Amit Ranjan Vs Narcotics Control Bureau, Delhi

Anu Malhotra, J",,

1. The applicant- Amit Ranjan, S/o Sh. Nabin Kumar, vide the present application seeks the grant of bail in complaint case bearing SC No.81/2019",,

registered under Sections 8(c), 21(c), 23 & 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act,",,

1985) dated 12.02.2019 submitting to the effect that the applicant has been falsely implicated in the instant case, that there has been no recovery of",,

any narcotic nor psychotropic substance from the applicant whatsoever. The applicant has submitted that he is a Software Engineer with a B.Tech,,

degree and the Director of M/s NGA Infotech (OPC) Pvt. Ltd. with its registered office at S-564, 3rd Floor, School Block, Shakarpur, Delhi-l10092",,

and that he has his corporate/working office at Parasi, Near Chaturbhuj Asthan Bagan Bigah, Nalanda, Bihar-803118, from where he successfully ran",,

the businesses of online IT services, BPO, Web designing and software development and has also dealt in the sales of mobile phones and mobile",,

accessories through Flipkart and Snapdeal and has never been involved in any illegal activities.,,

2. The applicant has further submitted that he learnt of the present case on 13.02.2019 from the ICICI Bank when the banker communicated to the,,

applicant of receipt of a freezing order of his account as issued by the Narcotics Control Bureau, whereafter, he learnt of the investigation in the",,

instant case and applied for anticipatory bail, which however, was declined and thus, the applicant surrendered on 06.09.2019 before the Court of the",,

learned ASJ (Special Judge, NDPS), PHC, New Delhi and was arrested by the Narcotics Control Bureau Officer and was sent for one day police",,

custody and then to judicial custody, whereafter, the supplementary complaint was filed against him qua the alleged commission of the offences",,

punishable under Sections 8(c), 21(c), 23 & 29 of the NDPS Act, 1985 and during investigation, the applicant was pressurized and compelled to write",,

his disclosure statement under Section 67 of the NDPS Act, 1985 as dictated by the Investigation Officer, whereafter, the applicant filed a retraction",,

application dated 10.10.2019 retracting from the same submitting to the effect that his disclosure statement had been given under duress and coercion.,,

3. The applicant has further submitted that his subsequent bail application seeking grant of regular bail was declined by the learned ASJ vide order,,

dated 14.05.2020. The applicant has submitted that the prosecution version is based on some secret information received by the Narcotics Control,,

Bureau, Delhi pursuant to which a complaint bearing no. NCB/24/DZU/2018 under Sections 8(c), 21(c), 23 & 29 of NDPS Act, 1985 dated",,

16.08.2018 was registered and some contraband goods were recovered from Gaurav Mehta (Accused No. 1) from Laxmi Nagar, Delhi, whereafter",,

he was arrested on 21.01.2018 and during interrogation he disclosed the name of Bhaskar Khatnani (Accused No.2), who further disclosed the name",,

of Manish Mohan (Accused No.3), who further disclosed the name of Pulkit Kumar (Accused No.4) and since the petitioner has had some IT",,

business relations and transactions with Pulkit Kumar, on the ground of suspicion and disclosure statements made by other co-accused whilst in police",,

custody, the applicant was made accused No.5 in the said complaint by the Investigating Agency.",,

4. It has been submitted by the applicant that the NCB team reached at the office of DHL Express, at 71/3, Rama Road, Kirti Nagar, New Delhi and",,

asked about the parcel which was booked by Sh. Gaurav Mehta and instructed to the staff of DHL to bring the parcel and on opening the same, the",,

said packet/ parcel the officer of the Narcotics Control Bureau allegedly found alleged psychotropic tablets and thereafter, the Narcotics Control",,

Bureau conducted a raid at the office of Gaurav Mehta and recovered some more alleged tablets (i.e Alprazolam, Lorazepam, Phentermine, V.C.",,

Don, Clonazepam) and alleged Vellum tablets which were recovered from the transparent polythene packet, the weight of which recovered",,

contraband was 1.136 kg. The petitioner has submitted that no prima facie case is made out against him, that his name was not mentioned in the initial",,

complaint and the case against him was framed on the disclosure statement of the co-accused whilst in police custody and that the co-accused have,,

also filed their respective retraction applications retracting from their disclosure statements, on account of their having been made under duress and",,

coercion.,,

5. The applicant has further submitted that there has been no recovery of any contraband of narcotic and psychotropic substance from him nor is,,

there any material to prove that he was in â€œconscious possessionâ€ or â€œconstructive possessionâ€ of any of the said contraband articles and that,,

the Investigating Agency has failed to establish any link of the applicant with the co-accused persons from whom the contraband was recovered. The,,

applicant has further submitted that the disclosure statements of the co-accused cannot be relied upon and at the time of the alleged recovery of the,,

contraband from Laxmi Nagar, Delhi, the applicant was at his office at Patna, Bihar.",,

6. Inter alia, the applicant has submitted that merely because the applicant has business relations with Pulkit Kumar and has had a few telephonic",,

conversations and there are bank transactions between their companies, the applicant cannot be booked under Sections 8(c), 21(c), 23 & 29 of the",,

NDPS Act, 1985. Inter alia, the applicant has further submitted that he has no previous adverse antecedents nor involvement in any crime. The",,

applicant has submitted that he had business relations with the co-accused Pulkit Kumar for the last 3-4 years (the application of the applicant being,,

dated 06.06.2020) and has further submitted that the bank account transaction of the applicant showed his business relations with the said accused,,

person. The applicant has also submitted that the transaction in his bank account does not relate to recoveries made by the Narcotics Control Bureau,,

and even the said Pulkit has been granted bail vide order dated 30.05.2019 by the Trial Court itself and the applicant deserves to be released on,,

regular bail on the ground of parity.,,

7. The applicant has further submitted that the supplementary complaint filed by the Investigating Officer against the applicant is based on the basis of,,

call details only and merely because there are call details between the applicant and one of the co-accused namely Pulkit Kumar, the same does not",,

show any connivance between them and due to the same, the applicant cannot be deprived of the grant of bail. The applicant has inter alia submitted",,

that his father is bed ridden, he has a younger brother studying and pursuing CA and an unmarried sister and that the applicant is the sole bread earner",,

in his family and is burdened with plenty of responsibilities.,,

8. The Narcotics Control Bureau vide its reply dated 25.06.2020 vehemently opposed the prayer made by the applicant seeking the grant of bail,,

submitting to the effect that there has been no recovery of commercial quantity in the instant case and thus, the embargo of Section 37 of the NDPS",,

Act, 1985 applies and that the bail application is liable to be dismissed.",,

9. The Narcotics Control Bureau further submitted that the applicant and the other co-accused persons are being prosecuted for the contravention of,,

a huge commercial quantity of contraband with it having been submitted that the accused Gaurav Mehta booked the parcels containing a total of 333,,

grams of Tramadol and 8 grams of Lorazepam which were destined to USA and a further huge commercial quantity of 1.360 Kgs of Tramadol and,,

11.2 grams of Clonazepam from his warehouse with 12 Kgs of Tramadol, 168 grams of Lorazepam and 600 grams of Zolpidem were also recovered",,

from near Laxmi Nagar, Metro Station, Delhi. The Narcotics Control Bureau has further submitted that the connectivity of all the accused persons",,

inclusive of the petitioner is apparent through money transactions amongst all of them with it having been submitted that the applicant is wholly,,

involved in the criminal conspiracy in the illicit trafficking of narcotic and psychotropic substances and in the abetment of the same, which is a heinous",,

crime against society at large- spoiling the younger generation and causing tremendous financial losses to the economy of the country.,,

10. The Narcotics Control Bureau had submitted further vide its reply dated 25.06.2020 that apart from the specific embargo under Section 37 of the,,

