J U D G M E N T

: JASMEET SINGH, J

1. This is an application seeking grant of regular bail to the applicant in Case No. 186/2021, FIR No. VIII/02/DZU/2021 registered at P.S. NCB, Delhi under section 8(C)/29 of NDPS Act, pending before the Patiala House Courts, New Delhi.

2. The brief facts of the case are that on 30.01.2021, a secret information was received at Delhi Zonal Unit, NCB that one person namely Sayed Javed Hussain is travelling to Manipur by Air India Flight No. AI-889 from Terminal-3, IGI Airport and is carrying huge quantity of NRX Medicines. He was apprehended at the airport and on his search he was found carrying Signature Not Verified Digitally Signed byAMIT BAIL APPLN. 1383/2022 Page 1 of 20

36,000 tablets of Tramadol weighing about 22.1 kg as well as 20 bottles of Codeine Syrup. Subsequently, Sayed Javed Hussain was arrested and during the course of investigation, while tendering his statement under section 67 of NDPS Act, he revealed of the present applicant, i.e. Phundreimayun Yaz Khan. He stated that the applicant is his friend and he used to purchase the contraband from Delhi through the applicant and thereafter sell the contraband in Manipur. Co-accused Sayed Javed Hussain further disclosed that on 26.01.2021, he reached Rajouri Garden Metro Station where the applicant sold him the said contraband procured through Amarjit Singh Sandhu. Hence, the applicant was arrested.

3. The statement of the applicant was also recorded under section 67 of the NDPS Act, wherein he disclosed that he was running a pharmacy business since 2017 and he used to purchase the Narcotics Medicines from one Amarjit Singh Sandhu. He revealed that the recovered contraband was also purchased from him by cash.

4. The learned counsel for the applicant submits that there is no evidence against the applicant, except the disclosure statement of the co-accused Sayed Javed Hussain and it is solely on this basis, that the FIR has been registered against the applicant. He further submits that neither any CCTV footage was obtained from the Metro Station nor any public witness was associated at the time of arrest of the applicant. It is also stated that nothing is recovered from the applicant or at his instance.

5. The main reliance of the learned counsel for the petitioner is on the ratio of “Tofan Singh v State of Tamil Nadu” [2021 4 SCC 1] to say that a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. He Signature Not Verified Digitally Signed byAMIT BAIL APPLN. 1383/2022 Page 2 of 20 states that the two questions which were framed by the Hon’ble Supreme Court in Tofan Singh(supra) were as under:

“1. Whether an officer “empowered under Section 42 of the NDPS Act” and/or “the officer empowered under Section 53 of the NDPS Act” are “police officers” and therefore statements recorded by such officers would be hit by section 25 of the Evidence Act; and

2. What is the extent, nature, purpose and scope of the power conferred under Section 67 of the NDPS Act available to and exercisable by an officer under Section 42 thereof, and whether power under Section 67 is a power to record confession capable of being used as substantive evidence to convict an accused?”

6. After detailed analysis, the conclusions arrived by the Hon’ble Supreme Court were as under:

“158. We answer the reference by stating:

158.1 That the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.”

7. Mr. Jain, learned counsel for the applicant sta