By TIOL News Service

MUMBAI, SEPT 07, 2017: THE applicants were arrested by the officers of Narcotics Control Bureau (NCB). They were produced before the Special Judge for NDPS cases at Mumbai from time to time and they continued to be in custody.

The IO of DRI preferred an application before the Special Court seeking permission to record the statements of the applicants. It was stated in the said application that the applicants have been party to manufacture of Mephedrone seized by NCB, Mumbai on 13th August 2015 and 14th August 2015 and their roles in the manufacture of psychotrophic substance seized by DRI on 4th August 2017 is required to be probed by DRI; that necessary permission be granted to record their statements on 23rd August 2017 and 24th August 2017.

The applicants contended that they are facing prosecution in NDPS Special Case No.28 of 2016 @ 103 of 2016 and are not concerned with the case which is purportedly effected by DRI. The applicants were willing to give their true and voluntary statements in the presence of their advocate in view of law laid down by Supreme Court in the case of Senior Intelligence Officer Vs. Jugal Kishor Samra =  2011-TIOL-58-SC-NDPS. It is further submitted that they are not concerned with the seizure and they apprehend third degree treatment at the hands of DRI officials, who would forcibly extort the confession. It was also stated that they intend to exercise their right of silence, however, they are willing to co-operate with the investigation.

The Special Judge had vide order dated 22nd August 2017 rejected this prayer made by the applicants to record their statements in presence of their advocates.

The applicants have, therefore, filed present applications before the Bombay High Court and reiterate the pleas made before the Special Judge for NDPS cases.

It is further submitted that the DRI is conducting investigation in the case registered against other persons and the said accused (who include brother and wife of the applicant) had allegedly disclosed involvement of applicants; that wife and brother of one of the applicant were subjected to ill-treatment by DRI officials, which fact was brought to the notice on the day they were produced before the Special Court for NDPS cases for remand before the Special Court, at Thane.

The applicants also rely on several decisions of Supreme Court, particularly D.K.Basu Vs. State of Bengal -   2002-TIOL-230-SC-MISC. and submitted that permission as sought for, can be granted in the light of Article 21 of the Constitution of India.

The counsel for the Revenue while vehemently opposing the reliefs sought by the applicants argued that the accused are required to be interrogated in a serious case and presence of their advocates in the vicinity cannot be permitted for smooth interrogation of the case.

After considering the documents on record and the submissions made, the High Court observed –

"…In the present case, the applicants are apprehending third degree treatment and also apprehending that their confessions will be extorted. Although Special Court has directed that the applicants may be medically examined before and after recording of statements, the coercion can be exercised as apprehended by the applicants in any manner. I do not think that any prejudice will be caused to the investigating agency in case advocate of applicants is permitted to remain present at a safe distance but not within the hearing distance, during the course of interrogation, as observed by Supreme Court in case of Senior Intelligence Officer Vs. Jugal Kishor Samra (supra). The advocate, of course, would not interfere in the course of interrogation and will not assist the applicants during the course of their interrogation by DRI officers. Such a permission can be granted in the light of several decisions of Supreme Court which are referred to hereinabove…"

The order dated 22 nd August passed by the Special Court under NDPS Act was set aside and applications were disposed of.

(See 2017-TIOL-1782-HC-MUM-NDPS)