NDPS Act, 1985 to the grant of bail in the instant case, there are statements recorded under Section 67 of the NDPS Act, 1985 which are admissible",,

in evidence and have evidentiary value and are relevant to prosecute the applicant and the co-accused persons. Inter alia, the applicant has submitted",,

that there are sufficient facts on the record to show that the applicant had a culpable mental state to commit the offence and the presumption,,

necessarily to be drawn in terms of Section 35 of the NDPS Act, 1985 negates the grant of bail to the applicant for the presumption in relation to the",,

culpable mental state, can only be rebutted by the applicant during trial.",,

No.",Dated,Particulars

1.,17.08.2018,"DuringÂ theÂ searchÂ ofÂ premisesÂ ofÂ

accusedÂ Gaurav Mehta al K-121, West Patel

Nagar, New Delhi, various typesÂ Â ofÂ Â

psychotropicÂ Â substancesÂ Â andÂ Â fourÂ Â

parcels

readyÂ toÂ sendÂ toÂ foreignÂ countries,Â

wereÂ recovered,

such as â€

(i)Â VellumÂ tabletsÂ inÂ transparentÂ

polytheneÂ packet having the weight of 1.136 kg;

(As per CRCLÂ report, the sample was positive for

Tramadol)

(ii) Xanex tablets 60 grams; (as per CRCL report,

the sample was negative)

(iii)Â Â 126Â Â stripsÂ Â ofÂ Â AlprazolamÂ Â

tabletsÂ Â (oneÂ Â strip containedÂ 10Â

tablets)Â andÂ weightÂ orÂ 10Â tabletsÂ isÂ 1

gram,Â therefore,Â theÂ recoveredÂ weightÂ

isÂ 126Â grams; (AsÂ Â perÂ Â CRCLÂ Â ,Â Â

report,Â Â theÂ Â sampleÂ Â wasÂ Â found

Negative)

(iv)Â Â 73Â Â stripsÂ Â orÂ Â LorazepamÂ Â

tabletsÂ Â (oneÂ Â strip containedÂ 10Â tablets)

Â andÂ weightÂ ofÂ 10Â tabletsÂ isÂ 1 gram,

therefore, the recovered weight is 73 grams; (As per

CRCL report, the sample was found Negative)

(v)Â Â 64Â Â stripsÂ Â ofÂ Â PhentermineÂ Â

tabletsÂ Â (oneÂ Â strip containedÂ 10Â

tablets)Â andÂ weightÂ ofÂ 10Â tablets Â isÂ 4

gram,Â therefore,Â theÂ recoveredÂ weightÂ

isÂ 256Â grams; (As per CRCL report, test not

available)

(vi) 10 strips of V.C. Don tablets (one stripÂ

contained

10Â tablets)Â andÂ weightÂ ofÂ Â 10Â tabletsÂ

isÂ 10Â grams, therefore, the recovered weight is

100 grams; (As per CRCL report, test not available)

(vii)Â Â 11.5Â Â stripsÂ Â ofÂ Â ClonazepamÂ Â

tabletsÂ Â (oneÂ Â strip containedÂ 10Â

tablets,Â however,Â tabletsÂ inÂ openÂ form

wereÂ Â found)Â Â andÂ Â weightÂ Â ofÂ Â

5Â Â tabletsÂ Â isÂ Â 5Â Â grams, therefore, the

recovered weight isÂ 115 grams. (As per

CR.CLÂ Â Â Â report,Â Â Â Â testÂ Â Â Â

wasÂ Â Â Â foundÂ Â Â Â positiveÂ Â Â Â for

Clonazepam)

(viii) From the 1st parcel, out of four parcels, tablets

of 140 grams;

(ix) From the 2nd parcel, out of four parcels, tablets

or 325 grams;

(x) From the 3rd parcel, out of four parcels, tablets of

305 grams;

(xi) From the 4th parcel, out of four parcels, tablets

of 185 grams;

TheÂ accusedÂ GauravÂ MehtaÂ revealedÂ

theÂ namesÂ of BhaskarÂ KhatnaniÂ andÂ

AmitÂ RanjanÂ (petitioner)Â and otherÂ

personsÂ providingÂ theÂ saidÂ tablets.Â

(TheseÂ facts arc mentioned in para No.8 of the

complaint.).

2.,17.08.2018,"AccusedÂ BhaskarÂ KhatnaniÂ inÂ hisÂ

statementÂ under sectionÂ Â 67Â Â ofÂ Â

theÂ Â NDPSÂ Â ActÂ Â disclosedÂ Â thatÂ

Â today (17.08.2018),Â ManishÂ willÂ sendÂ

medicineÂ cartonÂ for himÂ andÂ heÂ willÂ

receiveÂ theÂ sameÂ atÂ LaxmiÂ Nagar Metro

Station, Near gate No.2, in between 2100 hours toÂ

2200Â hoursÂ throughÂ hisÂ boys.Â HeÂ

furtherÂ disclosed thatÂ oneÂ AmitÂ Ranjan,Â

associateÂ ofÂ ManishÂ MohanÂ is running a

call centre, at Patna who is also involved in thisÂ Â

businessÂ Â ofÂ Â psychotropicÂ Â tabletsÂ Â

andÂ Â Manish Mohan arranged the medicines

from Mumbai through parcel/courier.

3.,17.08.2018,"During the search conducted at near Gate No.2,

Laxmi NagarÂ Â MetroÂ Â Station,Â Â theÂ Â

followingÂ Â recoveryÂ Â was effected:-

(i)Â 2000Â stripsÂ ofÂ tabletsÂ ofÂ V.C.Â

DonÂ (Hydrocodone), eachÂ stripÂ containingÂ

10Â tabletsÂ andÂ theÂ weightÂ ofÂ 10

tabletsÂ wasÂ 6Â gramsÂ andÂ theÂ totalÂ

weightÂ wasÂ 12Â kg; (AsÂ perÂ CRCLÂ

report,Â testÂ wasÂ foundÂ positiveÂ for

Tramadol)

(ii)Â 168Â stripsÂ ofÂ AtivanÂ 2Â mg.Â

LorazepamÂ (oneÂ strip containingÂ 30Â

tablets,Â theÂ weightÂ ofÂ 30Â tabletsÂ wasÂ 2

gramsÂ andÂ theÂ totalÂ weightÂ wasÂ 336Â

grams.Â (AsÂ per CRCL report, test was found

positive for Lorazepam)

(iii)Â Â 1000Â Â stripsÂ Â ofÂ Â

PhentermineÂ Â K-25,Â Â eachÂ Â strip

containing 10 tablets and the weight of 10 tablets was

4.5 grams and the total weight was 4.500 grams.

(Test Not available at CRCL)

(iv)Â 300Â stripsÂ ofÂ Zolpidem,Â eachÂ stripÂ

containingÂ 10 tablets and the weightÂ ofÂ 10

tablets was 2 gramsÂ and the total weight was 600

grams. (As per CRCL report, test was found positive

for Zolpidem)

(TheseÂ Â factsÂ Â haveÂ Â beenÂ Â

mentionedÂ Â Â inÂ Â detailÂ Â in paragraph

No.19 of the complaint).

4.,17.08.2018,"ManishÂ MohanÂ alsoÂ disclosedÂ inÂ hisÂ

statementÂ under SectionÂ 67Â ofÂ theÂ

NDPSÂ ActÂ thatÂ hisÂ friendÂ Amit Ranjan

(petitioner) was running a call centre at Patna

whoÂ Â wasÂ Â alsoÂ Â dealingÂ Â inÂ Â on-

lineÂ Â medicinesÂ Â like Alprazolam,Â Â Â Â Â

Ativan,Â Â Â Â Â Zolpidam,Â Â Â Â Â

ValiumÂ Â Â Â Â and HydrocodineÂ etc.Â andÂ

AmitÂ RanjanÂ (petitioner)Â send theÂ aboveÂ

mentionedÂ tabletsÂ fromÂ MumbaiÂ toÂ the

address of Manish Mohan i.e. Vinay

Pharmaceuticals andÂ heÂ sentÂ theÂ sameÂ

toÂ theÂ addressÂ asÂ toldÂ byÂ Amit Ranjan

(petitioner).

