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Confession made in police custody cannot be used in trial for offence under NDPS Act: High Court of Delhi

When no circumstantial evidence is found and person is arrested merely under Section 67 for recording of NDPS Act for confession statement, such arrest holds no legal validity, and the accused shall be granted bail. This was decided in the case of by Mohit Aggarwal vs. Narcotics Control Bureau [BAIL APPLN. 2585/2020 & Crl.M.(B) 8044/2020] Hon’ble Justice Suresh Kumar Kait in the High Court of Delhi.

The facts of the case are that petitioner was business in the name of Madhav Pharma for sale, purchase and transport of various medicines while holding valid drug license under Form 20B & 21B of Drugs & Cosmetics Act, 1945. pleaded that no contraband was recovered from his possession and he has been falsely implicated in this case. He got involved into the case after secret information was given to the an Intelligence officer of the a parcel containing NRX tablets.  Thereafter, as per law, search was conducted, and drugs were seized after sending legal notice to the owner to accompany the raiding team. After a series of investigations , upon recovery of contraband and based on voluntary statements, petitioner was arrested under Sections 8,22 and 29 NDPS Act. His application for bail was dismissed and hence this petition.

The counsel for petitioner submitted that the rejection of bail by the trial court is without application of mind, as the learned trial court has failed to appreciate that name of petitioner popped up. Also, the person on whose voluntary statement, the arrest was made, has not named the petitioner herein and he has retracted from his statement. Also, no other material evidence has been placed on record to establish petitioner’s involvement in the offence in question.

Special Public Prosecutor contended that court shall support the rejection of bail application as the offence committed by the petitioner comes under the category of recovery of commercial quantity and since there is an embargo of Section 37 of NDPS Act. He further submitted that the analysis of call detail records of petitioner and other co-accused in this case shows criminal conspiracy for their involvement in illicit trafficking of drugs.

The court considered the contentions put forth by both the parties. It observed that he solitary ground to involve petitioner in the present case is his statement made under Section 67 of NDPS Act, which he had retracted at the first opportunity available to him. The court also reproduced Section 67 of NDPS Act which empower the concerned authorities to ‘examine any person acquainted with the facts and circumstances of the case.

The court referred to the case of Tofan Singh Vs. State of Tamil Nadu 2020 SCC Online SC 882 where it was 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.”  

The court further observed that reliance cannot be solely placed upon disclosure statement of co-accused to keep him behind bars, especially when the recoveries of the instance were before the arrest of the petitioner and the statement given by co-accused has been retracted at the first available opportunity. Also, as no incriminating material was recovered at the instance of petitioner, the court said that, this strengthens the view of Court that petitioner is not likely to commit offence if released on bail.  Therefore, the petition was allowed, and bail granted.

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