The burden of proof under Section 37 of the NDPS Act lies with the accused, and compliance with search and seizure provisions is to be adjudicated at trial, not at the bail stage.

JUDGMENT

Anoop Chitkara, J.

1. The petitioner, incarcerating upon his arrest for possessing a commercial quantity of heroin, in violation of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), has come up before this Court under Section 439 of CrPC, seeking bail.

2. In paragraph 17 of the bail petition, the accused declares that he has no criminal antecedents.

3. On Aug 23, 2020, the patrol police received a secret information about drug trafficking and its concealment by the petitioner in connivance with Jashandeep Singh. After that the police party reached his house and detained him. During detention, the petitioner disclosed about the concealment of heroin and based on his identification, the police recovered 2 kg of heroin from the room adjoining his cattle shed.

4. Ld. Counsel for the petitioner contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.

5. While opposing the bail, the contention on behalf of the State is that the quantity of contraband involved in the case falls in the commercial category.

REASONING:

6. The substance involved in the present case is Heroin [Diacetyl morphine], and weighs 2 kg. The entry no. 56 of the table specifying small and commercial quantities, specifies the quantity greater than 250 grams as commercial quantity and lesser than 5 grams as small. Thus, the quantity allegedly involved in this case is commercial. Given this, the rigours of S. 37 of the NDPS Act apply in the present case. The burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.

7. Ld. counsel submits that the petitioner was arrested prior to the detection of any offence and after arrest he made a disclosure statement to the police which led to the recovery of heroin, hence such disclosure and recovery are hit by section 25 of Indian Evidence Act.

8. In Tofan Singh v. State of Madras, the majority view of the larger bench of Hon'ble Supreme Court is that a confessional statement is not admissible in evidence. This view has been followed by Hon'ble Supreme Court in Cr.A 1273 of 2021, Sanjeev Chandra Agarwal v. Union of India, decided on 25th October, 2021.

9. In the present case, even if the disclosure statement is taken to be illegal but yet the recovery was from the room adjoining the petitioner's cattle shed. The prosecution has not been launched based on the disclosure statement bit on the recovery of 2 kilograms of heroin from a room adjacent the cattle shed of the petitioner. The onus is on the petitioner to explain the recovery, which he has failed to do. It is not the petitioner's case of no connection with the room in question.

10. Ld. counsel further submitted that this court has granted bail to the co-accused Jaswinder Singh alias Laddu. A perusal of order dated 16-12-2021 passed in CRM-M- 42966-2020 reveals that the main ground for bail was 100% disability of the petitioner. Thus, the petitioner cannot claim same order on the grounds of parity of the decision in the same case.

11. In paragraph 5 of the bail application, the petition states that the accused is entitled to bail because of the non-examination of independent witnesses. However, this plea would gather force only when the accused establishes after cross-examination that the police deliberately did not associate any independent witness even when they could have been made available, and in the facts and circumstances peculiar to this case, the argument does not satisfy the requirements of section 37 of NDPS Act.

12. In State of Punjab v Baldev Singh, (1999) 6 SCC 172, the Constitutional bench of Hon'ble Supreme Court holds,

[14]. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for effecting search, seizure or