5.,13.09.2018,"Accused Bhaskar Khatnani was in touch with

accused GauravÂ Â Mehta,Â Â PulkitÂ Â

KumarÂ Â andÂ Â AmitÂ Â Ranjan

(petitioner)Â Â Â Â asÂ Â Â Â perÂ Â Â Â

CDRÂ Â Â Â ofÂ Â Â Â mobileÂ Â Â Â phone

No.7838998758 of accused Bhaskar Khatnani.

6.,13.09.2018,"AccusedÂ PulkitÂ KumarÂ wasÂ inÂ touchÂ

withÂ accused BhaskarÂ KhatnaniÂ andÂ AmitÂ

RanjanÂ (petitioner)Â as perÂ CDRÂ ofÂ

mobileÂ phoneÂ No.7398124016Â ofÂ accused

Pulkit Kumar.

7.,13.09.2018,"AccusedÂ ManishÂ MohanÂ wasÂ inÂ touchÂ

withÂ accused Amit Ranjan (petitioner) as per CDR

of mobile phone No.9858492882 of accused Manish

Mohan.

8.,18.09.2018,"Letters were sent to Zonal Director, NCB, Patna and

ZonalÂ Director,Â NCB,Â Mumbai,Â forÂ

conductingÂ the follow up action against Amit

Ranjan (petitioner).

9.,"27.09.2018

(date writtenÂ Â as

27.08.2018)","ReplyÂ Â wasÂ Â receivedÂ Â fromÂ Â

ZonalÂ Â Director,Â Â NCB MumbaiÂ providing

Â theÂ detailsÂ ofÂ deliveriesÂ madeÂ to

VinayÂ Â Â Â PharmaceuticalsÂ Â Â Â

throughÂ Â Â Â K.K.Â Â Â Â Pharma Solution

(paragraph No.41 of the complaint).

10.,31.10.2018,"Letter was sent to Foreign Trade Development

Officer toÂ provideÂ theÂ detailsÂ ofÂ firmÂ

DesiÂ EmartÂ (firmÂ of accused Gaurav Mehta),

M/s Tocsys Tcchno Solution Pvt. Ltd. ( company

owned by Pulkit Kumar) and M/s NGAÂ Â

InfotechÂ Â (OPC)Â Â PrivateÂ Â LimitedÂ Â

(company ownedÂ byÂ AmitÂ RanjanÂ -Â

petitioner)Â andÂ asÂ perÂ the report,Â Â

noÂ Â suchÂ Â companiesÂ Â arcÂ Â

availableÂ Â inÂ Â the databaseÂ Â Â ofÂ Â Â

ForeignÂ Â Â TradeÂ Â Â DevelopmentÂ Â Â

office (paragraph No.66 of the complaint).

11.,04.01.2019,"Notice under section 67 of the NDPS Act was given

to AmitÂ RanjanÂ (petitioner)Â toÂ appearÂ inÂ

NCBÂ officeÂ on 10.01.2019 but he did not appear.

12.,21.01.2019,"On passing Freezing Order under section 68-F( l)

read with section 68 of the NDPS Act passed by Shri

Arvind KumarÂ Ojha,Â IOÂ andÂ wasÂ

submittedÂ toÂ Competent Authority for

confirmation and show cause notice was issued to

Amit Ranjan (petitioner) and other accused persons.

Amit Ranjan (petitioner) appeared before the

Competent Authority through his counsel.

13.,--,"DuringÂ theÂ financialÂ investigationÂ

conductedÂ byÂ the respondent, it was found that a

sum of Rs.69,36,943/- wereÂ transferredÂ

throughÂ theÂ accountÂ maintainedÂ by accused

Pulkit Kumar to the account of Amit Ranjan

(petitioner).

14.,05.02.2019,"AmitÂ RanjanÂ (petitioner)Â wasÂ inÂ regularÂ

touchÂ with accused ManishÂ Mohan on the basis

ofÂ mirror image andÂ dataÂ extractionÂ ofÂ

theÂ mobileÂ phoneÂ ofÂ accused Manish

Mohan.

15.,05.07.2019,"PetitionerÂ filedÂ anticipatoryÂ bailÂ videÂ

bailÂ application No. 1102/2019 in this Honâ€™ble

Court and the same was dismissedÂ withÂ

detailedÂ order.Â (TheÂ copyÂ ofÂ theÂ said

order is being enclosed herewith).

16.,19.07.2019,"AmitÂ Â RanjanÂ Â (petitioner)Â Â wasÂ Â

declaredÂ Â proclaimed offender in this case by the

Ld. Trial Court.

17.,06.09.2019,"AmitÂ RanjanÂ (petitioner)Â surrenderedÂ

himselfÂ inÂ this caseÂ beforeÂ theÂ Ld.Â

TrialÂ CourtÂ andÂ noticeÂ under section 67 of

the NDPS Act was served upon him and inÂ

responseÂ thereto,Â heÂ gaveÂ hisÂ voluntaryÂ

statement, wherein also he admitted the commission

or offence of thisÂ caseÂ andÂ theÂ saidÂ

statementÂ isÂ admissibleÂ inÂ law. (TheÂ

copyÂ ofÂ theÂ statementÂ givenÂ byÂ

accusedÂ Amit Ranjan (petitioner) typed copy and

English translation of the same is being enclosed

herewith.

20. A reference is made through this flow chart to paragraph 41 of the complaint, which reads to the effect:-",,

â€œ41. That a letter dated 18.09.2018 was sent to Zonal Director, NCB/ Patna Zonal Unit and Zonal Director, NCB/Mumbai Zonal Unit for",,

conducting follow up action against the suspect Amit Ranjan and a reply dated 27.08.2018 was received from Zonal Director, NCB/Mumbai",,

Zonal Unit thereby providing the details of the deliveries made to Vinay Pharmaceuticals through K.K Pharma Solutions.â€,,

21. The complaint as initially filed makes mention of K.K. Pharma Solutions, 11/408, 4th Floor, S.R.A Building BKC, Motilal Nehru Nagar, Bandra",,

Kurla Complex, Tel-26509900 in paragraph 18 of the complaint, which reads to the effect:-",,

â€œ18. That in compliance of disclosure/ information dated 17.08.2018 a team of NCB officers was constituted by Sh. Anand Kumar, IO,",,

NCB along Sh. Rajeev Sahrawat, IO Sh. Rajesh Kumar Yadav, IO Sh.Sanjeev Kumar Hawaldar, Sh. Sandeep Kumar, Sh. Babu Lal Driver",,

and Sh. N.P Singh Driver. Before leaving the NCB office Sh. Anand Kumar, IO NCB collected the seal of NARCOTIC CONTROL",,

BUREAU, DZU-1 from seal Incharge Sh. V. V. Singh, Superintended, NCB and also collected the Field Testing Kit, Electronic Weighing",,

Machine, IO kit and all the accessories required In search and seizure proceedings. Thereafter the NCB team left the NCB office at about",,

1930 hrs. to Laxmi Nagar, New Delhi in two government vehicles no. DL12CN2249 (Maruti Suzuki Dezire) driven by Sh. N.P. Singh and",,

Vehicle no. DL 12CK 7897 driven by Sh. Babu Lal and reached Laxmi Nagar Metro Station, New Delhi at about 2030 hrs. After reaching",,

their Sh. Anand Kumar, IO NCB mounted surveillance in that area. Thereafter Sh. Anand Kumar, IO, NCB requested 4-5 persons present",,

there to join the NCB team as independent witnesses during the search and seizure proceedings to which all of them left the place cited their,,

personal reasons. At about 2050 hrs. two persons came to that place having two cartons in their hands and stand near the stairs of gate no.,,

