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TMI Blog2024 (2) TMI 1439X X X X Extracts X X X X X X X X Extracts X X X X ..... losure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the house of the co-accused Justin Izuchukwu Samuel. It is the prosecution s case that the said accused in his statement revealed the name of the applicant, whose involvement in illegal trafficking of drugs was further corroborated by the CAF and CDR of the co-accused Justin, and the WhatsApp chats between them. The applicant was arrested on 25.11.2021, and has remained in custody since then. 3. The applicant s bail application was rejected by the learned Trial Court by order dated 22.02.2022, and later again by order dated 19.09.2022, due to the embargo under Section 37 of the NDPS Act. SUBMISSIONS OF THE APPLICANT 4. The learned counsel for the applicant contends that the applicant is a poor taxi driver, and the sole bread earner in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted from him directly, have been effectively dealt by the learned Trial Court and requires no interference. 11. He placed heavy reliance on the CDR and WhatsApp conversations between the applicant and the co-accused to impress upon this Court that both of them were in constant touch, and were actively dealing in drug trafficking. 12. He submitted that the applicant has been accused of a serious offence of conspiracy for indulging in drug-trafficking of commercial quantity of contraband-Cocaine. He contended that the matter is at the stage of arguments on charge, and the applicant s release at this stage could adversely affect the trial. 13. He further submitted that the seized contraband involves commercial quantity of Cocaine and the emba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statement of a co-accused which is per se not admissible without there being any corroboration. Prosecution has not been able to establish any connection between the subject offence and the bank accounts, where the petitioner is alleged to have been depositing money or with the holders of those accounts. Merely because the petitioner has been having telephonic conversation with the co-accused, would not be sufficient to hold that petitioner is guilty of the subject offence. There is no recovery made from the petitioner. 12. I am of the view that requirement of Section 37 of the NDPS Act are satisfied. In so far as the petitioner is concerned, there are reasonable grounds to believe that petitioner is not guilty of the said offence. (empha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which as discussed above, is not admissible without any corroborative evidence, and on the basis of the alleged WhatsApp chats, which, admittedly, were exchanged about ten months prior to the recovery of the contraband from the coaccused. 21. The respondent has contended that the applicant cannot be enlarged on bail unless the conditions laid down in Section 37 of the NDPS Act are met. 22. The Hon ble Apex Court, in the case of Union of India v. Shiv Shanker Kesari : (2007) 7 SCC 798, has observed as under: 11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h cannot be lost sight of is that the recovery of the contraband was made on 18.06.2021 whereas the application under Section 52A of the NDPS Act was filed belatedly on 24.09.2021. There is no explanation as to why the application was filed belatedly, however, the same, at this stage, appears to be in violation of Section 52A of the NDPS Act, thereby vitiating the procedure for collection of sample. This Court in Kashif v. Narcotics Control Bureau : 2023 SCC OnLine Del 2881 , had held that the application for sample collection cannot be moved at the whims and fancies of the prosecuting agency. 25. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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