ORDER

These are the applications for regular bail.

2. These bail applications are filed by accused Nos.3, 6 and 7 in Crime No.731 of 2021 of Harippad Police Station, Alappuzha District, alleging the commission of offences under Sections 8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as NDPS Act). Bail Application No.897 of 2022 has been filed by the 3rd accused, Bail Application No.1355 of 2022 has been filed by the 6th accused and Bail Application No.1441 of 2022 has been filed by the 7th accused.

3. The gist of the prosecution case is that on 07.11.2021 at about

10.05 PM, the Sub Inspector of Police Station, Harippad Police Station received information over the station phone that some youngsters have stored contraband articles prohibited under the NDPS Act for sale inside Room No.61 at a resort known as Mangalya Resort. It is alleged that after complying with the provisions of Section 42 and after sending a search memorandum to the Jurisdictional Magistrate, the Sub Inspector of Police and party, proceeded to the Mangalya Resort and after requiring the presence of the Tahsildar and Executive Magistrate, Karthikappilly, conducted a search in Room No.61 of the aforesaid Mangalya Resort and seized 52.410 grams of MDMA from a bag belonging to accused No.2 and arrested accused Nos.1 to 7, who were present in the room at the time. It is alleged that by having in possession for sale and for use the aforementioned quantity of MDMA, the accused, including the petitioners herein have committed the offences under the aforesaid provisions of law.

4. I have heard Sri.P.Vijayabhanu, the learned Senior Counsel appearing on the instructions of Sri.S.K.Saji, the learned counsel appearing for the petitioner in Bail Application No.897 of 2022, Sri.M.R.Arunkumar, the learned counsel for the petitioner in Bail Application No.1355 of 2022, Sri.Omar Salim, the learned counsel appearing for the petitioner in Bail Application No.1441 of 2022 and Sri.

C.K Suresh, Learned Senior Public Prosecutor, for the State.

5. The learned Senior Counsel appearing for the petitioner in Bail Application No.897 of 2022 vehemently contends that there is absolutely no material whatsoever to connect the petitioner / accused No.3 with the offences alleged. It is submitted that admittedly, the recovery of the contraband was from a bag belonging to accused No.2. It is submitted that the presence of the petitioner in the room does not mean that the petitioner has also committed an offence under the provisions of the NDPS Act. It is submitted that two recent decisions of the Supreme Court namely that in Bharat Choudhary v. Union of India; 2022(3)Supreme 171 and State By (NCB) Bengaluru v. Pallulabid Ahmad Arimutta and Another; 2022(2)Supreme 409 are relevant in the facts and circumstances of the case. It is submitted that in Bharat Choudhary (supra), it was held that if there is no recovery of contraband from a particular accused, notwithstanding the provisions Section 37 of the NDPS Act, the particular accused cannot be denied bail. It is submitted that the said decision is also authority for the proposition that WhatsApp chats etc. between the petitioner and the other accused cannot be the basis to hold that there was a live link between the petitioner and the other accused in the case. It is pointed out that in Pallulabid Ahmad Arimutta (supra), it has been held that a confession statement recorded under Section 67 of the NDPS Act is inadmissible in evidence in the light of the judgment of the Supreme Court in Tofan Singh v. State of Tamilnadu; (2021) 4 SCC 1. It is submitted that any statement recorded under Section 67 of the NDPS Act cannot form the basis for any prosecution and for denying bail to an accused. The order of a learned Single Judge of this Court in B.A. No.3554 of 2021 is referred, to point out that as long as there was no recovery of contraband from the conscious possession of the petitioner, the petitioner c