The inadmissibility of confessional statements recorded under Section 67 of the NDPS Act and the requirement of prima facie evidence for granting bail in NDPS Act cases.

JUDGMENT :

Satyen Vaidya, J.

Petitioner is accused in case Crime No. 52 of 2022, registered with NCB, Sub Zone, Mandi, District Mandi, H.P. on 21.07.2022. Petitioner is in custody since 09.08.2022.

2. Petitioner has prayed for grant of bail under Section 439 of Cr.P.C., on the ground that the implication of the petitioner is without any substance. The investigating agency has not been able to collect any legal evidence against the petitioner. It is also submitted that the trial is at initial stage and the petitioner cannot be detained in custody for indefinite period.

3. The NCB has filed its status report. It is revealed that on 21.07.2022, 1.950 Kilograms of ‘Charas’ was recovered from the vehicle bearing registration No. PB-07Y-2385, at Shahpur, District Kangra, HP. The vehicle was occupied by three persons, namely, Vivek Sharma, Rakesh Kumar and Praveen Kumari. The ‘Charas’ was found hidden in the luggage kept on the rear seat of the car. During investigation accused Vivek Sharma is stated to have disclosed that the contraband was supplied by petitioner. Petitioner was accordingly arrested on 09.08.2022. It is further submitted that the petitioner has further disclosed to the investigating agency that the contraband was supplied to him by another co-accused, namely, Latif Mohammad.

4. The NCB has opposed the prayer for grant of bail, on the grounds that the involvement of the petitioner is in a serious offence. The petitioner is not entitled to bail in view of the bar created by Section 37 of the ND&PS Act. Petitioner, if released on bail, is likely to involve himself in similar activities.

5. I have heard learned counsel for the petitioner as well as learned Senior Counsel for the respondent and have also gone through the status report carefully.

6. The involvement of commercial quantity of ‘Charas’ is there in case registered, vide crime No. 52 of 2022, by the respondent. Rigors of Section 37 will be applicable in the case. It has been argued on behalf of the petitioner that the provisions of Section 37 of NDPS Act cannot be an impediment in grant of bail to the petitioner as there is no material on record showing prima facie involvement of the petitioner in the case.

7. Though, this Court, while deciding the bail application, will not minutely scan the material collected during investigation, still the same can be looked into for assessing seriousness and gravity of allegations against the petitioner.

8. From the perusal of the reply filed on behalf of the respondent as also record produced by learned counsel for the respondent, it is evident that the petitioner has been implicated on the basis of disclosure statement of co-accused recorded Under Section 67 of NDPS Act and also on the basis of alleged conversation between accused Latif Mohammad, and the petitioner through their respective mobile phones.

9. Except the existence of CDRs and disclosure statement of co-accused no other material appears to have been collected against the petitioner. The disclosure made by co-accused cannot be read against petitioner as per mandate of Hon’ble Supreme Court in Tofan Singh Vs State of Tamil Nadu (2021) 4 SCC 1. Further, in State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and another, (2022)2 Scale 14, the Hon’ble Supreme Court has held as under:-

“10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu, (2021)4 SCC 1,that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial.