Johann Tuchler vs Superintendent of Customs, Air Intelligence Unit

A.S. Pachhapure, J.—The facts reveal that the Superintendent of customs, Air Intelligence Unit, Bangalore, received credible information that the a parsons including the Petitioner are drug carriers, currently in Delhi, would travel to Bangalore and then proceed to United Kingdom along with the suitcases each containing 50 Kgs of Hashish it was also informed that the Hashish can ha seized from the drug carriers by checking luggage thoroughly. It is in pursuance of this information, that the customs authorities with the assistance of the witnesses and other staff want to the international Air Port, Bangalore, on 01.11.2009 at about 4 p.m., and intercepted the Petitioner, checked his bag and as it did not contain any narcotic drug, they secured the luggage receipt and one bag was already shifted for loading in the plane and therefore, they secured the other bag and after search, they found Hashish in the bottom of the said bag and after weighing the a awe, it found to the 14.51 Kgs of narcotic drug and it was tested with the help of Narcotics Testing Kit and it gave a positive result that the matarial was Hashish, which is a Narcotic drug banned under the provisions of N.D.P.S. Act, 1965. It is thereafter that a haphazard vas drawn on the same day in between 4-7 p.m., the statements of the witnesses vary recorded and after completion of enquiry, the Petitioner was arrested by the authorities for contravention of the provisions of the N.D.P.S. Act and it is in these circumstances, that the present petition has been filed seeking bail having been arrested for the above said crime.

It is vehemently contended by the learned Counsel that the Petitioner vas arrested by the authorities at about 4 p.m., on 01.11.2009 and in his liberty vas curtailed by restraining him from moving elsewhere and he having been produced before the Magistrate on 03.11.2009 at about 4.25 p.m., the non-production of the Petitioner before the court within 24 hours contravenes Article 22(2) of the Constitution of India and also the provisions of the Code of Criminal Procedure and in the circumstances, it is his submission that the Petitioner is entitled to the bail sought for.

At the same time, learned Counsel far the Respondents submits that the arrest of the Petitioner is not on 01.11.2009, but ha was arrested at about 2 p.m., on 02.11.2009 and his production before the Court was initially done toy mistake before the Special Judge for the NDPS Cases and as the Special Judge directed them to produce the Petitioner before the Magistrate, the Petitioner was to be taken to Devanahalli and was produced at about 4.25 p.m. on 03.11.09. In these circumstances, it is his contention that excluding the time taken for the journey, the Petitioner has bean produced before the magistrate within 24 hours and therefore the Petitioner cannot claim bail on this ground.

Having heard the learned Counsel for both sides, it is relevant to refer to the arrest memo, a copy of which is produced by the Petitioner at Annexure-C and it reveals that the Petitioner was arrested at 14.20 hours on 02.11.2003 under the provisions of the N.D.P.S. Act, 1985. So, accordingly, copy of the arrest memo was given to the Petitioner and the same has bean produced by him, But, anyhow, as could be seen from the contents of the arrest memo, it is recited that "Hashish which came to be sensed at Bangalore International Air Port, Bangalore on 02.11.2009 under mahazar dated 02.11.2009". So, according to the learned Counsel, the saisura has bean wrongly mentioned as 02.11.2005 and if the date is considered as 01.11.2009, the arrest will have to be presumed at the time ox the mohair i.e., in between 4 to 7 p.m., on 01.11.2009 and therefore, he submits that the production is beyond 24 hours.

But to answer the question as to when really the Petitioner was arrested by the authorities, it is necessary to know the meaning of ''arrest'' and on this aspect of the matter, the Counsel has relied upon the decision of the Bombay High Court in the case of Ashak Hussain Allah Detha Alias Siddique and another Vs. Assistant Collector of Customs (P.), Bombay and another, , which reads as under:

The word "arrest" is a term of Article It starts with the arrant taking a person into his custody by action or words restraining him from moving anywhere beyond the arrester''s control, and it continues until the person so restrained is either released from custody or, having been brought before a Magistrate, is remanded in custody by the Magistrate''s Judicial Act, in substance, "arrest" is the restraint on a men''s personal liberty by the power or colour of lawful authority in its natural sense also "arrest" means the restraint on or deprivation of one''s personal liberty, it stands to reason therefore, that what label the investigating officer affixes to his act of restraint is irrelevant. For the same reason, the record of the time of arrest is not an index to the actual time of arrest. The arrest commences with the restraint placed on the liberty of the accused and not with the time of "arrest" recorded by the Arresting officers.

