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TMI Blog2021 (3) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 67 of NDPS Act on 11.10.2019, there were reasons to believe that he had committed offence under Sections 22/29 NDPS Act, therefore, petitioner was arrested on 11.10.2019. 4. The learned trial court, after hearing arguments advanced by both the sides, dismissed petitioner's bail application vide impugned order dated 07.11.2020 while holding as under:- "The IDs of present accused is used in sending the alleged parcel concealing the contraband. The statement of Dhruv Kulbe categorically suggest that accused Jitender Bhati used to send the parcels of the co-accused on his own ID number of times and in this regard, he has also warned the accused. From the record, prima facie case is clearly made out against the present accused and the charges have already been framed. There is recovery of commercial contraband thus definite bar under Section 37 NDPS Act though the contraband belongs to co-accused Monye Alexander however at this stage, it cannot be inferred that present accused do not have the knowledge about the concealment of contraband at this stage. There are no reasonable grounds for believing that accused is not guilty of the offences with which he is charged and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e commission of offence of trafficking of psychotropic substance and charge under Section 29 of NDPS Act has already been framed and that petitioner fails to fulfil the twin conditions prescribed under Section 37 of NDPS Act, petitioner does not deserve concession of bail. 9. I have heard counsel representing both the sides and gone through the material placed on record and decisions relied upon. 10. The 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. 11. 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 (Supra) 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". 12. Pertinently, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- "35. Presumption of culpable mental state- (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation--In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. 16. In Noor Aga Vs. State of Punjab (2010) 3 SCC (Cri) 748, while dealing with a case under the NDPS Act, the Hon'ble Supreme Court has held as under:- "58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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