Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 1918

IN THE HIGH COURT OF DELHI AT NEW DELHI
Jasmeet Singh, J.
Jasbir Singh – Appellant
Versus
Narcotics Control Bureau – Respondent
Bail Appln. 1120 of 2022
Decided On : 13-01-2023

Advocates appeared:
Sidharth Agarwal, Senior Advocate with Abhir Datt, Vikram Hegde, Sowjhanya Shankaran, Ms. Rudrali Patil, Chitwan Sharma, Debayan Gangopadhyay, Jagrit Vyas, Advocates, for the Applicant.
Subhash Bansal Senior SC with Raghav Bansal, Advocate, for the NCB.

Statements recorded under Section 67 NDPS Act are inadmissible being hit by Section 25 IEA, and the only way to make any part of such statements admissible is by way of Section 27 IEA which creates an exception and allows only such part of a confessional statement, being information leading to discovery of some fact not previously in the knowledge of the police officer.

Headnote:
BAIL - NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 8(C)/20(B)(II)(A)/20(B)(II)(B)/21(B)/22(C)/23/29 - APPLICANT ACCUSED NO.4 IN COMPLAINT FILED BY RESPONDENT BEFORE SPECIAL JUDGE (NDPS), PATIALA HOUSE COURTS, NEW DELHI - ARRESTED ON 01.09.2021 - IN CUSTODY SINCE THEN - NO RECOVERY OF CONTRABAND FROM APPLICANT - NO RECOVERY FROM ANY PREMISES CONTROLLED BY APPLICANT - SHIPMENTS INTERCEPTED ON BASIS OF APPLICANT'S INFORMATION CONTAINED CANNABIS PASTE (SOLID) WEIGHING 39.700 GRAMS AND CANNABIS LIQUID WEIGHING 2.530 GRAMS - SMALL QUANTITY - NO MONEY RECEIVED BY APPLICANT IN FORM OF BITCOIN CURRENCY AS PER NCB, HELSINKI (FINLAND) - APPLICANT'S STATEMENTS RECORDED UNDER SECTION 67 NDPS ACT CANNOT BE LOOKED INTO AS PER JUDGMENT IN TOFAN SINGH V. STATE OF TAMIL NADU, (2021) 4 SCC 1 - SECTION 27 OF INDIAN EVIDENCE ACT (IEA) NOT APPLICABLE AS IDENTICAL STATEMENT OF CO-ACCUSED SHRADHA SURANA IS ALREADY ON RECORD HAVING BEEN MADE PRIOR IN TIME TO THAT OF APPLICANT - NO RECOVERY OF COMMERCIAL QUANTITY OF CONTRABAND AT INSTANCE OF APPLICANT - APPLICANT ENTITLED TO BAIL AS PER SECTION 37 NDPS ACT - APPLICATION ALLOWED.
Fact of the Case:

The Applicant, accused No.4 in the complaint filed by the Respondent before the Special Judge (NDPS), Patiala House Courts, New Delhi, was arrested on 01.09.2021 and has been in custody since then. There was no recovery of contraband from the Applicant or from any premises controlled by him. The shipments intercepted on the basis of the Applicant's information contained cannabis paste (solid) weighing 39.700 grams and cannabis liquid weighing 2.530 grams, which is a small quantity. As per NCB, Helsinki (Finland), no money was received by the Applicant in the form of bitcoin currency. The Applicant's statements recorded under Section 67 of the NDPS Act cannot be looked into as per the judgment in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1. Section 27 of the Indian Evidence Act (IEA) is not applicable as the identical statement of co-accused Shradha Surana is already on record having been made prior in time to that of the Applicant. There was no recovery of commercial quantity of contraband at the instance of the Applicant.
Finding of the Court:

The Court found that the Applicant was entitled to bail as per Section 37 of the NDPS Act. The Court observed that there was no recovery of contraband from the Applicant or from any premises controlled by him. The shipments intercepted on the basis of the Applicant's information contained cannabis paste (solid) weighing 39.700 grams and cannabis liquid weighing 2.530 grams, which is a small quantity. The Court also noted that as per NCB, Helsinki (Finland), no money was received by the Applicant in the form of bitcoin currency. The Court further observed that the Applicant's statements recorded under Section 67 of the NDPS Act cannot be looked into as per the judgment in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1. The Court also found that Section 27 of the Indian Evidence Act (IEA) is not applicable as the identical statement of co-accused Shradha Surana is already on record having been made prior in time to that of the Applicant. The Court concluded that there was no recovery of commercial quantity of contraband at the instance of the Applicant.
Issues: 1. Whether the statements of the Applicant are inadmissible in evidence and they do not lead to discovery of any `fact' in terms of Section 27 of the Indian Evidence Act, 1872? 2. Whether recovery involving commercial quantity are attributable to the Applicant?
Ratio Decidendi: 1. The statements of the Applicant are inadmissible in evidence as they are hit by Section 25 IEA and the only way to make any part of such statements admissible is by way of Section 27 IEA which creates an exception and allows only such part of a confessional statement, being information leading to discovery of some fact not previously in the knowledge of the police officer. In the present case, none of the statements of the Applicant lead to any discovery of a `fact', and hence, the statutory bar to their admissibility and reliability is attracted. 2. The recovery of commercial quantity of contraband from Accused No. 7/Suvashish Roy and Accused No.10/Krunal Golawala cannot be attributed to the Applicant as the same was duly in the knowledge of the Respondent prior to disclosure statement of the Applicant. The only recovery which can be attributed to the Applicant is one involving small quantity.
Final Decision: The Court allowed the application and granted bail to the Applicant on certain conditions.

