1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1566 OF 2009 Mrs.Razia Mehraaz Khan @ Bhabhi .. Applicant. Vs. 1.S.M.Phansekar, Intelligence Officer, Narcotic Control Bureau, Mumbai .. 2.State of Maharashtra .. Respondents. Mr.P.D.Vishwasrao i/b U.V.Arolkar for the applicant. Mr.S.S.Pednekar A.P.P. for the State. Mr.Vinod Joshi for respondent no.1. Coram: D.B. BHOSALE, J. Dated : 7TH JULY, 2009 P.C. Heard learned counsel for the applicant and respondent no.1 and learned A.P.P. for the State. 2. The applicant is seeking bail in NDPS Special Case No. 106 of 2008 arising from C.R.No.3 of 2008 of Narcotic Control Bureau (for short “the NCB”). The crime has been registered against the applicant and others for having allegedly committed an offence punishable under sections 8(c) read with sections 20(c), 29 and 30 of Narcotic Drugs and Psychotropic Substances Act, 1985, (for short “NDPS Act”). 3. Mr.Vishwasrao, learned counsel for the applicant prayed for bail on two grounds. Firstly, he submitted that the applicant was not in possession of the contraband articles (27.5 Kgs of 2 Hashish) when the raid was carried out, and secondly, he submitted that there is unexplained breach of mandate of Article 21 and sub-clause (2) of Article 22 of the Constitution. Under these provisions it is necessary that every person who is arrested or detained in custody shall be produced before the learned Magistrate within a period of 24 hours of his arrest and that in no case such a person shall be detained in custody beyond the said period of 24 hours without the authority of a Magistrate. He submitted that in the present case the accused persons were apprehended and arrested at 7 am on 23.3.2008 and they were produced before the Magistrate at 3.55 pm on 24.3.2008 which was beyond the period of 24 hours from the time of the arrest. He placed heavy reliance upon the judgment of this court in support of this submission in Suaibo Ibow Cassama v. Union of India and Anr. 1994(1) Bombay Cases Reporter 64. 4. The prosecution case, in short, is that on receipt of an information through reliable source, a watch was kept on movements of the applicant and the co-accused and when the applicant and her husband were about to receive the bag of contraband articles they were apprehended. This happened on 23rd March, 2008 at 7 am. Immediately after the accused were apprehended a panchnama was drawn. Thereafter, they were taken to the NCB office, where their statements under section 3 67 of NDPS Act were recorded and at 5.00 pm they were put under arrest. I perused the seizure panchnama and the statement of the applicant and I am satisfied that there are reasonable grounds for believing that the applicant is guilty of the offence under the provisions of NDPS Act. In my opinion, the applicant is not entitled for bail on merits. 5. Insofar as the second submission is concerned, the learned counsel for the applicant placed heavy reliance upon the judgment of this court in Suaibo Ibow Cassama (supra). In that case, the petitioner was charged with an offence 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 NDPS Act. The petitioner was arrested in the night between 1st and 2nd November, 1991. Heroin weighing about 4.5 Kgs. was found concealed in his suit-case. The seizure panchnama was conducted between 5.30 am and 8.00 am on 2nd November, 1991. Immediately thereafter, his statement was recorded. The learned Judge has observed that 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 NDPS Act. Despite the above, the petitioner was produced before the Chief Metropolitan Magistrate as late as on 4th November, 1991, at about 3 pm. The arrest was shown on 3.11.1991. However, no time was mentioned about the arrest 4 nor was there any separate panchnama or any other formal document recording his arrest on 3.11.1991 was drawn. It was not disputed before the learned Magistrate that in the face of seizure panchnama and the statement of the petitioner there was enough material before the Customs Officer to form a belief that the petitioner was guilty of an offence punishable under section 135 of the Customs Act. There was also no dispute that the restrictions imposed on the petitioner were total ever-since he was apprehended at the airport. It is against this backdrop it was held that there was clear breach of provisions of sub-clause (2) of Article 21 of the Constitution which requires that every person who is arrested shall be produced before the nearest Magistrate within a period of 24 hours of his arrest excluding the time necessary for the journey from the place of his arrest to the court of Magistrate and that in no case such a person shall be detained in custody beyond the said period of 24 hours without the authority of a Magistrate. It was further observed that there was no explanation as to why the petitioner was not produced before the learned Magistrate in the City of Mumbai on 3rd November, 1991. In short, it was held that the detention of the petitioner beyond permissible limit of 24 hours is in clear violation of the fundamental rights guaranteed under Article 21 of the Constitution and on that limited count the bail was granted to the petitioner. 5 6. As against this, in the present case the applicant was apprehended at 7 am on 23.3.2008. After the accused were apprehended, panchnama was drawn and thereafter the applicant and the other accused were taken to NCB office. The time, when they reached the NCB office, is not available on record. However, it appears from the panchnama dated 23.3.2008 that it was concluded at 11.05 hours at the same place where the accused were apprehended. After the panchnama was drawn at Borivali, East, the applicant and the co-accused were taken to the office of NCB, Mumbai. Thereafter, on reaching the office of NCB, statements of the accused persons under section 67 of NDPS Act were recorded. It was, therefore, contended that on perusal of the statements of the accused persons the investigating officer prima facie believed that the applicant had disclosed her involvement in the commission of offence alleged and therefore, he effected arrest at 5 pm on 23.3.2008. Thus, looking to the facts of the present case, it was submitted, that there is difference between Suaibo Ibow Cassama’s case (supra) and the present case. The case for effecting arrest in the present case was clearly made out only after the statement of applicant under section 67 of NDPS Act was recorded in the office of NCB and not at the place where the accused were apprehended. Having regard to the facts of the present case, it cannot be said that a case for 6 immediate arrest, at the place where the accused were apprehended, was made out since all the formalities could not be complied with there, such as drawing of a panchnama and recording of a statement. In other words, no case for immediate arrest was made out at Borivali where the accused were apprehended and where only panchnama was drawn. It is only after recording statement of the applicant under section 67, she was placed under arrest at 5.00 pm on 23.3.2008. There is no dispute that the applicant was produced before the learned Judge at 3.55 pm on 24.3.2008. Thus, prima facie, it is clear that after taking the applicant to the office and recording her statements the investigating officer was convinced that an offence punishable under the provisions of NDPS Act had been committed and, therefore, arrest was affected at 5.00 pm on 24.3.2008 in the NCB office. From perusal of section 43 it is clear that a person can be detained and searched if the investigating officer has reason to believe that an offence is committed under the provisions of NDPS Act and if such person has any narcotic drug or psychotrophic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Thus, in the process, the act of detention and search are separated from the act of arrest. Detention and search is a part of initial enquiry/interrogation, while the arrest is only after 7 the investigating officer is convinced or has reason to believe that the person has committed an offence punishable under the provisions of NDPS Act. In the circumstances the judgment in Suaibo Ibow Cassama’s case (supra), in my opinion, has no application to the facts of the present case. The applicant, in my opinion, is not entitled for bail even on this ground. Hence the application is rejected. At this stage learned counsel for the applicant prays for direction to the trial Court to complete the trial expeditiously. Having regard to overall facts and circumstances of the case the trial is expedited. While passing this order I shall not be understood to have expressed any opinion on merits of the case and the trial Court shall deal with the case uninfluenced by the observations made in this order. Application is disposed of. (D. B. Bhosale, J.)