ORDER

Heard learned counsel for the petitioner and learned APP for the State.

2. The petitioner seeks bail, apprehending his arrest, in connection with Banmankhi P.S. Case No. 456 of 2024, dated 16.12.2024, registered for the offences punishable under Sections 8(c), 20(b)(ii)(A) and 25 of the NDPS Act.

3. As per allegation, 970 gm Ganja was recovered from the possession of co-accused viz., Md. Majhar and Md. Rustam and in their confessional statements, it has transpired that they had purchased this contraband from the petitioner.

4. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been implicated in this case on account of inadmissible material which can not be converted into evidence during the trial. He further submits that nothing has been recovered from the possession of the petitioner. He further submits that the whole case against the petitioner is based on the confessional statement of the coaccused as recorded under Section 67 of the NDPS Act which is not legally admissible and cannot be converted into evidence during the trial of the petitioner. As such, the whole prosecution case against the petitioner is persecution and not prosecution and it is clearly violative of fundamental right to liberty which is being curtailed by the police officials.

5. It is also stated in paragraph no. 2 of the bail petition that the petitioner has not moved this Court earlier either for anticipatory bail or regular one in the instant case.

6. It has further been stated in paragraph no.3 of the bail petition that the petitioner has no criminal antecedents.

7. However, learned APP for the State vehemently opposes the prayer of the Petitioner for bail. He also refers to Section 30 of the Evidence Act to submit that confessional statement of co-accused is relevant and admissible against the accused petitioner.

8. I considered the submission advanced by both the parties and perused the material on record.

9. I find that the whole case of the prosecution is based on confessional statement of co-accused as recorded under Section 67 of the NDPS Act.

10. Here it is required to refer to Tofan Singh vs. State of T.N., 2021 (4) SCC 1 wherein Hon’ble Supreme Court has clearly held that the confessional statement of the accused as recorded under Section 67 of the NDPS Act is not admissible observing that the powers conferred on the empowered officers under Sections 41 and 42 of the NDPS Act 1985 read with Section 67 of the NDPS Act 1985 are limited in nature conferred for the purpose of entry, search, seizure and arrest without warrant along with safeguards enlisted thereof. The “enquiry” undertaken under the aforesaid provisions may lead to initiation of an investigation or enquiry by the officers empowered to do so either under Section 53 of the NDPS Act 1985 or otherwise. Thus, the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

11. In recent judgement of Najmunisha vs. State of Gujarat, 2024 SCC OnLine SC 520, AIRONLINE 2024 SC 306, Hon'ble Supreme Court has again held, relying upon Tofan Singh Case (supra) that a statement recorded under Section 67 of the NDPS Act cannot be considered to convict an accused person under the NDPS Act 1985.

12. Here it is also relevant to refer to Dipakbhai J. Patel vs. State of Gujrat, (2021) 16 SCC 547. Though this judgment has been delivered by Hon’ble Supreme Court in the context of framing of charge, the observation made herein is relevant even in the present context. Here, Hon’ble Apex Court has held that the material on the basis of which charge could be framed must be such material which could be translated into evidence during the trial. The relevant part of the judg