The main legal point established in the judgment is the inadmissibility of confessional statements made by the accused under the NDPS Act, as interpreted by the Supreme Court, and the retrospective application of the Supreme Court's decision in the case of Toofan Singh v. State of Tamil Nadu.

ORDER :

Subodh Abhyankar, J.

They are heard through Video Conferencing. Perused the case diary/challan papers.

1. This is the applicant's third application under Section 439 of Criminal Procedure Code, 1973, as he/she is implicated in connection with Crime No. 01/2017 registered at Police Station Narcotics Control Bureau, Zonal Unit, Indore District Indore (MP) for offence punishable under Section 8 read with Section 15 and Section 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein after referred to as the Act). The applicant is in custody since 26.09.2018.

2. Learned counsel for the applicant has submitted that this is the applicant's third application, as earlier bail application Miscellaneous Criminal Case No. 22967/2019 was dismissed as withdrawn vide its order dated 02.07.2019 whereas Miscellaneous Criminal Case No. 48085/2019 was dismissed on merits by this Court vide order dated 21.01.2020.

3. Facts in the present case are not disputed that the applicant is facing prosecution under Section 8 read with Section 15 and Section 29 of the Act in connection with recovery of 1239.765 kilograms of poppy straw from the co-accused Subhash s/o Rajaram Gurjar, who in his statement recorded under Section 67 of the Act, has stated that it was the present applicant who had loaded the aforesaid contraband in the vehicle. Earlier bail application of the applicant Miscellaneous Criminal Case No. 48085/2019 was dismissed by this Court while observing that whether the statement recorded under Section 67 of the Act can be treated as confessional statement or not, is pending consideration before the Larger Bench of the Supreme Court; and has further proceeded to hold that "confessional statement is admissible", while relying upon the decision rendered in the case of Mohammed Farin v. State Represented by the Intelligence Officer reported as (2019) 8 SCC 811, has dismissed the bail application.

4. Mr. Saransh Jain, counsel for the applicant has submitted that subsequently the Larger Bench of the Supreme Court in the case of Toofan Singh v. State of Tamil Nadu has clearly held that the 'Officers' under Section 53 of the Act are "Police Officer" within the meaning of Section 25 of the Evidence Act; and the confessional statement made to them would be barred under Section 25 of the Evidence Act and cannot be looked upon; and consequently it is also held that the statement recorded under Section 67 of the Act cannot be used as confessional statement in the trial of an offence under the Act.

5. Relying upon the aforesaid latest dictum of the Supreme Court, counsel has contended that the applicant is entitled to be released on bail, as he has been roped-in in the matter, only on the basis of his statement and the statement of co-accused regarding his involvement.

6. Counsel has submitted that except the confessional statement of the co-accused and the present applicant, there is nothing on record even to remotely connect him with the aforesaid offence; and his plea of being falsely implicated is also corroborated by his medical document, whereby he was hospitalized during the period when the incident took place. It is further submitted that there are no criminal antecedents of the applicant. Thus, it is submitted that the applicant be released on bail.

7. Mr. Manoj Soni, ld. Counsel for the respondent/State, on the other hand, has opposed the prayer; and it is submitted that no case for interference is made out. Although, Mr. Soni has fairly submitted that in the case of Toofan Singh v. State of Tamil Nadu (Supra), Larger Bench of the Supreme Court has held that statement recorded under Section 67 of the Act is not admissible in evidence, however, his contention is that the aforesaid decision would be applicable prospectively and hence, would not be applicable in the present facts and circumstances of the case where the incident has taken place on 12th May, 2017. It is however not denied that there are no criminal antecedents of the applic