HARSHADA H. SAWANT (P.A.)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO.4445 OF 2024 Musanna Nasir Bawazir .. Applicant Versus The State of Maharashtra .. Respondent ....................

 Mr. Sherali S. Khan, Advocate for Applicant.

 Mr. Balraj B. Kulkarni, APP for Respondent – the State of Maharashtra.

 PI – Sadanand Yerekar, Unit – 3, DCB, CID, Mumbai.

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CORAM : MILIND N. JADHAV, J.

DATE : FEBRUARY 18, 2025 P.C . :

1. Heard Mr. Khan, learned Advocate for Applicant and Mr.

Kulkarni, learned APP for Respondent – the State of Maharashtra.

2. This is an Application under Section 439 of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking Bail in connection with C.R. No.624 of 2023 registered with N. M. Joshi Marg Police Station for offences punishable under Sections 8 (c), 22 (c) and 29 of the Narcotics and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’).

3. Applicant is indicted in the present crime alongwith two other Accused. He is arraigned as accused No.2. Recovery has been effected from accused No.1 on 18.10.2023 of the alleged contraband. On the basis of statement of accused no.1, accused Nos.2 and 3 have been apprehended on the ground that he has stated that he received the alleged contraband from Accused Nos.2 and 3. Accused No.1 on him being arrested disclosed role of Accused Nos.2 and 3 as suppliers and took the prosecution team to their respective places. In so far Accused No.3 is concerned this Court had the opportunity of dealing with his Bail Application No.4579 of 2024 and after perusing the record of the case, he was enlarged on bail primarily on the ground that he was indicted merely on the basis of the statement of the co- accused i.e. accused No.1 about his alleged involvement in the crime but no conscious recovery whatsoever was made from him.

4. Neither the prosecution was / is in position to show linkage of any money trail or tracing of any money with respect to alleged contraband in question to the said accused in that case as also in the present case. The role of present Applicant i.e. accused No.2 is identical to that of accused No.3 in the crime. After taking the prosecution team to apprehend accused No.3 and when he was not found, accused No.1 took the prosecution team to a nearby locality and asked the prosecution team to wait at a road junction in Dongri in anticipation of arrival of accused No.3 who did not arrive. The disclosure of name of accused No.2 is in statement of accused No.1.

5. The Supreme Court in the case of Tofan Singh Vs. State of Tamil Nadu, [(2021) 4 SCC 1] Court held that statements recorded by NDPS officers could be construed as statements to police officers given their duties and responsibilities in preventing and detecting crime under the NDPS Act. It held that right against self-incrimination and right to privacy under Article 20(3) and Article 21 of the Constitution apply to confessions recorded under Section 67 of the NDPS Act. It also held that officers under the NDPS Act should be construed as 'police officers' under Section 25 of the Indian Evidence Act to prevent coercion in recording confessions and that confessions made before such officers are inadmissible as evidence to protect fundamental rights under Articles 20(3) and 21 of the Constitution of India.

6. In the case of Phundreimayum Yas Khan Vs. State (NCT of Delhi), [2023 SCC OnLine 135] the Delhi High Court has observed that disclosure statement of co-accused is per se not admissible without there being any corroboration thereof. Relevant paragraph No.24 of the said judgement reads thus:-

“24. The case of the prosecution, in so far as the applicant is concerned, is circumstantial, i.e. based solely on disclosure statement of the co-accused Sayed Javed Hussain which is per se not admissible without there being any corroboration. The prosecution has not been able to establish any connection between the subject offence and the location/CDRs of