Point of Law: whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer also needs to be referred to the larger Bench, inasmuch as it is intermixed with a facet of the 1st issue as to whether such a statement is to be treated as statement under Section 161 of the Code or it partakes the character of statement under Section 164 of the Code

JUDGMENT :

B.N. KARIA, J.

1. The present application is filed under Section 439 of the Code of Criminal Procedure by the applicant for regular bail in connection with complaint being DRI/F No. DRI/AZU/SRU/A/NDPS-01/2020 registered on 09.07.2020 with the department of Revenue Intelligence, Surat for the offence punishable under Sections 22, 23, 25, 25A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short “NDPS Act”).

2. Heard learned advocate for the applicant; learned APP for the respondent State and learned Additional Solicitor General of India for the respondent no. 2.

3. It was submitted by learned advocate for the applicant that applicant is quite innocent and has not committed any of the offence as alleged against him in the FIR and no prima-facie case is made against the present applicant. That, the applicant has been wrongly arraigned as an accused and applicant had not committed any offence as alleged. That applicant is one of the proprietor of M/s. Orlando Healthcare since the year 2012 and the said firm was engaged in trading of pharmaceutical materials. The applicant joined M/s. Ardor Drugs Pvt. Ltd. as a director only in the year 2019. It is highly uncertain and unreliable that the applicant has conspired and ensured to manufacture and export commercial quantity of contraband as he had just joined Ardor Pvt. Ltd. in 2019. That, the applicant being the proprietor of M/s. Orlando Healthcare since 2012, there is no single instance of violation of any law much less the provisions of the NDPS Act, in the past. That applicant has not engaged in commission of any offences as alleged in the complaint. That a bare reading of the complaint also at no point reveals that the applicant had any other role other than that of being the Director of Ms. Ardor Ltd. Since the year 2019. Further more, the applicant also doubts if the papers where the applicant's signatures were sought were blank papers in the first place. That the purported statement and the signature therein have been taken by coercion, duress, involuntarily and without the free will of the applicant herein. That applicant has been made to testify against himself. The same is prohibited in law. That the prosecution agency has placed a highly improbable story as the company has already exported 44.79 Lakhs tablets and that has gone unnoticed by the said agency and carved out a probable story that production has been carried out by the company of 60 Lakhs tablets, out of which, 44.79 lakhs tablets were already exported. That the prosecution agency has first carried out a search at Hazira Port and thereafter to shift the burden, M/s. Ardor Drugs Pvt. Ltd. and is used as a scapegoat. That retraction letters for all statements under Section 67 of the NDPS Act have been sent since all the statements were recorded under duress and without free will. The statements were already drafted and the accused were forcefully made to sign the story in order to corroborate the story of the Investigating Authorities. Moreover, the applicant has not made any confession/admission of the alleged offence before the DRI officers. That applicant has denied giving the statements placed forward by the Respondent Agency/DRI vide a retraction correspondence. That the evidence adduced by the prosecution is neither consistent nor convincing nor cogent nor clear. That the recovered substance was not covered under the NDPS (Regulation of Controlled Substances) order 2013.That even on merits looking to the materials placed on record by the prosecution absolutely there is no reliable or trust worthy incriminating material adduced by the prosecution and no person can be kept behind the bar upon such unreliable incriminating material. That the company being Ador Drugs Pvt. Ltd. received license to manufacture and export Tramadol based drugs outside India. It is submitted that, allegedly the company Ador Drugs Pvt. Ltd. Manufactured more than 100 drugs and had received approval for th