The admissibility of statements recorded under Section 67 of the NDPS Act and the consideration of circumstances for granting bail despite the severity of punishment.

JUDGEMENT/ORDER

1. The petitioner-accused seeks bail in the complaint filed by the respondent against the petitioner herein and Muzaffar Ahmed Bhat for offences under Section 8/22/29 NDPS Act.

2. The case set up by the prosecution in the complaint is that on 18.03.2020 the naka was laid near Sarore Toll Plaza, Samba by the Narcotics Control Bureau as the information was received by the Bureau that Muzaffar Ahmed Bhat son of Haju Noor Mohd. Bhat is to visit Sopore from New Delhi via Jammu with huge quantity of narcotics i.e. Spasmo Proxyvon plus capsules and the said person is travelling in a bus of which registration number is given in the complaint. The bus when approached the naka on 18.03.2020 at about 6:30 A.M. the Bureau officials approached the driver of the bus and thereafter the accused was also found to be in possession of a bag. The bag was seized and 12,960 capsules were recovered from the bag belonging to the accused Muzaffar Ahmed Bhat. The statement of said accused was recorded by the concerned officer and in the said statement he disclosed that he had purchased the narcotics from Phool Chand son of Faquir Chand. The statement of the petitioner-accused Phool Chand was recorded by the NCB on 10.08.2020 wherein he is stated to have mentioned that he supplies the drugs to the accused Muzaffar Ahmed Bhat. On the completion of the investigation, the complaint came to be filed against both the accused. The charges stand framed against the accused persons under sections 8/22/29 NDPS Act. The statement of one prosecution witness, namely, Mohd. Nawab has been recorded so far and is on record. The scanned record of the case is annexed with the file.

3. Learned counsel appearing for the accused has argued that except for the so called statement recorded of the petitioner and the accused Muzaffar Ahmed from whom the drug has been allegedly recovered by the respondent there is no other evidence which connects the accused with the commission of offence. The statement of the petitioner recorded in terms of Section 67 of the NDPS Act has no legal force and, therefore, the respondent cannot bank upon the same against the petitioner.

4. Mr. Sumant Sudan, learned Advocate appearing for the respondent has argued that the provisions of Section 37 of the NDPS Act get attracted in the present case and, therefore, the petitioner is not entitled to bail on that ground alone. It is also argued that in addition to the statements of the petitioner and the co-accused in the case there is telephonic record available with the prosecution which shows that both the accused were in constant touch with each other and were in trade of narcotics.

5. It is suffice to mention herein that the bail application moved by the petitioner before the trial court stands dismissed vide order dated 17.08.2022.

6. The perusal of the complaint filed by the respondent reveals that the petitioner-accused has been roped in the case on the basis of the statements recorded of the petitioner as well as the other accused Muzaffar Ahmed. As per prosecution, the contraband has been seized from co-accused Muzaffar Ahmed. The court is prima facie in agreement with the argument of counsel for the petitioner that the statements of the accused persons are hit by the judgment of the Hon'ble Apex Court cited in (2021) 4 SCC 1 titled '[1]Tofan Singh v. State of Tamil Nadu' wherein the court in more than clear terms held that the statement recorded in terms of Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the Act as the officers who are vested with powers under section 53 of the NDPS Act are police officers within the meaning of Section 25 of the Evidence Act. In view of the said verdict the statements by the accused persons recorded in terms of Section 67 of the NDPS Act cannot be the mere reason for disallowing the bail unless other circumstances also call for rejection of bail. It is also profitable to note herein that the Hon'b