So, as could be seen from the observations made by the High court of Bombay, "arrest" is a tern which has to be gathered on the basis of the acts and circumstances. Even Section 46 of the Code of Criminal Procedure provides a procedure as to how an arrest is to be made by the authorities and far the purpose of convenience, the said provision is extracted hereunder:

Arrest how made: (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

So, as could be seen from the provisions stated supra, an arrest by the police officer or other person shall be by actually touching the body or confining the body of the person to be arrested and if this requirement is fulfilled, then it could be inferred that there is an act of arrest by the police or the authorities concerned. Therefore, in substance, the arrest is restraint of a man''s personal liberty, by the power or colour of lawful authority. It is in this context that Article 22(2) of the constitution of India provided a period at 24 hours to produce the accused before the court from the time of his arrest excluding the time taken for the journey to the Court in which he is to be produced.

The learned Counsel also relied upon the decision of the Bombay High Court in the case of Suaibo Ibow Casamma v. union of India and Anr. II (1994) CCR 925, wherein it has been held as under:

If that be so, nothing prevented the investigating agency to produce the accused before the Magistrate within the stipulated period of 24 hours. This is not only the mandate of Section 57 and Section 167 of the Code of Criminal Procedure but this is the mandate of Articles 21 and 22 of the Constitution of India

In the decision referred to supra, the accused was intercepted on 02.11.09 and he was produced before the Magistrate on 04.11.09 and in these circumstances, the High Court held that there is violation of the provisions of Sections, 57 and 167 of the Code of Criminal Procedure and Article 22(2) of the Indian constitution.

The Counsel also relied upon the decision of the Apex Court reported in the case of Manoj Vs. State of Madhya Pradesh, , wherein, taking into consideration the provisions of Section 57 of the Code of Criminal Procedure it was held that the police officer is forbidden from keeping an arrested person beyond 24 hours without the order of the Magistrate and that it is a constitutional mandate that no person shall be deprived of his liberty except in accordance with the procedure established in law.

So, in the above said circumstances, on the facts of the case, in the decisions referred to supra of High Court of Bombay, the accused was released on bail.

The word "arrest" when used in its ordinary and natural sense means, the apprehension or restraint or the deprivation of one''s personal liberty and the question as to whether the person is under arrest or not, depends not on the legality of the arrest, but on whether ha has bean deprived of his personal liberty to go Where he pleases. The essential elements to constitute an arrest are that there must be intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law.

So, as held by the High Court of Madras in the decision reported in 1984 Cri.LJ 134 (Roshan Beevi and Ors. v. Joint Secretary to Government of Tamil Nadu and Ors.), the High Court considered the word ''arrest'' and ultimately, was of the opinion that intention to arrest a person must be explicit to hold and to prove that the person has been arrested.

So, in the background of the decisions referred to supra, now the question arises for consideration is as to whether the Petitioner is said to have been arrested on 01.11.09 at 4 p.m., when he was intercepted by the customs authorities, or whether it is after the seizure of the narcotic drug or subsequently, as per the arrest memo will have to be considered.

The facts reveal that after the arrest, the Petitioner was produced first before the special Judge, N.D.P.S. court i.e., the 33rd city Civil and Sessions Judge, Bangalore, on 03.11.09 at 12.25 p.m., and the learned Special Judge having observed that he has not received any papers pertaining to the cast of the Petitioner, observed that the Petitioner has to be produced before the Magistrate concerned under the provisions of Section 36A(b) of the N.D.P.S. Act and directed to produce before the jurisdictional Magistrate.

A perusal of the order reveals that on the date, the Superintendent of Customs who was present before the court made a submission that he wants to produce the accuracy i.e., the Petitioner before the Court along with the remand application. But the request of the officer was rejected on the ground that the Petitioner was to be produced before the Magistrate concerned. So, as could be seen from this order of the learned special Judge, it could be inferred that the Petitioner was produced on that day before the Court but as the learned Special Judge did not accept the remand application and directed the officer to produce the Applicant before the Magistrate, later the Petitioner was produced before the JMFC, Devanahalli, on the same day at about 4.25 p.m. So, now assuming for the time being that the accused vas produced before the Magistrate concerned at 4.25 p.m., on 03.11.09, it is necessary to calculate whether from the time of arrest the production is beyond 24 hours or within. Nov, in this regard, Counsel for the Petitioner has produced a copy of the order sheet at Annexure-0 maintained by the JMFC, Devanahalli and it reads as under:

Accused Shri Johann Tuchler s/o Hens Tuchlar is produced before me at 4.25 pm brought R. Ramamurthy, Customs Superintendent along with remand application to remand the accused to Judicial Custody for 15 days. On being questioned accused does not complain of ill treatment by the police. Accused submits that he was arrested about 2.00 pm at Devanahalli Airport Sri. BSS and AKJ files for accused. Accused is remanded to J.C. till 16/11/2009.

