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TMI Blog2024 (11) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... id drugs and thus except the statements recorded under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) there is no corroborative material to implicate present Applicant with the said offence. 5 Learned Counsel for the Applicant would further submit that though complaint is filed by NCB on 2nd February 2021 and cognizance of it was taken by the concerned Special Court on 18th April 2022, there is no progress in the matter. He submits that total 54 witnesses are disclosed in the complaint for the complainant to be examined. However, till date there is absolutely no progress in the matter though Applicant is in custody from 9th August 2021. 6 Learned Counsel for the Applicant would submit that the Applicant has already undergone 3 years in custody and there is no chance of conclusion of the said trial in near future. 7 Learned counsel would further submit that Section 37 of the NDPS Act will have to be considered in view of long incarceration of the Applicant without any progress in the trial. He submits that Applicant is having a right to a speedy trial and if such right is denied to him, rigors of Section 37 of the NDPS Act cannot be made applicable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .06.2024 in Bail Application No.433 of 2024. 8. Judgment in case of Gudipati Subramaniam Vs. Union of India and Another passed by High Court of Bombay, reported in 2024 SCC Online Bom 1350. 9. Judgment in case of Shashikant Prabhu Vs. Harshad Chandrakant Gawde @ Harry passed by High Court of Bombay on 21.12.2020 in Bail Application No.422 of 2024. 12 Perusal of the complaint filed before the Special Court would clearly disclose that a container bearing No.INKU2267955 imported under the bill of entry dated 1st August 2020 was detected by the Customs officers and found some creamish colour powder with pungent smell. The Customs officer suspected that it could be a narcotic drug and accordingly intimation was given to NCB/DRI. Accordingly, a team was constituted for conducting the raid after complying the provisions of Section 42 of the NDPS Act. Raiding team along with panch witnesses reached the Navkar Corporation at CFS Raigad at around 11:15 p.m. on 7th August 2020. After identifying the container in presence of panchas and Accused No. 1, a joint examination was carried out. The creamish colour powder was recovered from the wooden structure which was found testing positive fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... band was found in the said consignment for which Accused No.1 has acted as a Clearing Agent, the involvement of Accused No.2 is on the basis of statement made by Accused No.1 under Section 67 of NDPS Act. 18 Similarly the contention of the complainant as far Accused No.2/Applicant is concerned is again based on statement under Section 67 of NDPS Act. It is no doubt true that there are call details and WhatsApp records which show that Accused No.2/Applicant was in contact with Accused Nos.1 and 4 and documents for clearance of the consignment was forwarded by the present Applicant to Accused No. 1. 19 As far as confessional portion recorded under Section 67 of the NDPS Act is concerned, it is now well settled and as held by the Apex Court in the case of Toofan Singh Vs. state of Tamilnadu that statement under Section 67 of NDPS Act cannot be used as confessional statement in the trial of an offence under the provisions of the NDPS Act since the officers who are invested with powers under Section 53 of the NDPS Act are police officers within the meaning of Section 25 of the Evidence Act and as a result of which any confessional statement made to such police officer would be barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey alerted the DRI and accordingly raid was conducted. 25 Applicant was not present when the consignment was opened and search was carried out. It was Accused No.1, who was present during the search of the said consignment and he was responsible for clearing the said consignment though claimed for and on behalf of Accused Nos.2 and 4. Thus the material which has been collected by the complainant qua the present Applicant is not enough to sufficiently corroborating the case and existence of the call details and forwarding of the bills to Accused No.1 cannot be considered as presumption of the knowledge of the Applicant about the drugs concealed in the said consignment. 26 The case so far put forth against present Applicant would go to show that it mostly rest on the statement under Section 67 of the NDPS Act and there is no corroborative evidence to substantiate the avernments in his statement so as to detain him further. Hence the embargo under Section 37 of the NDPS Act would not cause any impediment in the present matter. 27 Besides, Applicant was arrested on 9th August 2021 and since the last 3 years he is in custody. Complaint would go to show that there are 54 witnesses wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iculous examination of the material collected during investigation. 32 Coming back to the matter in hand, it is no doubt true that a huge commercial quantity of heroin was found in the container, but except statement under Section 67 of NDPS Act which is otherwise not admissible in evidence as far as admissions/ confessions of the present Applicant are concerned, there is hardly any corroborative evidence. Thus the provisions of Section 37 of the NDPS Act would not be considered as an embargo in the present matter even though commercial quantity was detected and seized. 33 Applicant is in custody from last 3 years and till date there is absolutely no progress in the said matter. The conclusion of trial in near future is again a remote possibility. Accordingly, I am of the considered opinion that the Applicant is entitled for the bail in connection with the present matter. However, on strict conditions. 34 Bail application is therefore allowed. Applicant shall be released on furnishing a personal bond of Rs.1 Lakh with two solvent sureties in the like amount to the satisfaction of the Learned Special Court and on the following conditions: (1) Applicant shall not tamper with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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