1. The present petition has been filed by the petitioner for quashing the order dated 09.11.2021 passed by the learned Additional Sessions Judge, Jammu (hereinafter to be referred as the trial court) in case No. 18/2021/complaint, titled, Union of India, Narcotics Control Bureau through Intelligence Officer vs. Mohd. Sharief and others, whereby the charge for commission of offences under section 8, 20 and 29 of the NDPS Act has been framed against the petitioner.

2. The order dated 09.11.2021 has been impugned on the ground that the petitioner has been sought to be implicated in the case merely on the basis of the confessional statement of the co-accused and his own confession under section 67 of the NDPS Act and there is no other evidence to substantiate the allegations against the petitioner.

3. Response has been filed by the respondent in which factual aspects have been narrated and it has been averred that there is abundant evidence on record besides the statement of the accused, in the form of call detail reports wherein it has been evident that the accused persons were regularly in contact with each other.

4. Mr. M. A. Bhat, learned counsel for the petitioner has vehemently argued that the statement made by the accused as well as the co-accused under section 67 of the NDPS Act is not admissible in view of the law laid down in the judgment of the Hon’ble Apex Court in Toofan Singh v State of Tamil Nadu (2021)4 SCC 1 [LQ/SC/2023/6 ;] and further that there is no evidence against the petitioner so as to warrant the framing of charge for commission of offence under sections 8, 20 and 29 of the NDPS Act. He also placed reliance upon the judgment of this court in Aejaz Ismail Sayed vs Union of India And Another, 2021 (4) JKJ 292(HC).

5. Per contra, Vishal Sharma, learned ASGI has vehemently argued that the plea raised by the petitioner that the statement of the accused recorded under section 67 of the Narcotic Drugs And Psychotropic Substances Act, 1985 cannot be used against the other petitioner, cannot be considered at this stage and the petitioner can project the said plea before the trial court during the trial. He further argued that there are call detail reports as well to demonstrate that the petitioner was in contact with the other accused.

6. Heard and perused the scanned record.

7. The brief facts necessary for the disposal of the present petition are that Intelligence Officer received secret information from a reliable source on 11.08.2020 at 1400 hours that one Mohd. Sharief S/o Mohd. Hussian R/o Budhal is carrying huge quantity of Narcotic Drugs (Charas) in his truck bearing registration No. JK02 BM 1963 and coming towards Jammu via Ban Toll Plaza Nagrota on 11.08.2020 in between 1600 hours to 1700 hours. On receiving the said information, the Zonal Director, NCB Jammu directed Sh. Deepak Kumar, Intelligence Officer to constitute a team to undertake the operation and the team consisting of Sh. Hemant Kukreti, Intelligence Officer along with other team members of Narcotic Control Bureau reached Ban Toll Plaza at about 1545 hours. After reaching Ban Toll Plaza, Deepak Kumar Intelligence Officer approached persons who were standing at Ban Toll Plaza. At about 1700 hours, NCB team noticed that one truck bearing registration No. JK02BM 1963 reached Ban Toll Plaza, Jammu. When the said truck just crossed the toll, the Intelligence Officer immediately signaled to stop the truck. When the truck was stopped by the driver, Intelligence Officer introduced himself and asked the driver of the truck to disclose his identity, on which the driver disclosed his name as Mohd. Sharief S/o Mohd. Hussain R/o. Ward No. 01 Tehsil Budhal, District Rajouri. The vehicle was searched. During the search of the cabin of the said vehicle, four packets wrapped with white coloured tape and one packet wrapped with brown coloured tape were found. On further search of the truck, three more boxes were found in the cargo of the said truck. The NCB team recovered three apple boxes in the back side top line of the cargo of the said truck. After opening of the said three apple boxes, 08 packets wrapped with white coloured cello tape and 22 packets wrapped with brown coloured cello tape were found. On being asked by the Intelligence Officer, Mohd. Sharief stated that all the packets contain charas. Total 35 packets were recovered from truck bearing registration No. JK02 BM 1963 and they were found to be 42.500/-Kgs including packing materials. The net weight of the charas was found to be 41.200 Kgs without packing material. The samples were also extracted. The statement of Mohd Sharief was recorded under section 67 of the NDPS Act and he disclosed that the seized contraband i.e. charas has been handed over by two persons, namely, Ghulam Mohd Bhat petitioner herein and Ghulam Mohi Ud Din Tak and gave their mobile numbers. Mohd. Sharief further disclosed that the seized contraband has to be delivered in Mumbai.

8. During the course of investigation, Satish Kumar, Intelligence Officer also examined Ghulam Mohd. Bhat, petitioner herein and Ghulam Mohi Ud Din Tak. They disclosed in their statements that the seized contraband has been handed over by three persons, namely, Mohd Shagir, Farooq Ahmed and Nazir alias Mukdam to them. Further, pursuant to letters addressed to the Nodal Officers of Bharti Airtel Ltd, Reliance JIO Infocomm Ltd and BSNL Ltd to provide CDRs and CAFs of the seized/suspected mobile numbers and on analyzing the CDRs received from the respective service providers, it was found that all the accused persons and suspected persons were in regular contact with each other.

9. After completion of the investigation, the complaint was filed by the complainant reserving the right to file supplementary complaint against any persons who were later on found to be involved in the crime.

10. The learned trial court, after hearing the arguments on charge/discharge, vide order that 09.11.2021 framed the charge for commission of offences under section 8, 20 and 29 of the NDPS Act against the accused including the petitioner. The learned trial court while ordering the framing of charge took the note of judgment of the Apex Court in Toofan Singh (supra). From the record, it is evident that the respondent for the purpose of prosecuting the accused has relied upon the statement made under section 67 of the NDPS Act and also the CDRs between the accused persons to demonstrate that they were in direct contact with each other. So far as statements made under section 67 of theare concerned, the same are not admissible in evidence as laid down by the Apex Court in Toofan Singh (supra).

11. Now it is to be seen whether the petitioner can seek the benefit of the judgment rendered by Apex Court in Toofan Singh at this stage and can seek his discharge. It would be advantageous to take note of the observations made by the Apex Court, while considering the validity of the order granting bail in anticipation of arrest in case tilted, State of Haryana vs Smarth Kumar, 2022 Live Law (SC) 622. From the observations made by the Hon’ble Apex Court, it is clear that the accused can take the advantage of decision of the Toofan Singh vs Tamil Nadu, (2021) 4 SCC 1 [LQ/SC/2020/754] at the time of arguing the regular bail application or at the time of final hearing after the conclusion of the trial. More so, in the instant case the prosecution has relied upon the call detail reports of the accused besides the statements of the accused made under section 67 of NDPS Act. The call detail reports form the circumstantial evidence (Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100) [LQ/SC/2021/3058 ;] and they cannot be ignored while considering the issue of charge/discharge.

12. In view of what has been discussed above, the petition is found to be without merit and is accordingly dismissed.