The admissibility of evidence under Section 67 of the NDPS act and the relevance of other circumstantial evidence in establishing complicity.

JUDGMENT

C.V. Bhadang, J. - By this application, the applicant (accused no. 4) seeks release on bail in Crime No. 183/2021 of P.S. Pernem (now being investigated by the NCB) under Section 20(b)(ii)(a), 22(c) and 29 of the NDPS act. The aforesaid crime is registered on the basis of the complaint dated 25.11.2021 lodged by PSI, Vivek Halarnkar of P.S. Pernem. according to the informant in a raid conducted on 25.11.2021, on prior information, 49.2 grams of ganja, 15.7 grams of estacy tablets and 19.10 grams of MDMa was recovered from accused nos. 1, 2 and 3, namely, Shabab Khan, Imran Khan and Niyazuddin.

2. During the course of investigation, the statement of these accused persons were recorded under Section 67 of the NDPS act, in which, it was disclosed that the contraband was procured from the applicant, who is the resident of Bengaluru. according to the prosecution, the statement of the present applicant also came to be recorded under Section 67 of the NDPS act and during the course of investigation, it was disclosed that there were whatsapp chats between the applicant and accused no. 1 about sale and purchase of ganja. These whatsapp chats were during the period from November 2020 and January 2021.

3. The prosecution is also relying upon two Bank entries dated 28.10.2021 for Rs. 32,000/- and Rs. 4,999/- dated 29.10.2021 in order to claim that the applicant was associated with the accused in the matter of sale and purchase of the said contraband. The applicant was arrested on 22.02.2021 and is in custody since then. The investigation is stated to be in progress.

4. I have heard the learned Senior Counsel for the applicant, the learned assistant Solicitor General of India for the respondent no. 3 and the learned additional Public Prosecutor for the respondent nos. 1 and 2.

5. With the assistance of the learned Counsel for the parties, I have gone through the record.

6. It is submitted by the learned Senior Counsel for the applicant that the statement under Section 67 of the NDPS act has been held inadmissible by the Supreme Court in Tofan Singh Vs. State of Tamil Nadu, (2013) 16 SCC 31, wherein the Officers of the NCB are held to be the Police Officers. Further reliance is placed on the decision of the Supreme Court in Bharat Chaudhary Vs. Union of India, 2021 SCC Online SC 1235, in order to submit that the Supreme Court has held that even for the purpose of bail, the prosecution cannot rely upon the statement under Section 67 of the NDPS act. It is submitted that the whatsapp chats are about one year prior to the recovery of the contraband from the co-accused and the Bank entries are not shown to be related to any such transaction of sale and purchase of ganja. Reliance is also placed on the decision of this Court in Shashikant Prabhu Vs. Rahul Saini & another, 2020 SCC Online Bom 11226.

7. The learned assistant Solicitor General of India submitted that notwithstanding that the statement under Section 67 having been held to be inadmissible, the same can be used as an investigating aid tools. On the basis of the statement under Section 67 of the NDPS, the prosecution could lead to the applicant. It is submitted that during further investigation, the whatsapp chats surfaced, which are sufficient to show the complicity of the applicant in the offence. It is submitted that the reliance placed in the case of Shashikant Prabhu (supra) is misplaced in as much as in that case one of the co-accused was serving with the other co-accused. In that case, it was held that the Bank transactions may not lead to the inference of commission of a crime.

8. I have carefully considered the rival circumstances and the submissions made.

9. admittedly, there is no recovery of any contraband from the present applicant. The recovery was from accused nos. 1, 2 and 3. The prosecution has relied on three circumstances, (i) statement under Section 67 of the NDPS act of the co-accused; (ii) the whatsapp chats and (iii) the Bank entries as referred to above to show