2024 (2) TMI 1439 - HC - Indian Laws

Seeking grant of regular bail - recovery of 135 grams of Cocaine was made from the house of the co-accused - case of the prosecution is based upon the disclosure of the co-accused Justin Izuchukwu Samuel - HELD THAT - It is relevant to note that while the veracity of the disclosure statement of the co-accused is to be tested at the time of the trial, however, this Court cannot lose sight of the decision of the Hon ble Apex Court in the case of TOFAN SINGH VERSUS STATE OF TAMIL NADU 2020 (11) TMI 55 - SUPREME COURT . It was held that a disclosure statement made under Section 67 of the NDPS Act is impermissible as evidence without corroboration. The present case relates to the recovery made from the coaccused on 18.06.2021. The WhatsApp chats, even assuming to be in relation to the sale and purchase of contraband, at this stage, do not appear to be in relation to the recovery made, which led to filing of the complaint in the present case - It is not the case of the prosecution that, at the contemporaneous time, the applicant was in contact with the co-accused in relation to the contraband which was seized from the co-accused on 18.06.2021. The Courts are not expected to accept every allegation made by the prosecution as a gospel truth. The bar, as provided in Section 37 of the NDPS Act, cannot be invoked where the evidence against the accused appears to be unbelievable and does not seem to be sufficient for the purpose of conviction of the accused - In the present case, the prosecution has been given an adequate opportunity to oppose the present application. In view of the facts of the case, prima facie, this Court is of the opinion, that at this stage there are reasonable grounds to believe that the applicant is not guilty of the alleged offences. Moreover, it is also not disputed that the applicant has clean antecedents, and is thus not likely to commit any offence whilst on bail. The applicant is directed to be released on bail on furnishing a personal bond for a sum of ₹20,000/- with two sureties of the like amount, subject to fulfilment of conditions imposed - bail application allowed.

Summary

Issues:
Application for Regular Bail under Sections 8, 21(c), and 29 of the NDPS Act - Rejection of Bail Application by Trial Court under Section 37 of the NDPS Act

Comprehensive Analysis:

Issue 1: Application for Regular Bail under Sections 8, 21(c), and 29 of the NDPS Act
The applicant sought bail under Section 439 of the CrPC read with Section 482 of CrPC in a case involving the recovery of Cocaine from a co-accused's house. The prosecution alleged the applicant's involvement in drug trafficking based on the co-accused's statement, CAF, CDR, and WhatsApp chats. The applicant, a taxi driver, claimed innocence and clean antecedents, emphasizing lack of incriminating evidence and challenging the application of Section 37 of the NDPS Act.

Issue 2: Rejection of Bail Application under Section 37 of the NDPS Act
The Trial Court twice denied bail citing Section 37 of the NDPS Act, which imposes restrictions on bail in drug-related cases. The applicant argued against the applicability of Section 37, citing judgments supporting his position. The Narcotics Control Bureau (NCB) opposed bail, relying on CDR, WhatsApp chats, and the seriousness of the alleged drug trafficking conspiracy, fearing trial interference if the applicant was released.

Analysis:
The High Court analyzed the evidence, emphasizing the impermissibility of relying solely on a co-accused's disclosure statement per Tofan Singh v. State of Tamil Nadu. It noted the lack of direct recovery from the applicant and the circumstantial nature of the case, echoing Dalip Singh v. State (NCT of Delhi) observations. The Court highlighted the absence of contemporaneous contact between the applicant and the co-accused regarding the seized contraband, questioning the prosecution's case.

The Court referenced Union of India v. Shiv Shanker Kesari and Mohd. Muslim v. State (NCT of Delhi) to interpret Section 37's conditions, stressing the need for prima facie evidence of innocence for bail consideration. It criticized the belated sample collection application under Section 52A of the NDPS Act, indicating procedural lapses. The Court underscored the prosecution's burden to provide believable evidence, not invoking Section 37 arbitrarily.

Ultimately, the Court found reasonable grounds to believe the applicant's innocence, granting bail with stringent conditions to prevent tampering with evidence or fleeing. It cautioned against misinterpreting its observations and allowed redressal for any future legal actions against the applicant. The judgment balanced legal principles, precedent, and the applicant's circumstances to ensure fair bail consideration without compromising trial integrity.