Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 2882

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
BRIJ RAJ SINGH, J.
Sujit Kumar - Appellant
Versus
Union Of India Thru. D.R.I. Lucknow - Respondents
Criminal Misc. Bail Application No.11552 of 2023
Decided on : 18-12-2023

Advocates Appeared:
For the Appellant : Anil Kumar Sharma
For the Respondent: Digvijay Nath Dubey

Confessional statements to officers under the NDPS Act are inadmissible as evidence, and bail must be granted if there is insufficient evidence against the accused.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8, 20, 25, 27A, 29 - Bail application - First application for bail moved under Section 439 CrPC - Alleged involvement in a case with recovery of Ganja; however, the applicant did not have any possession nor was indicated as the carrier by co-accused - Confessional statements of co-accused were deemed inadmissible pursuant to judicial precedents, which bar such statements from being used against the accused, as per Section 25 of the Evidence Act. (Paras 1-12)

Facts of the case:
The bail application arose from DRI Case No.08/2022 concerning Ganja recovery. The applicant was implicated based solely on co-accused statements, without direct evidence linking him to the contraband or the crime.

Findings of Court:
On assessing the facts, the Court found a lack of incriminating evidence directly against the applicant and determined that the bail application met the required conditions as the co-accused statements were inadmissible.

Issues: The central issues included the admissibility of confessional statements under the NDPS Act and the sufficiency of evidence presented against the applicant to warrant bail.

Ratio Decidendi: The Court emphasized that confessional statements recorded under Section 67 of the NDPS Act are inadmissible according to Section 25 of the Evidence Act, and established that the applicant was improperly implicated based solely on these statements without corroborating evidence.

Result: Application for bail allowed.

Table of Content
1. factual overview of dri case against applicant (Para 2 , 3 , 4 , 5 , 6)
2. arguments regarding the admissibility of confessional statements. (Para 7)
3. arguments against admissibility of confessional statements (Para 8 , 9 , 10 , 11 , 12 , 13)
4. court's observations on evidence and confessions (Para 14 , 15 , 17)
5. concluding observations and bail grant. (Para 16)
6. court's decision to grant bail (Para 18)
7. conditions attached to bail order (Para 19 , 20 , 21 , 22)

JUDGMENT :

Brij Raj Singh, J.

1. Heard Sri Annil Kumar Sharma, learned counsel for the applicant, Sri Digvijay Nath Dubey, learned counsel for opposite party Union of India, DRI, Lucknow, and perused record.

2. This first application for bail under Section 439 CrPC is moved with prayer for bail to applicant in DRI Case No.08/2022 under Section 8 /20/25/27A/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), PS Challaned by D.R.I., Gomti Nagar, district Lucknow.

3. It has been submitted by the learned counsel for the applicant that the alleged recovery of Ganja pertaining to 903.500 kg., is shown from the possession of co-accused Bapina Gouda and Ajit Kumar Naik but the same is shown neither to have been recovered from the possession of the applicant nor the applicant is career of the contraband substance.

4. As per prosecution case, two named accused persons Bapina Gouda and Ajit Kumar Naik were arrested at the place of occurrence on 30.5.2022 along with Truck No.OD-07-AC-0286 by the team of DRI Department, Lucknow at Sri Mahesh Prasad Degree College, National Highway, 24-B, Mohanlalganj, Lucknow-227305 (U.P.). The said truck was coming to Lucknow from Rae Bareli side and the truck driver was Bapina Gouda and other person who was sitting in the truck, was identified as Ajit Kuar Naik.

5. It is relevant to mention here that both accused persons who were arrested on spot, did not take the name of the applicant nor any statement was given against the applicant by them. In their confessional statement, they stated that the said truck was belonging to Balaji Svain Transport and contraband substance was uploaded by the owner of the Balaji Svain Transport. At the place of recovery, no incriminating substance recovered from the co-accused which could indicate that the applicant was involved in any manner.

6. It is submitted that surprisingly, after four months in the night of 2/3.10.2022, the DRI Officer in other case bearing DRI Case No.7 of 2019 under Section 8 /20/23/25/27/28/29 of NDPS Act, PS Challaned by DRI, Gomti Nagar, district Lucknow (in the said case, the applicant has been released on bail) and at the time of arrest, two mobile phones bearing Mobile Phone No.7889106729 and 8709937752 of the applicant have been recovered. Only on the basis of confessional statement, the applicant has been made accused in the present case and without any incriminating evidence, the DRI has planted the case to the extent that the recovered Ganja from the co-accused was to be delivered to the applicant.

7. It is relevant to mention here that the conversation of the aforesaid two mobile phone numbers has been investigated by the Investigating Officer and as per call detail, there is no conversation between the applicant and other two co-accused i.e. co-accused Bapina Gouda and Ajit Kumar Naik who were arrested on spot. It has been submitted that the applicant has been implicated in the present case only on the basis of confessional statement and the applicant has been made accused on the basis of confessional statement and recovery of two other mobile phone No. 8260583846 and 9083713039. It is further submitted that said two mobiles are not registered in the name of the applicant and alleged conversation is not between the co-accused and applicant rather, the conversation is between Basant and Sharat Chandra Gouda. It is mentioned that Basant and Sharat Chandra Gouda are not the accused and the location of applicant is found in Punjab as per call detail.

8. L