2 of Laxmi Nagar Station. Upon the basis of suspicion about the parcels carried by those persons sh. Anand kumar, IO, NCB reached to",,

them and after introduction of himself and the NCB team asked both of them about the suspected parcels to which they replied that the said,,

parcel was given to them by Manish of Vinay Medical store to hand over the same to a person at Laxmi Nagar Metro Station who will tell,,

them his location on mobile where he was standing. Thereafter Sh. Anand Kumar, IO NCB shared the Information with them and asked",,

them to become independent witnesses for the search, and seizure proceedings to which they agreed voluntarily. On one of the carton",,

senders name was mentioned as K.K. Pharma Solutions, 11/408, 4th Floor, S.R.A Building BKC, Motilal Nehru Nagar, Bandra Kurla",,

Complex, Tel-26509900. Thereafter the all of them with the cartons came at the narrow road near to the stairs of Laxmi Nagar Metro",,

Station and checked one of the parcel after opening the same were found to contain 2000 strips of tablets of V.C. Don (Hydrocodone) Batch,,

No. AC-5252, Vax Pharmaceuticals Ltd B.D. Industrial Estate 235, 3ro Floor, Goa (Each Strip contained 10 Tablets). The on weight of 10",,

tablets the same came out to be 6 grams. Two samples of 10 tablets each from two strips of V.C Don (Hydrocodone) were taken and were put,,

in Zip lock pouches separately and those zip lock pouches were again put in a white colour envelop, pasted its mouth and given mark- M-1",,

& M-2. Thereafter the opened strips along with the 10 loose tablets were put in a transparent polythene (zip lock,) and then remaining strips",,

of Hydrocodone and the empty strip were again put inside the same carton and was closed with the tape and was put In a plastic gunny bag,,

and its mouth was stitched and was marked-M.â€,,

22. The supplementary complaint against the applicant filed by the Narcotics Control Bureau dated 08.01.2020 does not put forth any averment,,

against the applicant in relation to the association of the applicant with K.K. Pharma Solutions through whom contraband tablets were sent allegedly,,

by the applicant to the co-accused Manish Mohan at Vinay Pharmaceuticals as allegedly disclosed by Manish Mohan, the co-accused in his statement",,

under Section 67 of the NDPS Act, 1985.",,

23. The flow chart, the initial complaint dated 12.02.2019 and the supplementary complaint dated 08.01.2020 relate to allegations against the applicant",,

of his alleged voluntary disclosure statement under Section 67 of the NDPS Act, 1985 of indulgence in illegal business of trafficking of narcotic and",,

psychotropic substances sent to different countries along with co-accused Manish Mohan, Pulkit Kumar and Bhaskar Khatnani and of conversations",,

between the applicant and co-accused persons.,,

24. On behalf of either side, reliance is placed on a catena of verdicts.",,

25. Reliance was placed on behalf of the applicant on the verdict of the Honâ€™ble High Court of Himachal Pradesh at Shimla in â€œRehmat Ali,,

Vs. State of Himachal Pradeshâ€ [Crl.MP (M) No.203/2019] with observations therein to the effect:-,,

â€œ7. Leaving everything aside, careful perusal of Section 37 of the Act, which prohibits the grant of bail to person found carrying",,

commercial quantity of contraband suggests that person accused of offence punishable under section 19, 24 or 27A cannot be ordered to be",,

released on bail unless public prosecutor is given opportunity to oppose the application, if any, made for his release on bail. In case at hand,",,

neither commercial quantity of contraband, came to be recovered from the conscious possession of the present bail petitioner or his car, nor",,

case, if any, came to be registered against him under Section 24 or 27-A of the Act and such, rigors of section 37 are not attracted in, the",,

present case.""",,

26. Reliance was also placed on behalf of the applicant on the verdict of this Court in â€œShravan Kumar Vs. State of NCT of Delhiâ€ in Bail,,

Application No.175/2018 with observations therein to the effect:-,,

â€œUndisputedly, the case of the prosecution qua the petitioner is based upon circumstantial evidence. No recovery of any contraband was",,

affected from the petitioner. Allegations against him are that he conspired with co-accuses persons for committing the aforesaid offences.,,

The petitioner was arrested after about twenty days of the arrest of the co-accused Jagdish on 05.09.2017. The prosecution has placed,,

reliance only on call detail record between the petitioner and co accused Saroj Subudhi. It is alleged that accused sent Mobile,,

No.8860594548 or the accused Jagdish to co accused Saroj from Mobile No. 9650310668 through SMS, This circumstance alone at this",,

stage is not enough to deny bail to the petitioner despite bar under section 37 of the NDPS Act."",",,

in â€œRamesh Kumar Vs. Narcotics Control Bureauâ€ [259 (2019) DLT 661] with observations therein to the effect:-,,

Learned Counsel for respondent has drawn attention of this Court to Status Report and submits that money of illicit charas has been",,

deposited ln the bank account of petitioner by his co-accused and that petitioner was aware that his father is involved in trafficking of,,

charas and that the petitioner has not been able to explain deposit of Rs. 40,000/- In his bank account on one occasion and Rs. 50,000/- on",,

another occasion. It Is also submitted by learned Counsel for respondent that petitioner's father is absconding and if petitioner is released on,,

ball, then he is also likely to abscond. However, learned Counsel for respondent had not disputed that Trial Court's order of 27th August,",,

2018 granting bail to co-accused Gaurav has attained finality.,,

Â Â Upon hearing and on perusal of complaint in question and the order of 27th August, 2018 granting ball to coaccused Gaurav, I find",,

that the case of Petitioner is on better footing than the case of co-accused Gaurav as no recovery has been effected from petitioner and it,,

prima facie appears that petitioner's bank deposit is not relatable to the recovery in question. The apprehension of respondent of petitioner,,

indulging in such type of offences is misplaced, as petitioner has clean antecedents. In any case, petitioner deserves bail on the ground of",,

parity with co-accused Gaurav.""",,

27. Reliance was also placed on behalf of the applicant on the verdict of the Honâ€™ble Supreme Court in â€œSurinder Kumar Khanna Vs.,,

Intelligence Officer Directorate of Revenue Intelligenceâ€ (Crl. Appeal No.949/2018) with observations therein to the effect:-,,

14. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of",,

the appellant to the crime in question, We are thus left with only one piece of material that is the confessional statements of the co-accused",,

as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as,,

a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the court. In the,,

absence of any substantive evidence it would be inappropriate to base the conviction of co-accused. The appellant is therefore entitled to be,,

acquitted of the charges leveled against him.'',",,

in â€œDataram Singh Vs. State of UP and Othersâ€ Crl. Appeal no.227/2018, a verdict dated 06.02.2018 with observations therein to the effect:-",,

â€œ""A human attitude is required to adopted by a Judge, while dealing with an application or remanding a suspect or an person to police",,

custody or Judicial custody. There are several reasons for this including maintaining the dignity of an person, howsoever poor that the",,

person might be, the requirement of Article 21 of the Constitution and the facts that there is enormous overcrowding In the prisons, leading",,

to social and other problems as noticed by this Court In Re-Inhuman Conditions in 1382 Prisons.''.,,

28. Reliance was also placed on behalf of the applicant on the verdict of the Honâ€™ble High Court of Rajasthan in â€œKishan Singh Vs. State of,,

Rajasthanâ€ [1995 Cri LJ 3947] with observations therein to the effect:-,,

6. ..... Section 29 of the Act proclaims that whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under the",,

Act shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and",,

notwithstanding anything contained in Section 116 of the IPC, be punishable with the punishment provided for the offence. Thus, the",,

abetment may take place either by instigation or conspiracy or by intentional act. But for the proof of abetment or conspiracy, there must be",,

joining together two or more persons in the conspiracy and an act of illegal omission or commission of an offence must take place in,,

pursuance thereof. Therefore, the actual complicity which precedes the actual commission of an offence by the principal offender either",,

through substantial assistance for the commission of the offence or through some word or conduct which instigated the commission of the,,

offence should be prima facie shown. It is true that formation of conspiracy can be inferred from circumstantial evidence or by conduct and,,

act of parties because affirmative evidence is not always possible. But for establishing the charge for abetment and criminal conspiracy,,

under Section 29 of the Act, the prosecution must adduce some independent & corroborative legal evidence against the accused person.â€",,

