Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2021 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (3) TMI 974 - HC - Indian LawsSearch and seizure proceedings in the presence of independent witness - Smuggling - reasons to believe that offence is committed - 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 - HELD THAT:- 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 [2020 (11) TMI 55 - SUPREME COURT] 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”. 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. Fulfillment of conditions stipulated under Section 37 of NDPS Act or not - HELD THAT:- 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. Presumption under Section 35 of NDPS Act - HELD THAT:- The Hon’ble Supreme Court in Noor Aga [2008 (7) TMI 853 - SUPREME COURT] held that the provisions of Sections 35 & 54 of the Act are not ultra vires the Constitution of India, however, procedural requirements laid down therein are required to be strictly complied with. Applying the dictum of Noor Aga to the facts of this case, It is found that the burden is on the prosecution to prove that accused is guilt and also on the accused to prove his innocence and this recourse can only be taken during trial. The petitioner is directed to be released forthwith, subject to conditions imposed.
|