Confessional statements under Section 67 of the NDPS Act are inadmissible, and bail can be granted based on the principle of parity when co-accused are released.

JUDGEMENT

1. The petitioner is facing trial alongwith two others in a complaint, titled, "State through Intelligence Officer, NCB Jammu vs. Irshad Ahmed Parray and others", under Sections 8, 20, 29 & 60 of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short "the NDPS Act") before the court of Principal Sessions Judge, Samba (for short "the trial court").

2. The petitioner has filed the present bail application on the ground that majority of the witnesses have been examined. The petitioner has subsequently added some other grounds. It is stated that panchnama was prepared at the NCB office in absence of the independent witnesses and false and frivolous statements of the accused persons under Section 67 of the NDPS Act were recorded, which are not admissible in the evidence. It has also been urged that the witnesses examined before the learned trial court have not been able to connect the petitioner with the recovery of the alleged contraband. The petitioner has placed on record the orders dated 11.08.2023 and 11.03.2024 passed by the Coordinate Benches of this Court, whereby the co-accused Mohd Syed Shah and Nazir Ahmad Lone have been enlarged on bail respectively.

3. Learned counsel for the petitioner has vehemently argued that the alleged contraband was recovered from the truck, which was being driven by the other accused and the petitioner has no role in it. He has further argued that the petitioner deserves to be enlarged on bail, more particularly when he has been in custody for the last so many years and the co-accused have been enlarged on bail.

4. Per contra, Mr. Vishal Sharma, learned DSGI has submitted that commercial quantity of contraband was recovered from the vehicle, in which the petitioner was travelling alongwith two other accused, as such, the petitioner does not deserve to be enlarged on bail.

5. Heard learned counsel for the parties and perused the record.

6. A perusal of the record reveals that on 23.10.2014 at 04:35 hours on the basis of prior information, the truck bearing No. JK13A-4571 was stopped at Dhar Road near Village Nud, Samba by the team of NCB along with two independent witnesses. During the search of the said truck, one polythene bag was recovered, which was kept below the back side of the truck driver's seat and on opening, 3.84 Kg. of charas was recovered from it. The truck was being driven by Nazir Ahmad Lone and two persons accompanying him disclosed their names as Zakir Mushtaq-cleaner of the truck and Irshad Ahmed Parray, friend of Zakir Mushtaq. The statements of the accused were recorded under Section 67 of the NDPS Act regarding recovery of 3.84 kg of charas from the truck. They admitted that they received the consignment from Mohd Syeed Shah S/o Ghulam Rasool Shah R/o Dewanbagh Bijbhera and was to be delivered to Mohd Saveed Shah at Kalibari and for that purpose Mohd Syeed Shah was to pay Rs. 10,000/- to them.

7. The confessional statement of the accused under Section 67 of the NDPS Act is inadmissible in evidence in view of the law laid down by the Hon'ble Supreme Court in the case of Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1. The other two accused, i.e. the driver of the vehicle and the person, who handed over the consignment to petitioner for its delivery at Kalibari Kathua, have been granted bail and the petitioner too deserves to be enlarged on bail on the principle of parity.

8. In view of above, this Court is of the considered view that the petitioner deserves to be enlarged on bail. Accordingly, the petitioner is ordered to be released on bail on the following conditions:

(i) subject to his furnishing of two solvent sureties for an amount of Rs. 1,00,000/- each to the satisfaction of trial court and personal bond of like amount.

(ii) that he shall not make any attempt to contact any of the prosecution witnesses during trial either physically or through any other mode.

(iii) that he shall not leave the territory of UT of J&K without prior permission of the trial c