IMPORTANT POINT
The main legal point established in the judgment is the requirement of legally admissible evidence to deny bail, particularly in cases involving the NDPS Act.

JUDGMENT :

1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.05 of 2021 (C.R. No.NCB/ AZU/CR No.06 of 2022) registered with the ATS Police Station, Ahmedabad of the offence punishable under Sections 8(C), 21(c), 23(c), 25, 27(a), 28, 29, 35 and 54(a) of the NDPS Act.

2. Learned advocate appearing for the applicant has submitted that the applicant-accused was arrested on 09.11.2022 and since then he is in jail. Learned advocate for the applicant has also submitted that the investigation has already been completed and charge-sheet has also been filed. It is moreso submitted that the FIR came to be lodged against three accused persons who were caught red-handed along with the narcotics substance heroin weighing 118.650 kg. Pursuant to the registration of the first information report, investigation was ensued and during the course of investigation, on the basis of the statement made by the co-accused, the applicant- accused has been booked in the present offence. Learned advocate for the applicant-accused has further submitted that it is the specific case of the prosecution that during the course of investigation, statement of the co-accused came to be recorded wherein he has very categorically stated that before commission of the present offence, on earlier occasion, he sold the contraband substance to the applicant-accused on number of occasions and on the strength of the said incriminating confessional statement made by the co-accused, the present applicant-accused has been roped into the present offence. It is also submitted that during the course of investigation, nothing is recovered or discovered at the instance of the applicant-accused. Learned advocate for the applicant has further submitted that, in fact, the present application is preferred at post-charge-sheet stage as the investigation has already been concluded, however, the statement on the basis of which, the present applicant-accused has been implicated in the present offence, is not formed part and parcel of the charge-sheet papers and, therefore, it can be said that there is no documentary evidence available against the applicant- accused in the entire compilation of the charge-sheet papers. It has been further submitted that the applicant-accused has been arraigned solely on the basis of statement of the co- accused, except that, no other incriminating materials is available against the applicant-accused. Learned advocate for the applicant has submitted that as per the settled proposition of law as held by the Hon’ble Apex Court in the case of Tofan Singh vs. State of Tamil Nadu, AIR 2020 SC 5592, confessional statement made by the co-accused or the accused before the Investigating Officer under Section 67 of the NDPS Act does not have any evidentiary value in the eye of law. It is further submitted that at the time of opposing the bail application before the trial court, the Investigating Officer has relied upon two past antecedents against the applicant- accused. However, out of the two offences, in one offence, the applicant-accused has already been acquitted by the court concerned after considering and appreciating the overall materials available on record. So far as the other offence is concerned, the same is pending for adjudication before the competent court. To buttress his submissions, learned advocate for the applicant relies upon the following two decisions;

(i) In the case of Bharat Chaudhary vs. Union of India, reported in 2021 (2) SCC (Cri) 246;

(ii) A decision of this Court in the case of Mohammed Rafiq Mo. Shafi Shaikh vs. State of Gujarat, Criminal Misc. Application No.23047 of 2019;

3. In such circumstances, referred to above, learned advocate appearing for the applicant prays that there being merit in his application, the same be allowed and the applicant-accused be released on bail.

4. Per contra, Mr. Kartik Pandya, the learned standing counsel