29. Reliance was also placed on behalf of the applicant on the verdict of the Honâ€™ble Supreme Court of India in â€œU.P. Vs. Amarmani,,

Tripathiâ€ [2005 (8) SCC 21] with observations therein to the effect:-,,

â€œ18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable,,

ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the,,

event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and",,

standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with;,,

and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi [(2001) 4 SCC 280 : 2001",,

SCC (Cri) 674] and Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179] ]. While a vague,,

allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character",,

that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or,,

tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in",,

Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] : (SCC pp. 535-36, para 11)",,

â€œ11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious,,

manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation,,

of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was",,

being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would,,

suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following",,

factors also before granting bail; they are:,,

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.,,

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.,,

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598 :,,

2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124] .)â€,",,

and in â€œState of Rajasthan Vs. Balchandâ€ (1977) 4 SCC 308 with observations therein to the effect:-,,

2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or",,

thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the",,

petitioner who seeks enlargement on bail from the court. We do not intend to be exhaustive but only illustrative.â€,",,

to contend to the effect that there is nothing whatsoever on the record to suggest the conspiracy between the applicant and the other co-accused,,

persons in trafficking of the contraband of psychotropic substances.,,

30. Reliance is also placed on behalf of the applicant on the verdict of this Court in ""Mohit Aggarwal Vs. Narcotics Control Bureauâ€ in Bail",,

Application No.2585/2020 (MANU/DE/0488/2021) with specific reference to observations in paragraphs 32 & 35, which read to the effect:-",,

â€œ32. Keeping in mind the observations made in Tofan Singh (Supra) and upon a bare reading of petitioner's statement recorded on,,

09.01.2020, it is apparent that petitioner has not admitted that he was a party to the transaction or in possession of recovered and seized",,

contraband substance. Though he has admitted in custody to have illegally traded the tablets under the NDPS (which is now inadmissible,",,

unless proved otherwise) but since no recovery has been affected from his person or shop in this case, prosecution can only attempt to prove",,

its case on the basis of circumstantial evidence, that is to say, by corroborating the call detail record or other material available and 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.,,

35. In the case in hand, investigation is said to be complete. As per impugned order dated 21.07.2020 complaint/charge sheet has already",,

been filed, however, besides confessional statement recorded under Section 67 of NDPS Act, no other material is forthcoming. Since no",,

incriminating material was recovered at the instance of petitioner, this strengthens the view of this Court that petitioner is not likely to",,

commit offence if released on bail. Moreover, nothing stops the prosecution to prove its case on merits during trial. In the aforesaid view of",,

the case, requirements under Section 37 of NDPS Act are fulfilled.â€.",,

Â Though, SLP (Crl.) Nos.6128-6129/2021 have been filed against this judgment, there has been no stay of the operation of the judgment of this Court",,

in Bail Appl. No.2585/2020, and reliance is also placed on behalf of the applicant on the verdict of this Court in â€œJitender Bhati Vs. NCBâ€ in Bail",,

Appln.4005/2020 (MANU/DE/0503/2021) with specific reference to observations in paragraphs 10-12 & 14, which read to the effect:-",,

â€œ10. The foremost plea taken by petitioner is that at the first available opportunity he had retracted from the confessional statement,,

recorded under Section 67 of NDPS Act.,,

11. Recently, the Hon'ble Supreme Court, by majority view while answering to a reference with regard to the evidentiary value of Section 67",,

of NDPS Act in Tofan Singh (Supra) 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"". Reciting a dissenting view in Tofan Singh (Supra), Hon'ble Ms. Justice Indira",,

Banerjee observed that ""she was unable to agree that a statement recorded under Section 67 of the NDPS Act cannot be used against an",,

accused offender in the trial of an offence under the NDPS Act"".",,

12. Pertinently, besides confessional statement recorded under Section 67 of NDPS Act, no other evidence is available on record to show",,

petitioner's involvement in the offence in question. No recovery has been made at the instance of petitioner. Since petitioner has retracted,,

from his confessional statement so recorded, its' worth has be proved at trial by the prosecution.",,

14. In the present case, no recovery has been made from petitioner. Admittedly, on the day his ID was used, he was on leave and no other",,

similar case is pending against him. No material such as call detail record etc. has been placed by the prosecution to establish that petitioner,,

was in contact with the main accused, namely, Monte Alexander. Accordingly, this Court has a reason to believe that petitioner is not likely",,

to commit the offence if released on bail. Charge under Section 29 NDPS Act has already been framed by the trial court against the,,

petitioner and thereby, prosecution has an opportunity to prove its case during trial. Hence, requirements under Section 37 of NDPS Act are",,

fulfilled.â€,",,

and in â€œDalip Singh Vs. The State (NCT of Delhi)â€ 256(2019) DLT 721 with specific reference to observations in paragraphs 11 & 12, which",,

read to the effect:-,,

â€œ11. On perusal of the record, it is prima facie seen that there are two major missing links in the case of the prosecution. There is no link",,

established by the prosecution between the petitioner with the alleged supplier Manoj. Further the entire case of the prosecution, in so far as",,

petitioner is concerned is circumstantial i.e. based solely on disclosure 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.â€,",,

and reliance is also placed on behalf of the applicant on the verdict of the Bombay High Court in â€œShashikant Prabhu Vs. Rahul Saini, NCB &",,

Anr.â€ in Bail Application 198/2019"" with specific reference to observations in paragraphs 8 & 9, which read to the effect:-",,

â€œ8. Undisputedly, information was received by the intelligence Officer on 13th March 2018 which was reduced in writing. Information",,

was relating to visit of accused No.1 at Infinity Mall with Hashish. Information also referred to visit of accused No.2 at the spot to accept,,

delivery of contraband. Pursuant to the receipt of information, the respondent arranged team for conducting raid. Accused No.1, 2 and 3",,

were arrested. Contraband was recovered from the bag which was found to be containing Hashish. Thus, the information did not refer to",,

involvement of the applicants in aforesaid transaction. The respondents are relying upon the statement of accused No.2 which was recorded,,

during the course of investigation after recovery of the narcotics drugs. In the said statements the co-accused i.e. accused No.2 has stated,,

that applicants were party to the Â transactions relating to drugs business conducted by him. It is pertinent to note that, there was no cogent",,

evidence to establish that the applicants had any point of time transported, sold, delivered the drugs at the instance of accused no.2. The",,

prosecution is relying upon the call data record to show the link of accused No.4 with accused No.2. The prosecution is relying upon the,,

bank transaction to establish link of accused No.5 with accused No.2. Bank transaction also referred to the depositing the amount into,,

account of other persons. The accused No.2 himself has stated that the applicants were working with him. Merely on account of call,,

exchanged between accused No.4 and accused No.2, no inference could be drawn, showing his involvement in the crime. The bank",,

transactions relied upon by the prosecution to show the involvement of accused No.5 would not lead to inference of his involvement in the,,

crime. Prima facie, there is nothing to indicate that the amount was relating to sell or procurement of drug. No other incriminating evidence",,

to show involvement of the applicants is on record. There is no recovery from the applicants. Accused No.5 was working as manager with,,

accused No.2 as stated by him show assuming that bank transaction prima facie, it may not lead to the inference of commission of crime.",,

The statements under Section 67 appear to have been retracted. Sans statements of the applicant and the co-accused which were recorded,,

under section 67 of the NDPS Act, apparently, there is no cogent evidence against the applicants to show their involvement in the crime.",,

Learned Advocates for both the applicants have heavily relied upon the decision of the Apex Court in the case of Tofan Singh Vs. State of,,

Tamil Nadu delivered in Criminal Appeal No. 152 of 2013. In the said decision the majority opinion is as follows:-,,

â€œ155. We answer the reference by stating:,,

(i) That the officers who are invested with powers under section 53 of the NDPS Act are â€œpolice officersâ€ within the meaning of section,,

