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Presumption under S.35 of NDPS Act would operate in the trial : High Court of Delhi

Procedural requirements laid down under provisions of Sections 35 & 54 of NDPS are required to be strictly complied with. The burden is on the prosecution to prove that accused is guilty and also on the accused to prove his innocence and this recourse can only be taken during trial. This was decided in the case of JITENDER BHATI V. NARCOTICS CONTROL[BAIL APPLN. 4005/2020] in the High Court of Delhi by single bench consisting of Hon’ble Justice Suresh Kumar Kait.

Facts of the case are that a team of NCB conducted search and seizure proceedings and recovered 150 grams of Amphetamine. After recording petitioner’s statement under  S.67 of NDPS Act, the petitioner was arrested for committing offense under S.22 & S.29 of NDPS Act. The learned trial court, after hearing arguments dismissed petitioner’s bail application.

Contentions of the learned counsel for petitioner are that the learned trial court has failed to  consider that when contraband was booked  petitioner was on leave and his Id was misused by someone and retraction of confession  recorded under S.67 of NDPS Act. That there is no other evidence and reliance was placed upon decision of Hon’ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu.

The learned counsel for NCB in support dismissal of bail application submitted there is presumption under Section 35 of NDPS Act, that charge under Section 29 of NDPS Act has already been framed and that petitioner fails to fulfill conditions prescribed under Section 37 of NDPS Act.

The High Court relied on the on the Supreme Court Judgement of Noor Aga Vs. State of Punjab (2010) 3 SCC (Cri) 748 wherein the court had observed that, 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 of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift.”

The Court also referred to Tofan Singh (Supra) in relation to its majority opinion with respect of S.67 NDPS Act wherein it was held, “that a statement recorded under S.67 of the NDPS Act cannot be used as a confessional statement in the trial of an offense under the NDPS Act.”

Drawing observations from the facts of the case and the precedents by the Hon’ble Supreme Court, the court herein held that no other evidence is available on record to show petitioner’s involvement and as no recovery was made from petitioner, requirements under S.37 of NDPS Act are fulfilled. Court placed emphasis on the procedural requirements to be followed and granted bail to the petitioner.

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