2022 (2) TMI 722 - HC - Indian Laws

Seeking grant of bail - supply of narcotic drugs and psychotropic substances - prohibited goods - retraction of statements - recovery not made from petitioner - inadmissible evidences - HELD THAT - Admittedly, no recovery has been affected from the petitioner. Though in the statement of the petitioner recorded under Section 67 of the NDPS Act it is noted that that the petitioner in his Honda City Car No.3003 gave the parcels to Satpal for being sent to Delhi, the same being not admissible in evidence in view of the decision of the Hon'ble Supreme Court in Tofan Singh 2020 (11) TMI 55 - SUPREME COURT , the statement of Satpal only indicates that the car number of the petitioner was given and that the parcels will be sent in the said car. As per Satpal, the parcels were given to Danish and on Dr.Bansal asking about the parcels being received and sent, he inquired from Danish who said that the same were taken by Dr. Bansal's man from Apex Courier. No statement of Danish has been recorded to show that the petitioner has handed over the two parcels to him in his Honda City Car No.3003. Thus the allegations at best against the petitioner is that number of his Honda City Car was used for sending the parcels to the courier agency at Agra. In the absence of the statement of Danish, as per the complaint filed by the respondent who is not a witness and there is no evidence against the petitioner except the inadmissible statement of the petitioner himself that he delivered the parcels to Danish. Before the Court grants bail to an accused allegedly involved in an offence under the NDPS Act, the Court required to be satisfied that the accused is not guilty of the offence and that he will not involve himself in an offence under the NDPS Act while on bail. The petitioner has been in custody since January, 2019 and considering the evidence against him, this Court deems it fit to grant regular bail to the petitioner pending decision of the trial. Consequently, the petitioner is directed to be released on bail on his furnishing a personal bond in sum of ₹ 50,000/- with two surety bonds of the like amount subject to the satisfaction of the learned Trial Court. Further, subject to the condition that the petitioner will not leave the country without prior permission of the court concerned and in case change of address and/or mobile number, the same will be intimated to the Court concerned by way of an affidavit by the petitioner - Petition disposed off.

Summary

Issues Involved:
1. False Implication and Parity in Bail
2. Evidence and Recovery
3. Previous Involvement and Section 37 NDPS Act
4. Statements under Section 67 NDPS Act
5. Role of Co-accused and Witnesses

Issue-wise Analysis:

1. False Implication and Parity in Bail:
The petitioner contended that he has been falsely implicated and sought parity in bail with co-accused Mohan Kumar and Birpal, who were granted bail earlier. The court noted that there was no recovery from these co-accused and only statements under Section 67 of the NDPS Act were used as evidence. Moreover, discrepancies were found in the prosecution's version regarding the origin of the parcel and the consignment note.

2. Evidence and Recovery:
The petitioner argued that no incriminating evidence or recovery was made from him, and there were inconsistencies in the evidence provided by the prosecution. The court acknowledged that no recovery was made from the petitioner and highlighted the lack of direct evidence linking the petitioner to the contraband, especially in the absence of a statement from Danish, who was allegedly involved in handling the parcels.

3. Previous Involvement and Section 37 NDPS Act:
The prosecution opposed the bail, citing the petitioner's involvement in previous NDPS cases and the commercial quantity of the contraband. However, the court noted that the petitioner had been granted bail in the previous case and emphasized the need for reasonable grounds to believe that the petitioner is not guilty and will not commit any offence while on bail, as per Section 37 of the NDPS Act.

4. Statements under Section 67 NDPS Act:
The petitioner’s statement under Section 67 of the NDPS Act was argued to be involuntary and inadmissible based on the Supreme Court's decision in Tofan Singh vs. State of Tamil Nadu. The court found that the petitioner's statement alone could not be relied upon for his involvement in the offence, especially since it was retracted and deemed inadmissible.

5. Role of Co-accused and Witnesses:
The prosecution alleged a larger conspiracy involving the petitioner and co-accused in illicit trafficking of psychotropic substances. However, the court found that the evidence primarily showed the petitioner's association with the main accused through business dealings and call records, which did not conclusively prove his complicity in the crime. The court also noted the absence of direct evidence from witnesses like Danish, which weakened the prosecution's case.

Conclusion:
Considering the lack of direct evidence, the inadmissibility of the petitioner's statement under Section 67, and the petitioner's prolonged custody since January 2019, the court deemed it fit to grant regular bail to the petitioner. The petitioner was directed to be released on bail with conditions to ensure his presence during the trial and prevent any potential misuse of the bail. The observations made in the order were clarified to be solely for the purpose of deciding the bail petition and not to influence the trial's merits.