25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provision of section 25 of",,

the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.",,

(ii)Â 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.â€ .,,

9. Thus, the Apex Court has held that the statement under Section 67 of the NDPS Act cannot be relied upon. In any case, there is no",,

corroborative evidence to substantiate the averment in the statements of the accused. Hence, the embargo under Section 37 of the NDPS Act",,

would not cause impediment for granting bail to the applicants. Hence, the following order :-",,

ORDER,,

i) Bail Application Nos. 198 of 2019 & 1617 of 2019 are allowed.,,

ii) The applicants are directed to be released on bail in connection with NDPS Special Case No.170 of 2018 registered with Narcotics,,

Control Bureau, Mumbai on executing P.R. bond in the sum of Rs.30,000/- each with one or more sureties in the like amount;",,

iii) The applicants shall report to Narcotics Control Bureau, Mumbai, once in a month on first Saturday of the month between 11.00 a.m. to",,

1.00 p.m. till further orders;,,

iv) Applications stand disposed of accordingly.â€,",,

on the verdict of the Honâ€™ble High Court of Punjab & Haryana in â€œDaljit Singh Vs. State of Haryanaâ€ CRM No. 12997/2020 with reference,,

to observations therein to the effect:-,,

â€œHaving heard learned counsel for the parties, I find that the petitioner having involved on the basis of disclosure statement of co-",,

accused namely Balbir and Rajinder is hit by the ratio of Tofan Singh vs State of Tamil Nadu, Criminal Appeal No.152 of 2013 wherein it",,

has been observed that the officers who are invested with powers under Section 53 of NDPS Act are the police officers within the meaning of,,

Section 25 of the Evidence Act. Any confessional statement made before the police officer would be hit by Section 25 of the Evidence Act.,,

Statement under Section 67 of NDPS Act cannot be used as a confessional statement in the trial of an offence under NDPS Act.â€,",,

and on the verdict of the Honâ€™ble Supreme Court in ''Surinder Kumar Khanna Vs. Intelligence Supreme Officer Directorate of Revenue,,

Intelligence"" (2018) 8 SCC 271 with specific reference to observations in paragraph 14, which reads to the effect:-",,

â€œ14. â€¦â€¦,,

In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-,,

accused. The appellant is therefore entitled to be acquitted of the charges levelled against him. We, therefore, accept this appeal, set aside",,

the orders of conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless his custody is required in,,

connection with any other offence.â€,,

to contend to similar effect.,,

31. Furthermore, reliance was also placed on behalf of the applicant on the verdict of the Honâ€™ble Supreme Court in â€œTofan Singh V. State of",,

Tamil Naduâ€ 2021 (4) SCC 1 to submit to the effect that it has been categorically laid down therein that the statement recorded under Section 67 of,,

the NDPS Act, 1985, cannot be used as a confessional statement in the trial of an offence under the NDPS Act, 1985 and that officers were vested",,

with powers under Section 53 of the NDPS Act, 1985 are â€œpolice officersâ€ within the meaning of Section 25 of the Indian Evidence Act, 1872, as",,

a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Indian Evidence Act, 1872 and",,

cannot be taken into account in order to convict an accused under the NDPS Act, 1985.",,

32. It has thus been submitted on behalf of the applicant that there is not an iota of evidence that the Investigating Agency has collected to bring forth,,

that there are reasonable grounds to satisfy the Court for believing that the applicant is guilty of the commission of any offence punishable under the,,

NDPS Act, 1985 or that he is likely to commit any offence whilst on bail, in as much as, the applicant has clean antecedents.",,

33. The Narcotics Control Bureau has relied upon on the disclosure statements dated 06.09.2019 of the applicant under Section 67 of the NDPS Act,",,

1985 and also on the disclosure statements made by the co-accused persons in the instant case to contend to the effect that the applicant was wholly,,

involved in the conspiracy with the co-accused persons in illegal trafficking of psychotropic substances.,,

34. Reliance was also placed on behalf of the Narcotics Control Bureau on the verdict of this Court in â€œNitish Amrut Bhai Patel Versus NCBâ€,,

2021 Crl.L.J.180 a verdict dated 14.07.2020 with specific reference to observations in paragraphs 84 to 88, which read to the effect:-",,

â€œ84. At this stage it is relevant to refer to section 53A of the NDPS Act and the same is set out below:,,

53A. Relevancy of statements under certain circumstances.--",,

(1) A statement made and signed by a person before any officer empowered under section 53 for the investigation of offences, during the",,

course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under",,

this Act, the truth of the facts which it contains,--",,

(a) when the person who made the statement is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by the",,

adverse party, or whose presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the",,

court considers unreasonable; or,,

(b) when the person who made the statement is examined as a witness in the case before the court and the court is of the opinion that having,,

regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice.",,

(2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceedings under this Act or the rules or orders made",,

thereunder, other than a proceeding before a court, as they apply in relation to a proceeding before a court.""",,

85. By virtue of Section 53A of the Act, a statement signed by a person before any officer empowered under Section 53 for investigation of",,

offences, during the course of inquiry, would be relevant for the purpose of proving the truth of the fact stated in the said statement in",,

circumstances set out in clause (a) of sub-section (1) of Section 53A of the Act.,,

86. In the present circumstances, none of the said circumstances exist. Nonetheless, the facts stated by Nitesh Patel and his statements have",,

been accepted as proved by relying on the provisions of Section 67 of the NDPS Act. It is doubtful whether the provisions of Section 67 of the,,

NDPS Act can be read in a manner so as to circumvent the conditions as set out in clause (a) of sub-section (1) of Section 53A of the NDPS,,

Act. The question whether the statement made by accused under Section 67 of the Act is admissible in evidence has been referred by the,,

Supreme Court to a Larger Bench rendered in Tofan Singh v. State of Tamilnadu: MANU/SC/1031/2013 : (2013) 13 SCC 344. However,",,

for the purposes of the present petition, this court is proceeding on the basis that such statements are admissible.",,

87. Having stated the above, it is also necessary to bear in mind that an incriminating statement recorded under Section 67 of the Act is a",,

weak evidence and must be tested and evaluated before the same can be accepted. First of all, the Court must be satisfied that such a",,

statement has been made voluntarily without any fear, coercion or duress. In addition, such statement can only be used to corroborate other",,

evidence. The Supreme Court in the case of Kashmira Singh v. State of Madhya Pradesh: MANU/SC/0031/1952 : AIR 1952 SC 159 had,,

examined the evidentiary value of a confession made by a co-accused. After referring to various decisions, the Supreme Court held as",,

under:-,,

10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to",,

marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a",,

conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the",,

confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it",,

would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the,,

other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.""",,

88 . The decision in the case of Kashmira Singh (supra) was approved by the Constitution Bench of the Supreme Court in Hari Charan Kurmi v. State,,

of Bihar: MANU/SC/0059/1964 : (1964) 6 SCR 623. The relevant observations made by the Supreme Court are set out below:,,

Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it",,

is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court",,

cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has,,

formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to",,

receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the",,

effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya,,

Pradesh where the decision of the Privy Council in Bhuboni Sahu's case has been cited with approval."",",,

and on the verdict of the Honâ€™ble High Court of Himachal Pradesh in â€œKaramvir Versus Narcotics Control Bureau, Chandigarhâ€",,

MANU/HP/ 1143/2020 a verdict dated 07.12.2020 with specific reference to observations in paragraphs 16 to 20, which read to the effect:-",,

â€œ16. Second ground for enlarging the petitioner on bail is that he has been implicated in present case only on the basis of statement under,,

Section 67 of NDPS Act, whereas on the basis of statement of Section 67 of NDPS Act, as held by Apex Court in Criminal Appeal No. 152 of",,

2013, titled Tofan Singh vs. State of Tamil Nadu, decided on 29.10.2020, a statement recorded under Section 67 of NDPS Act cannot be",,

used as a confessional statement in the trial of an offence under NDPS Act.,,

17. There is no dispute with respect to law laid down by the Supreme Court, relied upon by petitioner. However, as a matter of fact in",,

present case petitioner has not been involved in the case only on the basis of statement recorded under Section 67 of NDPS Act, but, as",,

claimed by prosecution, a prior information about his involvement in procuring, trafficking and selling the charas and opium was received",,

by a Surveillance Assistant of NCB on 7.11.2019, which was reduced into writing and placed before the Officer of rank of Superintendent",,

