Delhi High Court: The Single Judge bench of Jasmeet Singh, J., granted bail to the applicant/ accused 4, alleged to have committed offence under Section 8(c), 20(b)(ii)(A), 20(b)(ii)(B), 21(b), 22(c), 23 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act') on the ground that:
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Statements recorded under Section 67 of the NDPS Act are inadmissible in evidence according to Section 25 of the Evidence Act, 1872 (‘IEA').
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The recoveries made from the accused 4 were in ‘small quantity' as notified under the NDPS Act.
In the matter at hand, a bail application was filed by accused no.4 who was arraigned in the complaint for allegedly being involved in dealing ganja for selling purposes. It was alleged that the accused no.4 was an active and verified vendor on the ‘Orient Express' group on Telegram who procured drugs from vendors in and outside India to various addresses and thereafter, resold the same to customers.
In the statement made under Section 67 of the NDPS Act, Sarvothaman Guhan (‘accused 1') alleged to have paid Rs 6 lakhs to the applicant/ accused no.4 through bitcoins, thus was issued notice to appear before the Investigating Officer at Narcotics Control Bureau, Kolkata Zonal Unit where his statements were recorded. He accepted the complicity in commission of NDPS offences and further admitted that he along with Shradha Surana (‘accused 5') and Parichay Arora (‘accused 14') were involved in drug business through ‘dark net'.
Legal Trajectory
The accused 4 was arrested in September 2021 under section 8, 20 and 29 of the NDPS Act, on the basis of recoveries and his confessional statements recorded under section 67 of the NDPS Act and has been in custody since then.
Special Judge (‘NDPS'), Patiala House Court, New Delhi dismissed the bail application on the ground that the offences were serious in nature and thus, applied the bar of section 37 of the NDPS Act.
Subsequently, the accused no.4 was granted regular bail by the Chief Metropolitan Magistrate, Kolkata in December 2021 in all the registered cases against him on the ground that the quantities of drugs recovered were below ‘small quantity' making it a bailable offence. The NCB, however, filed a case under the provisions of the NDPS Act against 15 accused persons in January 2022
Questions for determination
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Whether the statements of the accused 4 are inadmissible in evidence, and they do not lead to discovery of any ‘fact' in terms of section 27 of IEA?
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Whether recovery involving ‘commercial quantity' are attributable to the accused no.4?
Court's Analysis and Observation
Issue No.1
While determining the first issue for consideration, the Court stated that the statements of the accused 4 recorded under Section 67 of the NDPS Act are inadmissible in evidence according to Section 25 of the IEA. Section 27 of the IEA, however, creates an exception to the same when part of a confessional statement lead to discovery of fact which was not previously in the knowledge of the police officer. Whereof, none of the statements of the accused 4 led to any discovery of a ‘fact' in terms of Section 27 of the IEA.
Issue No.2
Analysing the second issue at hand, the Court stated that the only recovery that can be attributed to the accused 4 was the one which took place pursuant to the statement of the accused 4 about a parcel lying at Foreign Post Office, Kolkata. The said recovery consisted of 39.7 grams of cannabis paste and 2.53 grams of cannabis liquid and the same constituted ‘small quantity' as notified under the NDPS Act.
The Court further stated that the contraband was recovered in ‘commercial quantity' from other accused in the case which cannot be attributed to the accused 4. The only recovery which can be attributed to the accused 4 is one involving ‘small quantity'. Therefore, none of the ingredients of section 19, 24, 27A of the NDPS Act were attracted to the facts of the present case. Hence, the Court held that the rigors of Section 37 NDPS Act would not apply to the accused 4.
In addition to above:
The Court stated that the Telegram chats allegedly produced by accused 9 did not make a case against accused 4, as those chats were with a ‘Deleted Account' with no corroborative prima-facie evidence to show that the said deleted account belonged to the applicant/ accused no.4.
The Court also stated that the bank account statements do not make a case against the accused 4, as the bank account transactions cannot by themselves be used to place any culpability upon the accused 4 in light of Section 34 IEA which mandates the requirement for other evidence to prove an allegation with respect to such books of accounts against a person. Mere transactions between the accused 4 and accused 5 do not implicate the accused 4 of conspiracy with other accused persons.
The Court also observed that several other co-accused persons were released on regular bail despite their involvement and recovery of contraband in ‘commercial quantity' from their possession. The accused 4, however, have been in custody since 2021, the investigation was complete, and the custodial interrogation of the accused 4 was no longer required. Therefore, the Court granted bail to the accused 4 on certain conditions without commenting on the merits of the case.
[Jasbir Singh v. Narcotics Control Bureau, 2023 SCC OnLine Del 134, decided on 13-01-2023]
Advocates who appeared in this case :
For the petitioner- Senior Advocate Sidharth Agarwal with Advocate Abhir Datt, Advocate Vikram Hegde, Advocate Sowjhanya Shankaran, Advocate Rudrali Patil, Advocate Chitwan Sharma, Advocate Debayan Gangopadhyay and Advocate Jagrit Vyas
For the respondent- Senior Standing Counsel Subhash Bansal with Advocate Raghav Bansal