JUDGMENT

Jasmeet Singh, J. This is a bail application in case arising out of NCB Case No. VIII/46/DZU/2021 registered by PS NCB-DZU, Delhi for the alleged commission of the offences punishable under Sections 8(c)/20(b)(ii)(A)/20(b)(ii)(B)/21(b)/22(c)/23/29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 ("NDPS Act").

2. The Applicant herein is the accused No.4 in the complaint dated 31.01.2022 filed by the respondent before the learned Special Judge (NDPS), Patiala House Courts, New Delhi.

3. The Applicant is a resident of Mogra, Hooghly, West Bengal and is about 26 years old.

4. It is stated in the application that the Applicant handles and manages a transport business named `Singh Transports' which is owned by his grandfather. It is stated that there are other 5 cases registered by the NCB, Kolkata, wherein the Applicant is arraigned as an accused but all of them involve a quantity of ganja being less than `small quantity'.

5. The Respondent is the Delhi Zonal Unit (hereinafter "DZU") of the Narcotics Control Bureau (hereinafter "NCB"), which arrested the Applicant on 01.09.2021.

6. As per the case of the respondent, on 04.08.2021, a letter containing secret information was received by NCB-DZU, informing them about several suspected parcels detected by the NCB- KZU at Foreign Post Office, 12, Kiran Shankar Roy Road, Kolkata, West Bengal.

7. The letter stated that said parcels had come from the United States of America (USA) and were lying at the Post Office for further delivery to various locations in India.

8. One, Ms. Tareena Bhatnagar was arrested, who disclosed that she had ordered the parcels on directions of one, Mr. Sarvothaman Guhan (Accused No.1) who was intercepted at the Indira Gandhi International Airport (IGI), Delhi and on his disclosure, his travelling bag was searched which led to recovery of `high quality cannabis flower top' weighing 30 grams, 2 Ecstasy (MDMA) pills weighing 0.45 grams and crusher used for crushing cannabis.

9. On 05.08.2021, Mr. Sarvothaman Guhan made a disclosure statement and on the basis of the same, the house of the accused No.2 i.e. Rahul Mishra was searched at Faridabad wherein 27 pouches of ganja weighing 1.05 kg was recovered.

10. The respondent conducted a fresh search at the residence of Mr. Sarvothaman Guhan and recovered imported ganja weighing 1 kg along with Rs.15.52 lakhs in cash.

11. It is alleged that Mr. Sarvothaman Guhan procured the ganja for the purpose of selling. Mr. Sarvothaman Guhan also disclosed that ganja was procured by him at various friends addresses for the purposes of selling.

12. In the statement made under Section 67 of the NDPS Act, it was stated by Mr. Sarvothaman Guhan that he placed orders through Tareena Bhatnagar and also paid Rs.6 lakhs to the Applicant through bitcoins.

13. The statements of Mr. Rahul Mishra (Accused No.2) and Mr. Aashray Panday (Accused No.3) were recorded under Section 67 of the NDPS Act, which did not mention the name of the Applicant.

14. Thus, on 26.08.2021, a letter was written by NCB-DZU to the Zonal Director, NCB-KZU, regarding disclosures made by Accused No. 1/Sarvothaman Guhan regarding an alleged transaction of INR 6,00,000/- with the Applicant through bitcoins. It was also requested in the letter that the Applicant be arrested and handed over to NCB-DZU for further examination.

15. On 01.09.2021, the Applicant was issued a notice under section 67 NDPS Act to appear before the I.O. at NCB-KZU and his statements were recorded on 01.09.2021, 07.09.2021, 12.09.2021 and 13.09.2021.

16. It is stated that in his statements, he admitted and accepted the complicity in commission of NDPS offences and he further identified Mr. Sarvothaman Guhan as his online friend.

17. In his statement under Section 67 of the NDPS Act, the Applicant stated that he had dealt with Accused No.1/Mr. Sarvothaman Guhan once on behalf of Accused No.5/Ms. Shradha Surana @ thebanksy @ thetrippylanes @ Phyonix and one, Accused