Point of law: Statement recorded by the respondent under Section 67 of the NDPS Act can be used limited to the extent permissible under Section 27 of the Indian Evidence Act.

JUDGMENT :

1. By this petition the petitioner seeks regular bail in Sessions Case No. 156/2019 under Sections 22/23/29 NDPS Act on a complaint filed by the respondent/NCB.

2. Learned counsel for the petitioner contends that the petitioner is a 23 old, Syrian national staying in Delhi as refugee pursuant to the registration and verification by the UNHCR since 2015 and has been falsely implicated in case No. VIII/28/DZU/2018 of the respondent. Being a refugee there is no likelihood that the petitioner can flee this country. The petitioner is in custody since 27th September, 2018 and the trial is likely to take a lot of time. No recovery has been made from the petitioner and thus no case is made out against the petitioner. Even on the personal search and search of the house of the petitioner nothing incriminating was recovered.

3. Learned counsel for the petitioner contends that the only evidence linking the petitioner to the contraband recovered is the statement recorded under Section 67 of the NDPS Act by the officer of the respondent which in view of the decision of the Hon’ble Supreme Court in Toofan Singh Vs. State of Tamil Nadu (2021) 4 SCC 1 is inadmissible in evidence and cannot be used to implicate the petitioner. The statement made by the co-accused Arjun Elawadi stands retracted. The co-accused Arjun Elawadi who was the alleged manufacturer and supplier of the banned substance who ultimately, financially gained from the alleged transaction has already been granted regular bail by the Court and hence on parity the petitioner is also entitled to bail. Further the so-called voluntary statement recorded by the NCB under Section 67 of the NDPS Act cannot be voluntary for the reason the petitioner neither understands Hindi nor English and admittedly no translator was made available to the petitioner at the time of recording of the statement. While granting regular bail to Arjun Elawadi, the learned Special Judge noted that the said applicant has not indulged in manufacture, sale or purchase of the contraband tablet after the notification dated 13th July, 2018 and since the drug has allegedly been manufactured and sold prior to the date of notification, no offence can be made out.

4. Case of the prosecution is that on 24th September, 2018 a secret information was received by NCB officer that a Turkish national, namely, Erbil Han aged about 27 years is departing from IGI Airport by Turkish Airlines flight 717 at 0615 hours and was suspected to have concealed huge quantity of narcotics or psychotropic drugs in his baggage. After necessary permission from Superintendent, a team was deputed and Erbil Han was intercepted, however nothing was recovered from his personal search. When his red colour trolley bag was opened it was found full of tablets which were kept in bundles of 10 strips and bound with rubber band. One of the strips was taken out and examined. It contained Tramadol Hydrochloride tablet with manufacturing date of July 2017 and expiry date of June 2020. In total 6500 strips with each strip containing 10 tablets were recovered. One strip weighed around 4 grams. Thereafter, two samples of two strips each containing 10 tablets were taken out and put in a zip lock pouch which was then kept in a white colour envelope separately and marked as ‘A-1’ and ‘A2’. Remaining tablets were put inside the same red colour trolley bag and put in a gunny bag and marked as ‘A’. Thereafter, another black colour trolley bag of Erbil Han was opened which also contained 1900 strips of 10 tablets each with manufacturing of July 2017 and expiry of June 2020. The said tablets were of Tramadol X – 225. Similarly, two strips were kept as samples and rest of the recovery was kept back in the trolley bag and kept in a gunny bag duly sealed and marked as ‘B’.

5. Statement of Erbil Han under Section 67 of the NDPS Act was recorded in the presence of a translator. He disclosed the name of the petitioner who allegedly gave him tablets on the night of 23rd