TMI Blog2021 (3) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 16-3-2021 - HON'BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT Petitioner: Mr. Ramesh Gupta, Senior Advocate with Mr.S.P.Singh Rathore Mr. Shailendera Singh, Advocates Respondent: Mr. Rajesh Manchanda, Standing Counsel for NCB with Mr. Rajat Manchanda, Advocate ORDER 1. In case SC No. SC/1334/2020, titled as NCB Vs. Gaurav Aggarwal Ors, petitioner is facing trial for the offences under Sections 8/22 29 of Narcotic Drugs and Psychotropic Substances Act, 1985. Petitioner was arrested by the officials of Narcotic Control Bureau ( NCB ) on 11.01.2020 and is in judicial custody since 11.01.2020. Vide present petition, petitioner is seeking bail while claiming to be innocent and of having been falsely implicated in the present case. 2. The present petition has been filed on the ground that petitioner is a law abiding citizen and is running 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. Petitioner has pleaded that he has maintained all records complying with all the terms and conditions of the license. Petitioner has fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar, Intelligence Officer, collected relevant information about Gaurav Kumar of Agra and Manoj Kumar of Ludhiana from DTDC office and as mentioned on Airway Bill and prepared disclosure to this effect. The disclosure statement of Manoj Kumar Yadav, Intelligence Officer was placed before Amit Kumar Tiwary, Superintendent, who directed Sh. Sachin Kumar, Intelligence Officer to take action against Gaurav Kumar of Agra and Manoj Kumar of Ludhiana as per law. 5. On the next day, i.e. 10.01.2020, after making relevant entries in the test memo form, the samples seized from the office of DTDC on 09.01.2020 were sent to Chemical Engineer, CRCL Pusa Road, New Delhi through Sh. Yogesh Kumar Sharma, Sepoy. On the same day i.e. 10.01.2020 Manoj Kumar Yadav, Junior Intelligence Officer, gave his seizure report to Amit Kumar Tiwary, Superintendent. Consequent upon marking of aforesaid disclosure, Manoj Kumar Yadav, Junior Intelligence Officer on 10.01.2020 along with members of his fresh constituted raiding team reached at the office of DTDC, Mathura Road, Agra and Gaurav Kumar Aggarwal was called at the DTDC office by their staff members and there he was served with notice under Section 67 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntelligence Officer, along with his raiding team, headed towards office of DTDC at Ludhiana. When Manoj Kumar reached at DTDC office and asked for his parcel, Sachin Kumar, Intelligence Officer, spoke to him and told him their purpose of coming there and on asking about the parcel, Manoj Kumar stated that he is a whole seller of medicines and is involved in the sale and purchase of medicines and he accepted to have placed an order for 50,000 tablets of Taramol from Gaurav Kumar Aggarwal and that he had come to collect the parcel and also that he had all the relevant documents at his shop Tredwell Health Care and if the NCB officials accompany him to the shop, he can show the entire documents. The NCB team members along with local police officials visited his shop and Manoj Kumar showed certain documents, which were found to be not relating to narcotics. On verification of those documents, it revealed that Manoj Kumar did not have any document with regard to sale and purchase of narcotic drugs. Upon further inspection of stock available at his shop, it was further revealed that a huge quantity of different narcotic drugs were available at his shop, without any relevant document in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable grounds exist that accused is not guilty of the offence alleged. The reasonable ground mean something more than prima facie ground. Merely the factum that there is no documentary evidence is no ground that no prima facie case is made out. The judgment of Surender Khanna as relied by the Ld. Counsel for accused, is not applicable at this stage. Apex Court in case titled as Mohd. Fasrin Vs. State Crl. Appeal No. 296/2014 dated 04.09.2019 held that even if confession made to the investigating officers are held to be admissible under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985, the Court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. Thus, it cannot be held that at this stage, statement u/S 67 of NDPS Act cannot be looked to see the prima facie case. At this stage, this Court is not supposed to appreciate the probative value of the material on record however, only has to see the prima facie case. The recovered contraband is commercial in nature thus, there is definite bar u/S 37 NDPS Act over the release of accused on bail however, it cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhya Pradesh AIR 1952 SC 159; Mohd. Fasrin Vs. State 2019 (8) SCC 811 and Surinder Kumar Khanna Vs. Intelligence Officer Directorate of Revenue Intelligence (2018) 8 SCC 271. Reliance has also been placed upon recent decision of Hon ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu 2020 SCC OnLine SC 882. 18. On the other hand, learned Special Public Prosecutor appearing for respondent /NCB supported the impugned order dated 21.07.2020 rejecting petitioner s bail application and submitted that 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, the present petition deserves to be dismissed. Reliance was placed upon decision of Hon ble Supreme Court in State of Kerala Ors. Vs. Rajesh Ors. (2020) 12 SCC 122. 19. Learned Special Public Prosecutor appearing for respondent /NCB further submitted that petitioner has tendered his voluntary statement under Section 67 of NDPS Act before the competent officer, wherein he has admitted his guilt. He further submitted that the analysis of call detail records of petitioner and other co-accused in this case shows cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him to them and they told him that they had come to inquire about 50,000 tramadol tablets which were sent by Gaurav Kumar Aggarwal to Manoj in Ludhiana and he admitted that a few days ago he had purchased 05 boxes of tramadol tablets from Pradeep Jaipuria illegally, which were bought by Gaurav Kumar Aggarwal, out of which he had returned 03 boxes due to money crisis and those 03 boxes he had returned to Pradeep Japuria. In his statement, petitioner admitted that he along with Gaurav Kumar Aggarwal had escorted the NCB team to the godown of Pradeep Jaipuria. Besides petitioner has admitted that on two-three occasions, he had sold narcotic tablets purchased from Pradeep Jaipuria to Gaurav Kumar Aggarwal for extra amount of ₹ 2,000/-. 26. The petitioner s statement was recorded for the second time on 10.01.2020 at the NCB office, however, its copy has not been placed on record. Petitioner had retracted from his statements on the first available opportunity made available to him. 27. 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) has held as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in course of any inquiry or other proceeding, which is taken down in writing and signed by the person making it, may in certain circumstances, be relevant for the purpose of proving, in any prosecution for an offence under the NDPS Act, the truth of the facts it contains. 30. Further, on the value of a confession made by a person, Hon ble Ms.Justice Indira Banerjee held as under:- 308. A confession made by an accused person is irrelevant in a criminal proceeding, if it appears to the Court that the confessions may have been elicited by any inducement, threat or promise from a person in authority and sufficient, in the opinion of the Court, to give the accused person reasonable grounds, for supposing that by making the confession, he would gain any advantage or avoid any disadvantage in respect of proceedings against him. 309. As observed by this Court in the State of Rajasthan v. Raja Ram confessions may be divided into two classes i.e. judicial and extra-judicial. Judicial confessions are those which are made before a Magistrate or a Court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontraband 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. 33. Respondent/NCB has placed reliance upon Hon ble Supreme Court s decision in State of Kerala Vs. Rajesh (Supra). In the said decision, the Hon ble Supreme Court dealt with a case where the post arrest bail of accused was dismissed by the trial court holding that there was prima facie material to presume that the accused had committed offence punishable under Section 20(b) (ii) (c) and Section 29 of NDPS Act and the High Court without noticing Section 37 of the NDPS Act granted bail to the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
