2021 (3) TMI 974 - HC - Indian Laws

Search and seizure proceedings in the presence of independent witness - Smuggling - reasons to believe that offence is committed - foremost plea taken by petitioner is that at the first available opportunity he had retracted from the confessional statement recorded under Section 67 of NDPS Act - HELD THAT - Recently the Hon ble Supreme Court by majority view while answering to a reference with regard to the evidentiary value of Section 67 of NDPS Act in Tofan Singh 2020 (11) TMI 55 - SUPREME COURT held 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 . Reciting a dissenting view in Tofan Singh (Supra) Hon ble Ms. Justice Indira Banerjee observed that she was unable to agree that a statement recorded under Section 67 of the NDPS Act cannot be used against an accused offender in the trial of an offence under the NDPS Act . Pertinently besides confessional statement recorded under Section 67 of NDPS Act no other evidence is available on record to show petitioner s involvement in the offence in question. No recovery has been made at the instance of petitioner. Since petitioner has retracted from his confessional statement so recorded its worth has be proved at trial by the prosecution. Fulfillment of conditions stipulated under Section 37 of NDPS Act or not - HELD THAT - In the present case no recovery has been made from petitioner. Admittedly on the day his ID was used he was on leave and no other similar case is pending against him. No material such as call detail record etc. has been placed by the prosecution to establish that petitioner was in contact with the main accused namely Monte Alexander. Accordingly this Court has a reason to believe that petitioner is not likely to commit the offence if released on bail. Charge under Section 29 NDPS Act has already been framed by the trial court against the petitioner and thereby prosecution has an opportunity to prove its case during trial. Hence requirements under Section 37 of NDPS Act are fulfilled. Presumption under Section 35 of NDPS Act - HELD THAT - The Hon ble Supreme Court in Noor Aga 2008 (7) TMI 853 - SUPREME COURT held that the provisions of Sections 35 54 of the Act are not ultra vires the Constitution of India however procedural requirements laid down therein are required to be strictly complied with. Applying the dictum of Noor Aga to the facts of this case It is found that the burden is on the prosecution to prove that accused is guilt and also on the accused to prove his innocence and this recourse can only be taken during trial. The petitioner is directed to be released forthwith subject to conditions imposed.

Summary

Issues:
Accusations under Sections 22(C), 23(C) & 29 NDPS Act, Bail Application Dismissal, Retraction of Confessional Statement, Conditions under Section 37 of NDPS Act, Presumption under Section 35 of NDPS Act.

Accusations under Sections 22(C), 23(C) & 29 NDPS Act:
The petitioner was accused of offenses under the NDPS Act based on the recovery of Amphetamine from a parcel. Statements of co-accused indicated the petitioner's involvement in accepting international parcels. The trial court dismissed the bail application citing a prima facie case against the petitioner.

Bail Application Dismissal:
The petitioner filed a petition claiming innocence and false implication. The trial court dismissed the bail application considering the involvement of the petitioner in sending parcels containing contraband. The petitioner argued that he was on leave when the parcel was booked and that his identification documents were misused. Legal precedents were cited to support the petitioner's case.

Retraction of Confessional Statement:
The petitioner retracted his confessional statement recorded under Section 67 of NDPS Act. The Supreme Court's view on the evidentiary value of such statements was discussed, highlighting the need for its proof during trial. Lack of other evidence implicating the petitioner was noted.

Conditions under Section 37 of NDPS Act:
The petitioner claimed to fulfill the conditions under Section 37 of NDPS Act as no recovery was made from him, and he was not in contact with the main accused. The court found merit in the petitioner's argument and concluded that the requirements under Section 37 were met, allowing for the possibility of bail.

Presumption under Section 35 of NDPS Act:
The prosecution raised the plea of presumption under Section 35 of NDPS Act, which places the burden of proof on the accused regarding culpable mental state. Legal precedents were cited to explain the burden of proof and the standards required for proving guilt or innocence. The court emphasized the need for strict compliance with procedural requirements.

In conclusion, the court allowed the petition, directing the petitioner's release on bail while imposing conditions to prevent tampering with evidence or influencing witnesses. The decision was made based on the petitioner's fulfillment of conditions under Section 37 of NDPS Act and the legal interpretations regarding confessional statements and presumptions under the NDPS Act.