So, from the recital made in the order sheet of the learned Magistrate, the accused-Petitioner herein made a submission before the Magistrate that he was arrested at about 2 p.m., at Devanahalli Air Port and 2 p.m., cannot be on 01.11.09 as the Petitioner was intercepted at 4 p.m. and therefore, it has to be considered that the accused himself made a submission before the Court that he vas arrested on 02.11.09 At 2 p.m. So, in this context, the very submission of the Petitioner before the Magistrate leads to an inference that he vas arrested at 2 p.m., on 02.11.09 and this submission of the Petitioner before the Magistrate is an admission with regard to time of arrest. So, excluding the time taken for the journey, the production of the Petitioner has to be within 24 hours. Admittedly, Devanahalli Court is at a distance of not less than 40 jobs and in this context, after producing the Petitioner before the Special Judge, the officers took the Petitioner to the Devanahalli court and produced him at 4.15 p.m. So, to complete the formalities regarding the production of the Petitioner before the special Judge and then proceeding to Devanahalli, the time taken from the court of the special Judge, Bangalore to Davanahalli will have to be excluded in computing the period of 24 hours. So, when a person arrested has to be taken to the Court, I an of the opinion that about 4 hours time is necessary to reach the court at Davanahalli.

Now, as per the arrest memo produced at Annexure-c, the time of arrest is shown as 14.20 p.m., and it is on 02.11.2009 so, this timing is nearer to the time admitted by the Petitioner before the Magistrate to the effect that he was arrested at 2 p.m., and therefore the perusal of the order sheet of the Magistrate and the copy of the exit memo lead to irresistible conclusion that the Petitioner was arrested on 02.11.09 at 14.20 hours. Nov, so far as the question whether the arrest is on 01.11.09 between 4 to 7 p.m., during the mahazar, it is relevant to refer to the provisions of Section 67 of the N.D.P.S. Act and the same is extracted hereunder for the purpose of convenience:

Power to call for information, etc.- Any officer referred to in Section 42 who is authorized 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 there under.

(b) Require any person to produce or deliver any document of thing useful or relevant to the enquiry;

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

So, under the above said provision, the customs officers have an authority to hold an enquiry before confirming as to whether the person has committed an offence or not it means that the Petitioner was intercepted at 4 p.m., on 01.11.09, but it was for the purpose of an enquiry as to whether he was carrying Hashish in the bag on that day, the bag was seized and the manazar was completed at about 7 p.m. It was also necessary far the authorities to have the confirmation that the seized substance was Hashish, the drug which has been prohibited under the provisions of the N.D.P.S. Act, it was necessary for them to hold the test, record the statement of the witnesses and after confirmation that the drug was being carried by the Petitioner is "Hashish", they have to take a decision to arrest. It is after an enquiry that the authorities if satisfied will coma to the conclusion that a crime is committed and they would proceed for arrest. Therefore, it is in this context, that the arrest memo was issued by the customs authorities arresting the Petitioner on 02.11.09 at 14.20 p.m. So, in view of this arrest, the Petitioner made a submission before the Magistrate that he was arrested at 2 p.m. So, taking into consideration the principles laid down by the Apex Court and also the High Courts referred to sour, the intention to arrest could be inferred only on the basis of the arrest memo and the admission of the Petitioner before the Magistrate to the Affect that he vas arrested at 2 p.m. on 02.11.09, so, if this timing is once confirmed, then excluding the time taken for the journey from the place of the arrest to the Court, before whom he is to be produced, I am of the opinion that the production vas within 24 hours.

Further more, it is relevant to note that there vas a bonafide mistake on the part of the officers. They produced the Petitioner first before the N.D.P.S. Court at 12.25 p.m. and thereafter produced him before the Court at Devanahalli in pursuance of the directions of the special Judge. So, this is a bonafide mistake committed by the authorities and even otherwise the production of the Petitioner before the Magistrate is within 24 hours. Hence, I am of the opinion that the Petitioner cannot be released on bail on the ground stated supra.

So, now to consider the case on merits, it is relevant to note that in a murder case the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to a number of innocent young victims, who are vulnerable; it causes a deadly impact on the society; even if they are released on bail, in all probability, they would continue their nefarious activities of trafficking and dealing in intoxicants clandestinely.

So, in the circumstances, as the Petitioner was found in possession of 14.51 K.gs of Hashish, I an of the opinion that the Petitioner is not entitled to the bail sought for.

In the result, petition is dismissed. However, the learned Special Judge, before whom the case is pending for the last more than 11/2 years, is directed to expedite the trial and dispose of the same in accordance with law.