NCB whereupon a team was constituted and that information was substantiated on recovery of charas and opium from vehicle wherein,,

Kuldeep and Hardeep (accused) were found transporting the contraband and involvement of Karamvir petitioner has further been,,

substantiated by CDRs. record and also on recovery of a silver small weighing machine and electronic compact scale from his residence,,

and therefore, it is not a case where petitioner has been involved only on basis of voluntary statement recorded under Section 67 of NDPS",,

Act or only on the basis of disclosure statement made by co-accused. Therefore, plea of petitioner on this count is not sustainable.",,

18. Veracity of evidence narrated by prosecution is to be evaluated by trial Court. Facts of prosecution case and contentions of petitioner,,

have been reproduced herein-above only for bringing the necessary facts on record, which were essential to be considered for adjudication",,

of this petition.,,

19. Without commenting upon merits of prosecution case as well as contentions raised by petitioner, but for nature and gravity of offence,",,

impact thereof on society and quantum of contraband recovered and also that petitioner has not been involved only on the basis of statement,,

made under Section 67 of NDPS Act, I do not find any reason for enlarging the petitioner on bail at this stage.",,

20. In view of above, petition is dismissed. Any observation made in this order shall not affect the merits of case in any manner and will",,

strictly confine for the disposal of this bail application.â€,",,

35. Reliance was also placed on behalf of the Narcotics Control Bureau on the verdict of the Honâ€™ble High Court of Tamil Nadu in â€œK.,,

Sirajudeen & Others Versus Stateâ€ MANU/TN/7372/2020 a verdict dated 23.12.2020 with specific reference to observations in paragraphs 24 to 27,",,

which read to the effect:-,,

â€œ24. This Court perused the entire materials on record including the statement recorded under Section 67 of the NDPS Act from the,,

petitioners and also from the other accused. This Court also carefully considered the judgments relied on by the learned counsel for the,,

petitioners as well as the learned Special Public Prosecutor for NCB Cases. This is a case where commercial quantity of 22.695 kg of,,

banned substances was seized from the accused. On specific information the respondent kept watch and they arrested two persons who had,,

come to collect the contraband under the lorry receipt bearing L.R. No. 10166028 dated 11.03.2020 at Chennai. Thereafter on the,,

confession recorded from the arrested accused in Chennai and the consigner copy of the corresponding Lorry Receipt was seized from A4,,

R. Vadivel at Villupuram. Subsequently the contraband had been subjected to chemical analysis and it was found to be tramadol a banned,,

substance. There is prima facie materials to show that the consignment was booked by the petitioner in Crl.O.P. No. 11934 of 2020 and,,

received by the petitioner in Crl.O.P. No. 11336 of 2020. Further, the statements recorded from K. Sirajudeen and Sai @ Thiyagarajan",,

corroborates with the statement recorded from R. Vadivel. It was contended the counsel for the petitioner that the officer who are,,

investigated with the powers under Section 53 of the NDPS act are ""Police Officers"" within the meaning of Section 25 of the Evidence Act).",,

As a result of which in confessional statement made to them would be barred under provision Section 25 of the Evidence Act and it cannot be,,

taken into account in order to convict an accused under the NDPS Act and further the statement recorded under Section 67 of NDPS Act,,

cannot be used as confessional statement in the trial of offence under the NDPS Act.,,

25. This Court is of the opinion that the evidentiary value of the confessional statement recorded from the accused and it is admissibility can,,

be tested at that time of trial while letting in evidence. However, in this case dehors the alleged confessional statement recorded from the",,

accused under Section 67 of the NDPS Act there are other prima facie materials to show that R. Vadivel is the person who has booked,,

contraband from Villupuram and K. Sirajudeen and Sai @ Thiyagarajan are the persons who have received it at Chennai. Further, there",,

are materials to show that the accused were in constant touch with each other through whatsapp. Further, one Gopinath had stated that the",,

moulds were supplied by him to K. Sirajudeen who had identified him to be one Mujith to him. Later, the said Gopinath had identified that K.",,

Sirajudeen is the person who had introduced him to be Mujith. Further, Arul Prakasam and wife Sengamalam have stated that they had",,

allowed the accused to manufacture tablets in their factory on the belief they were multivitamins tablets and that they were not aware that,,

they were banned substance. Further, there is material to show that the accused R. Vadivel had sent a message to staff of Vipul Jain asking",,

about the availability of banned substance when such being so, there are materials available other than the confession statement to link the",,

accused to the offence.,,

26 . In view of the reasons stated above, the petitioners have not made out any reasonable ground for believing that they are not guilty of",,

such offence and that they are not likely to commit offence while on bail and thereby, these applications for bail stand dismissed.",,

27. It is made clear that none of the observation made in this bail orders shall have any bearing on the trial since it is only for the purpose of,,

deciding the bail petitions.â€,,

36. Reliance was also placed on behalf of the Narcotics Control Bureau on the verdicts of the Supreme Court in â€œSanjay Kumar Kedia Versus,,

NCB & othersâ€ MANU/SC/8158/2007 a verdict dated 03.12.2007 with specific reference to observations in paragraphs 7 to 9, which read to the",,

effect:-,,

â€œ7. It is clear from the Schedule to the Act that the two drugs phentermine and butalbital are psychotropic substances and therefore fall,,

within the prohibition contained in Section 8 thereof. The appellant has been charged for offences punishable under Sections 24 and 29 of,,

the Act. These Sections are re-produced below:,,

24 . Punishment for external dealings in narcotic drugs and psychotropic substances in contravention of Section 12.- Whoever engages in,,

or controls any trade whereby a narcotic drug or a psychotropic substance is obtained outside India and supplied to any person outside,,

India without the previous authorization of the Central Government or otherwise than in accordance with the conditions (if any) of such,,

authorization granted under Section 12, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years",,

but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but may extend to two,,

lakh rupees:,,

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.",,

29. Punishment for abetment and criminal conspiracy. - (1) Whoever abets, or is a party to a criminal conspiracy to commit an offence",,

punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of",,

such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code (45 of 1860), be punishable",,

with the punishment provided for the offence.,,

(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is",,

a party to the criminal conspiracy to the commission of any act in a place without and beyond India which -(a) would constitute an offence,,

if committed within India; or,,

(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions",,

required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable,,

under this Chapter, if committed within India.",,

8. A perusal of Section 24 would show that it deals with the engagement or control of a trade in narcotic drugs and psychotropic substances,,

controlled and supplied outside India and Section 29 provides for the penalty arising out of an abetment or criminal conspiracy to commit,,

an offence under Chapter IV which includes Section 24. We have accordingly examined the facts of the case in the light of the argument of,,

Mr Tulsi that the companies only provided third-party data and information without any knowledge as to the commission of an offence,,

under the Act. We have gone through the affidavit of Shri A.P. Siddiqui, Deputy Director, NCB and reproduce the conclusions drawn on the",,

investigation, in his words:",,

â€œ(i) The accused and its associates are not intermediary as defined under Section 79 of the said Act as their acts and deeds were not,,

simply restricted to provision of third-party data or information without having knowledge as to commission of offence under the NDPS Act.,,

The companies (Xponse Technologies Ltd. and Xponse IT Services Pvt. Ltd. headed by Sanjay Kedia) have designed, developed, hosted the",,

pharmaceutical websites and were using these websites, huge quantity of psychotropic substances (phentermine and butalbital) have been",,

distributed in USA with the help of his associates. Following are the online pharmacy websites which are owned by Xponse or Sanjay,,

