2009 (9) TMI 975 - HC - Customs

Bail application - seizure of Maruti Zen Car carrying a huge quantity of contraband i.e. 22.855 kg of heroin - It is alleged that the recovered contraband were supplied by the present petitioner to the co-accused persons - Held that - it does appear that the petitioner was not in conscious possession of the said contraband. therefore I am satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the offences for which he has been charged. As regards the question as to whether he is likely to commit any offence while on bail no circumstance has been brought to my notice which would indicate that there is such a likelihood. It is also not the case of the State that the petitioner has been involved in any other NDPS related cases. In this view of the matter the petitioner is directed to be released on bail on furnishing a personal bond in the sum of 50, 000/- with two sureties of the like amount to the satisfaction of the concerned trial court - the petitioner be released on bail on his furnishing bail bond in the sum of 1 lakh - petition allowed - decided partly in favor of petitioner.

Issues Involved:
1. Admissibility of statements under Section 67 of the NDPS Act.
2. Voluntariness of the petitioner's statement.
3. Delay in trial proceedings and its impact on bail.
4. Applicability of Section 37 of the NDPS Act.

Issue-wise Detailed Analysis:

1. Admissibility of Statements under Section 67 of the NDPS Act:
The petitioner argued that the evidence against him is inadmissible, as it comprises statements from co-accused recorded under Section 67 of the NDPS Act, which cannot be used against him unless corroborated by independent evidence. The respondents countered that statements recorded by DRI officials under Section 67 are admissible against both the maker and others.

The court cited several judgments, including Union of India Vs. Bal Mukund & Ors. and Francis Stanly @ Stalin Vs. Intelligence Officer, Narcotic Control Bureau, which emphasize that confessions under Section 67 need corroboration by independent evidence, especially if retracted. The court concluded that statements under Section 67 cannot form the sole basis for conviction without corroboration.

2. Voluntariness of the Petitioner's Statement:
The petitioner claimed his statement was taken under duress, supported by a medical report showing injuries and an application detailing torture. The respondents argued that the retraction was delayed and the injuries were not indicative of torture.

The court noted the petitioner's detailed allegations of torture and the medical report corroborating his claims. The court found that the statement was not voluntary and emphasized that a retracted statement, especially under duress, requires independent corroboration to be admissible.

3. Delay in Trial Proceedings and its Impact on Bail:
The petitioner has been in custody for over five years, with the trial progressing slowly. Despite court directions to expedite the trial, significant delays persisted, with only eight witnesses examined by September 2009.

The court acknowledged the undue delay in trial proceedings and noted that the petitioner's prolonged detention without substantial progress in the trial justifies consideration for bail.

4. Applicability of Section 37 of the NDPS Act:
The petitioner argued that his continued detention is unjustified under Section 37 of the NDPS Act, given the lack of corroborating evidence. The respondents maintained that Section 37's conditions must be met, including ensuring the petitioner will not commit similar crimes in the future.

The court found that the first requirement of Section 37-evidence against the petitioner-was not substantiated due to the inadmissibility of the uncorroborated statement. The court also noted the lack of evidence suggesting the petitioner would commit similar offenses if released.

Conclusion:
The court concluded that the petitioner's statement under Section 67 of the NDPS Act, being retracted and uncorroborated, is inadmissible. The prolonged detention without significant trial progress and the absence of evidence indicating future criminal behavior justified granting bail. The petitioner was directed to be released on bail with conditions to ensure compliance and non-involvement in similar activities. The court emphasized that these findings do not affect the merits of the ongoing trial.

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