role has to be evaluated on the basis of the evidence which the prosecution possesses. There is the telephone number from where messages were received presumably for the purpose of committing offences under the N.D.P.S. Act. The application for remand made by the Intelligence Officer on 10th September, 1989, merely bring out the statement of the accused No. 1 who is alleged to have admitted his participation in the “continuing conspiracy”. But he does not accuse the applicants of having been in possession of the seized narcotics or their involvement in transport of the narcotic drugs. According to him “the respondents Nos. 2, 3, 4 and 5 had helped him”. Now what kind of help was rendered is not clear. Unless a specific role in the crime is discernible from the evidence, it is difficult to secure a conviction. The statement of Hamid Umer Patel, accused No. 4 reveals that he was involved in export of Mandrex tablets. The accused No. 5 Vaghani has admitted that he supplied 225 Kgs. of Methaqualene powder. Now these are past transactions and there is no evidence to connect these two accused with what has been seized in this particular case. Significantly, there is no reference to any documentary evidence in the remand application. The next remand application was of 11th September, 1989 made to the Special Court appointed under the N.D.P.S. Act. No reference to any document to support the case against the accused is made. The Special Judge Mr. Pathan made an Order on 16th October, 1989 and rejected the application for bail.
7. The powers of this Court under section 439 of the Code of Criminal Procedure are not fettered by the provisions of the N.D.P.S. Act. These applications are under section 439 of the Code of Criminal Procedure. The powers of the High Court or the Court of Session under section 439 are considerably wider than the powers under section 437 of the Code of Criminal Procedure. The limitations placed in section 437 and the distinction drawn between non-bailable offences punishable with death and life imprisonment and other non-bailable offences with lesser penalty does not exist in section 439. There is no condition that bail shall be refused when there appear reasonable grounds for believing that the accused has committed an offence falling under the first category. The discretion granted to the Courts under section 439 is wholly unfettered and is wide enough to allow bail in any case even when charged with non-bailable offence of a most serious character. The only fetters of this power are the limitations which control the discretionary power vested in a Court, which discretion has to be exercised judicially and on well established principles.
But the N.D.P.S. Act is a special Act dealing with special class of crimes which is an international menace. Therefore the Legislature in its wisdom has enacted certain special provisions affecting the powers of the Trial Court in matter of granting bail. The cases are tribal by the Special Courts created under section 36 of the Act. Although the Magistrate before whom the person accused of crime under the N.D.P.S. Act is produced, may authorise his detention for a period not exceeding 15 days, the Magistrate is, upon expiry of the aforementioned period, obliged to forward such person to the Special Court. Under section 36A(c), the Special Court may exercise, in relation to the person forwarded to it under clause (b) of that section, the same power which a Magistrate may exercise under section 167 of the Code of Criminal Procedure. It is the Special Court who takes cognizance of the crime just as a Magistrate does in respect of other cases, under the Indian Penal Code. In other words, the Special Courts constituted under the N.D.P.S. Act perform the same functions in respect of the offences under the N.D.P.S. Act which the Magistrate performs in respect of other offences under the Indian Penal Code. Thus, a Special Court is not only a Trial Court but also the Court which exercises the functions similar to those of the Magistrate, such as remand of the accused, granting of bail, taking cognizance of the case and so on. The Legislature, aware of this special function which the Special Court performs, realised that the Special Court must also exercise the powers of granting bail in the manner a Magistrate exercises, under section 437 of the Code of Criminal Procedure. A logical step which the Legislature took was to enact section 37 of the N.D.P.S. Act and curtail the powers of the Special Court in the matter of grant of bail. The Special Court, notwithstanding anything contained in the Code of Criminal Procedure shall not release an accused on bail if the offence charged is punishable with imprisonment for a term of five years or more, unless, among other things, 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.” Such a limitation is altogether absent in section 439 of the Code of Criminal Procedure. Although the Special Court exercises the powers of the Sessions Court, its power to grant bail has been so curtailed by Section 37(1)(b)(ii) that it no longer enjoys the power to grant bail under section 439 of the Code of Criminal Procedure. Therefore, in reading section 439 of the Code of Criminal Procedure, so far as the N.D.P.S. Act is concerned, the words “or Court of Session” shall be deemed to have been omitted. Thus, section 439 retains the power of the High Court to grant bail in all cases including the cases under the N.D.P.S. Act and having regard to section 37, such power must be deemed to have been taken away from the Special Court. Consistently with this, the N.D.P.S. Act makes it abundantly clear in section 36(3) that nothing contained in that section shall be deemed to affect special power of the High Court regarding bail under section 439 of the Code of Criminal Procedure. It is thus clear that the power to grant bail to a person accused of commission of offences under the N.D.P.S. Act belongs only to the High Court. The Special Court’s powers to grant bail are limited by the condition laid down under section 37 of the Act.
8. In the present cases, the Applicants are Indian nationals. There is no evidence of physical possession of the narcotics seized by the Respondent No. 1. The evidence consists of the statements of the Applicants in which they “confessed” that they have committed the offences. The narcotics were not found in the possession of the Applicants, but they are sought to be connected with these drugs circumstantially through their statements. There is nothing on the record to connect the Applicants with the specific drugs seized in this case. These circumstances together with the probability that the confessional statements by the Applicants were secured by physical assault do not inspire confidence in the prosecution’s version. There is no allegation that the Applicants Indian nationals, are likely to abscond. The question of tampering with evidence does not arise. For these reasons, the continued detention of the Applicants appears punitive. It will not be proper to deny bail to the Applicants.
9. I therefore order that the Applicants in both the applications shall be released on bail in the sum of Rs. 2,00,000/- each with one surety each in the like amount. Liberty to deposit cash in lieu of bail bond. The Applicants shall attend the Court on every date of remand. The application for stay of this order made by Mr. Patwardhan is rejected.
10. Order accordingly.
