Statements under Section 67 of the NDPS Act are inadmissible as confessions, and bail cannot be granted without evidence of innocence in cases involving commercial quantities of narcotics.

ORDER :

Heard with the aid of case diary.

This is first application filed under Section 439 of Cr.P.C for grant of bail, in connection with FIR/Crime No.09/2021 dated (not mentioned) registered at Police Station- NCB Regional Unit Indore, District Indore (M.P.) for the offence punishable under Sections 8/20, 25, 27 and 29 of the NDPS Act.

2. Prosecution story, in brief is that on 14.08.2021 at around 08:00 PM, a secret information was received by NCB Unit Indore that co-accused persons Sher Khan @ Sheru Khan and Mahboob Ali are about to transport Cannabis (Ganja) in bulk quantity from Shirpur Maharashtra to Tarana, District Ujjain (M.P.) in a vehicle bearing registration No.RJ17-GA-6181. On 15.08.2021 at around 09:00 – 11:00 AM between Maksi and Tarana, they can be caught. On 15.08.2021, NCB team had stopped the aforementioned vehicle. Truck driver told his name to be Sheru and the helper told his name to be Mahboob Ali. During search of the vehicle, 400 sacks of rice straw were found and under them, in 44 sacks 1376.07 kgs. of Ganja was found. They had no licence to transport the contraband. Contraband and vehicle was seized from the accused persons. Statement of accused persons u/S 67 of the NDPS Act was recorded, wherein it has been revealed that present applicant Vijay Kisan Mohite @ Biju Beldar @ Bhau had given the contraband and vehicle to transport the same. Coaccused Mahboob Ali was to be given Rs.1,500/- and driver Sheru Khan was to be given Rs.5,000/- for the aforesaid act and contraband was to be given to coaccused Imran Khan. On 18.01.2022, present applicant Vijay Kisan Mohite was arrested and on 20.01.2022, his statement u/S 67 of the NDPS Act was recorded wherein he stated that he handed over the vehicle alongwith the contraband to co-accused Sheru Khan and Mahboob Ali, which was to be given to accused Imran Khan. Therefore, it has been revealed that the present applicant and co-accused Imran Khan were also involved in the crime.

3. Learned counsel for the applicant/accused submits that the applicant has not committed the offence and has falsely been implicated in the case only on the basis of statement recorded u/S 67 of the NDPS Act of co-accused persons Sheru Khan, Mahboob Ali as well as his own statement. No contraband was seized from the possession of the present applicant. There is no legal evidence available in the case against him except the statement recorded u/S 67 of the NDPS Act. It is also submitted that real name of the applicant is Vijay Kisan Mohite but he is implicated in the present case in the name of Vijay Mohite @ Biju Beldar @ Bhau. It is also submitted that statement recorded u/S 67 of the NDPS act is not admissible in evidence therefore, no offence is made out against the applicant. He placed reliance on the case of Tofan Singh V State of Tamil Nadu [(2021) 4 SCC 1], State (by NCB) Bengaluru V Pallulabid Ahmad Arimutta and Anr. [(2022) 12 SCC 633] and Bharat Chaudhary V Union of India [(2021) 20 SCC 50].

4. It is also submitted by counsel for the applicant that two other similar cases of likewise offence by Crime Branch Indore (Crime No.6/2021) and Police Station Amalner (Crime No.301/2021) but the applicant is granted bail in the aforementioned crimes. Applicant is in custody since 21.08.2023. After completion of investigation, charge-sheet has been filed. Trial will take considerable long time for its disposal, therefore, it is prayed that the applicant be released on bail.

5. Per contra, learned counsel for the non-applicant/Union of India has opposed the prayer and submits that the applicant is an unlawful trader of Ganja. He has criminal antecedents and 02 criminal cases of likewise offence are registered against him at Indore (M.P.) and Amalner (M.H.) therefore, he is a habitual offender. It is also submitted that as per call details and CDR of mobile number of the applicant, he was in regular contact with the co-accused person at the relevant time. The case is involved with huge quantity