Kedia:,,

(1) Brotherpharmacy.comandLessRx.com : Brotherpharmacy.com, online pharmacy was identified as a marketing website (front end) for",,

pharmaceutical drugs. LessRx.com has been identified as a â€˜back endâ€™ site which was being utilised to process orders for,,

pharmaceutical drugs through brotherpharmacy.com. LessRx.com's registrant and administrative contact was listed True Value Pharmacy,,

located at 29-B, Rabindra Sarani, Kolkata, India 700 073, Telephone No. 033-2335-7621 which is the address of Sanjay Kedia.",,

LessRx.com's IP address is 203.86.100.95. The following websites were also utilising this IP address:,,

aladiespharmacy.com,,

expressphentermine.com,,

familyonlinepharmacy.com,,

onlineexpresspharmacy.com,,

shippedlipitor.com,,

Domain name servers for LessRx.com (IP address : 203.86.100.95) were ns.palcomonline.com and ns2palcomline.com. The LessRx.com's,,

website hosting company was identified as Palcom Web Pvt. Ltd., C-56/14, 1st Floor, Institutional Area, Sector 62, Noida 201 301. Sanjay",,

Kedia entrusted the hosting work to Palcom at VSNL, Delhi. These servers have been seized. Voluntary statement of Shri Ashish Chaudhary,",,

Prop. of Palcom Web Pvt. Ltd. indicates that he maintained the websites on behalf of Xponse.,,

According to the bank records, funds have been wired from Brothers Pharmacy Inc.'s Washington Mutual Bank Account No. 0971709674",,

to Xponse IT Services Pvt. Ltd., ABN AMRO Bank Account No. 1029985, Kolkata.",,

(2) Deliveredmedicine.com : A review of the Xponse's website xponseit.com was conducted and observed an advertisement for Xponserx.,,

That Xponserx was described as a software platform developed for the purpose of powering online pharmacies. Xponserx was designed to,,

process internet pharmacy orders by allowing customers to order drugs. Drug Enforcement Administration (DEA), USA conducted a",,

â€˜whoisâ€™ reverse look-up on domain name. Xponserx.com was at domainstools.com and it revealed that xponserx.com was registered to,,

Xponse IT Services Pvt. Ltd., Sanjay Kedia, 29-B, Rabindra Sarani, 12-E, 3rd Floor, Kolkata, W.B. 700 073. Telephone No. +91-",,

9830252828 was also provided for Xponse. Two websites were featured on the xponseit.com website as featured clients and these were,,

deliveredmedicine.com and truevalueprescriptions.com. Review indicated that these two websites were internet pharmacies.,,

Consequently a â€˜whoisâ€™ reverse look-up on domain name deliveredmedicine.com at domainstools.com conducted by DEA revealed,,

that it was registered to Xponse Inc., 2760 Park Ave., Santa Clara, CA, USA which is the address of Sanjay Kedia.",,

(3) Truevalueprescriptions.com : Review of this website indicated that this website was an internet pharmacy. In addition,,

Truevalueprescriptions listed Phentermine as a drug available for sale. It appeared that orders for drugs could be made without a,,

prescription from the Truevalue website, it was noted that orders for drugs could be placed without seeing a doctor. According to the",,

website, a customer can complete an online questionnaire when placing the order for a drug in lieu of a physical exam in a physician's",,

office. Toll-free Telephone No. 800-590-5942 was provided on the Truevalue website for customer service.,,

DEA conducted a â€˜who isâ€™ reverse look-up on domain name truevalueprescriptions.com at domainstools.com and revealed that IP,,

address was 203.86.100.76 and the server that hosts the website was located at Palcom, Delhi which also belongs to Xponse.",,

From the above facts it is clear that Xponse Technologies Ltd. and Xponse IT Services Pvt. Ltd. were not acting merely as a network service,,

provider but were actually running internet pharmacy and dealing with prescription drugs like Phentermine and Butalbital.â€,,

9. We thus find that the appellant and his associates were not innocent intermediaries or network service providers as defined under Section,,

79 of the Technology Act but the said business was only a facade and camouflage for more sinister activity. In this situation, Section 79 will",,

not grant immunity to an accused who has violated the provisions of the Act as this provision gives immunity from prosecution for an offence,,

only under Technology Act itself.â€,",,

and in â€œSayarabano Versus State of Maharashtraâ€ MANU/SC/7081 /2007 a verdict dated 08.02.2007 with specific reference to observations in,,

paragraph 15, which reads to the effect:-",,

â€œ15. In our opinion, criminal cases are decided on facts and on evidence rather than on case law and precedents. In the case on hand,",,

there is ample evidence to show that even prior to the incident in question, the appellant used to beat the deceased and illtreat her. It is in the",,

light of the said fact that other evidence requires to be considered. In our view, both the Courts were right in relying upon the second dying",,

declaration of the deceased treating it as true disclosure of facts by the deceased Halimabi. In the light of the evidence of parents of the,,

deceased (PW2 and PW3), Dr. Kishore (PW6) and Special Judicial Magistrate (PW5), it cannot be said that the Courts below had committed",,

any error and the conviction deserves to be set aside.â€,,

37. The verdicts in Karamvir (supra) and K. Sirajudeen & Others (supra) are verdicts after the date 29.10.2020 when the verdict in Tofan Singh,,

(supra) was pronounced by the Honâ€™ble Supreme Court. It is essential to observe that the verdict in Karamvir (supra) specifically observes vide,,

paragraph 17 thereof to the effect:-,,

â€œ17. There is no dispute with respect to law laid down by the Supreme Court, relied upon by petitioner. However, as a matter of fact in",,

present case petitioner has not been involved in the case only on the basis of statement recorded under Section 67 of NDPS Act, but, as",,

claimed by prosecution, a prior information about his involvement in procuring, trafficking and selling the charas and opium was received",,

by a Surveillance Assistant of NCB on 7.11.2019, which was reduced into writing and placed before the Officer of rank of Superintendent",,

NCB whereupon a team was constituted and that information was substantiated on recovery of charas and opium from vehicle wherein,,

Kuldeep and Hardeep (accused) were found transporting the contraband and involvement of Karamvir petitioner has further been,,

substantiated by CDRs. record and also on recovery of a silver small weighing machine and electronic compact scale from his residence,,

and therefore, it is not a case where petitioner has been involved only on basis of voluntary statement recorded under Section 67 of NDPS",,

Act or only on the basis of disclosure statement made by co-accused. Therefore, plea of petitioner on this count is not sustainable.,",,

thus, apparently in Karamvir (supra), there was more than the voluntary statement under Section 67 of the NDPS Act, 1985 that had been relied upon",,

by the NCB which allegedly incriminated that accused, though, there is a mention of CDR details in paragraph 17 in Karamvir (supra), the allegations",,

against that accused were also in relation to the alleged recovery of a small silver weighing machine and an electronic compact scale from his,,

residence connected with the alleged commission of the offence apart from a prior information about the involvement of that accused in procuring,",,

trafficking and selling of Charas and Opium received by a Surveillance Assistant of the NCB on 07.11.2019 which had been reduced into writing and,,

had been placed before the Officer of the rank of the Superintendent, NCB, whereupon the team was constituted.",,

38. The verdict in K. Sirajudeen & Others (supra) dated 23.12.2020 with the observations in paragraph 24 & 25 of that verdict relied upon on behalf,,

of the NCB read to the effect:-,,

â€œ24. This Court perused the entire materials on record including the statement recorded under Section 67 of the NDPS Act from the,,

petitioners and also from the other accused. This Court also carefully considered the judgments relied on by the learned counsel for the,,

petitioners as well as the learned Special Public Prosecutor for NCB Cases. This is a case where commercial quantity of 22.695 kg of,,

banned substances was seized from the accused. On specific information the respondent kept watch and they arrested two persons who had,,

come to collect the contraband under the lorry receipt bearing L.R. No. 10166028 dated 11.03.2020 at Chennai. Thereafter on the,,

confession recorded from the arrested accused in Chennai and the consigner copy of the corresponding Lorry Receipt was seized from A4,,

R. Vadivel at Villupuram. Subsequently the contraband had been subjected to chemical analysis and it was found to be tramadol a banded,,