ORDER

18.11.2022 Heard Mr. D. Das, learned senior counsel, assisted by Ms. S. Das, learned counsel for the accused and also heard Mr. S. C. Kayel, learned Standing Counsel for the NCB.

2. This application, under Section 439 of Cr.P.C., is preferred by accused, namely- Shri Prabhu Shankar Tiwari, who has been languishing in jail hazoot in connection with NDPS Case No.49/2022, corresponding to NCB Crime No. 25/2022, registered under section 8(c)21(b)(c)/29 of the NDPS Act, since

25.09.2021.

3. The said case has been registered on the basis of one complaint lodged by one Sakil Ansari, Junior Intelligence Officer, NCB Guwahati to the effect that acting on a tip off, they have intercepted one vehicle bearing registration number UP 32 HN 9008, on 05.09.2021, at about 03.00 am, near Madanpur Toll Plaza, Guwahati and recovered 18989 bottles Codine based Phensydyl cough syrup, manufactured by Abbott Healthcare Pvt.Ltd, Village- Bhatauli, Solan, Himachal Pradesh, and apprehended accused Imran and Kamal Kumar, from the said truck. Thereafter, on 24.09.2021, while the present accused Shri Prabha Shankar Tiwari came to Guwahati and waiting at Railway Station, Guwahati in the evening, NCB team apprehended him and arrested on 25.09.2021 and forwarded him to jail hazoot. After investigation, final complaint has been laid before the court of learned Sessions Judge, Kamrup Guwahati against the present accused along with three others to stand trial in the Court under section

21(C) & 29 of NDPS Act.

4. Mr. Das, learned senior counsel, appearing for the accused submits that the accused was arrested on 25.09.2021, and since then he has been languishing in jail hazoot for more than 420 days. Mr. Das has advanced his argument mainly on following points:-

(i) That, nothing has been recovered from the possession of accused Prabha Shankar Tiwari;

(ii) That, the I.O. had arrayed him as accused mainly relying upon the confessional statements of two co-accused, which is held to be inadmissible by Hon’ble Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu, reported in AIROnline

2020 SC 798.

(iii) That, the I.O. also relied upon the voluntary statement of the accused, which is also not admissible;

(iv) That, the arresting authority also relied upon the Call Details Record (CDR) of the mobile phones of the accused, which is to be considered at the time of trial.

Mr. Das further submits that as charge sheet has been submitted, there is no requirement of custodial interrogation, and that the accused is innocent and he will participate in the trial and therefore, it is contended to allow this petition.

Mr. Ali also referred following case laws in support of his submission:-

(i) Pantapati venkata Satyanarayana Murthy vs. State of A.P., 1999 Crl.L.J. 4190;

(ii) State vs. Pallulabid Ahmed Arimutta, AIROnline 2022 SC 130;

(iii) Khaliluddin vs. Union of India, Bail,Application No. 2955 of 2021;

(iv) Sania Devi vs. State of Himachal Pradesh, AIROnline 2022 HP 624;

5. On the other hand, Mr. S.C. Kayel, the learned Standing Counsel for the NCB has vehemently opposed the petition and submits that there are sufficient materials to reveal the complicity of the accused with the offences alleged in the complaint. Mr. Kayel further submits that there is no quarrel at the bar that statement of the co-accused is not admissible. But, referring to the case of NCB vs. Mohit Agarwal, [2022] 0 Supreme(SC) 619, Mr. Keyal submits that apart from statements of co-accused there are some other materials like his voluntary statement and the CDR which shows complicity of the accused with the offence. Mr. Kayel further submits that at this stage it cannot be said that he is innocent and presence of or absence of culpable mental state can be ascertained during trial only. Mr. Kayel further submits that the ratio laid down by this court in the case Khaliluddin, is already set aside by the Hon’ble Supreme Court in Union of India (NCB)Etc. vs. Khalil Uddin Etc, 2022 LiveLaw(SC) 878; Mr. Kayel, ther