1. By way of this petition filed under Section 439 of the Code of Criminal Procedure, the petitioner has prayed for grant of bail in NCB Crime No. 43/2021, dated 23.06.2021, registered under Sections 8, 20, 29 & 60 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the NDPS Act’) at Narcotic Control Bureau, Chandigarh Zonal Unit, Sector 25(W), Chandigarh.

2. Learned Senior Counsel for the petitioner has argued that the petitioner is innocent and he has been falsely implicated in the present case, allegedly on the basis of a statement, which has been made by one of the accused, from whose active possession, as per the respondent, the alleged contraband was recovered. Learned counsel has submitted that besides the statement of the main accused, recorded under Section 67 of the NDPS Act, there is no material available with the respondent, which connects the petitioner with the commission of offence alleged against him and in this view of the matter, the petitioner is entitled for bail, more so, in view of the law laid down by the Hon’ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu (2021) 4 Supreme Court Cases 1, in which, Hon’ble Supreme Court has held that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in trial under the NDPS Act and further the judgment of the Hon’ble Supreme Court in State by (NCB) Bengaluru Vs. Pallulabid Ahmad Arimutta and Anr., Special Leave to Appeal (Crl.) No. 242 of 2022, in which case, Hon’ble Supreme Court while dealing with an appeal preferred by the prosecution against the grant of bail by the High Court in that case, upheld the judgment passed by the High Court, granting bail to the accused therein, on the ground that the accused stood arrested only on the basis of the statement of other accused made under Section 67 of the NDPS Act. On these basis, it has been prayed that the petition be allowed and the petitioner be ordered to be released on bail.

3. The petition has been opposed by learned Senior Counsel appearing for the respondent on the ground that as commercial quantity of contraband has been recovered from the main accused and further the petitioner has been named as the source, from whom the contraband was purchased by the said accused, therefore, no case is made out for release of the petitioner. Learned Senior Counsel has also argued that in the course of investigation, details of telephonic conversation between the petitioner and main accused have also emerged. Learned Senior Counsel further argued that taking into consideration the stage at which the trial is, release of the petitioner may otherwise cause prejudice to a fair trial. Learned Senior Counsel relied upon the judgment of the Hon’ble Supreme Court in Union of India through Narcotics Control Bureau, Lucknow Vs. Md. Nawaz Khan (2021) 10 Supreme Court Cases 100 and on the strength thereof, he submitted that the present petition being devoid of any merit, be dismissed.

4. In rebuttal, learned counsel for the petitioner has submitted that the issue of CDR details has also been taken care of by the Hon’ble Supreme Court in State by (NCB) Bengaluru (supra) and in terms of the said judgment, on the basis of CDR details coupled with the statement of other accused under Section 67 of the NDPS Act, accused cannot be kept in custody unless there is other material on record, which demonstrates the involvement of the accused with the commission of offence.

5. I have heard learned counsel for the parties and also gone through the status report and the record of the case which was made available for perusal of the Court by the respondent.

6. In the present case, as per the prosecution, two persons, namely, Shri Sanjay Kumar and Shri Gopal Krishan were apprehended by the team of NCB on the basis of a secret information on 23.06.2021 near Swarghat, District Bilaspur, from whose possession, contraband weighing 8 kg.300 grams was recovered. After the arrest of Sanjay Kumar and Gopal Krishan, in the course of investigation, statement was made by Sanjay Kumar that the contraband was purchased by the accused from the present petitioner. Thereafter, investigation was made in the matter and the same also revealed the details of telephonic conversation between the petitioner and the said accused, i.e., Sanjay Kumar and Gopal Krishan. On the basis of statement of Sanjay Kumar that the contraband was purchased from Dayal Singh and the present petitioner, the petitioner was arrested on 05.01.2022 and is presently stated to be in judicial custody.

7. In terms of the record, which was made available by the respondent for perusal of this Court, there is no other material on record connecting the petitioner with the commission of offence alleged against him except the statement of Sanjay Kumar and the call details which the respondent has stated to have collected. To be slightly more illustrative, the record does not demonstrate any money trail etc. between Sanjay Kumar and Gopal Krishan on one hand and the petitioner on the other hand.

8. Be that as it may, as mentioned hereinabove, the material on the strength of which the petitioner was arrested, primarily is the statement of main accused under Section 67 of the NDPS Act and call details.

9. Hon’ble Supreme Court in Tofan Singh’s case (supra) by a majority decision has held as under:-

“158.2. 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.”

10. On the basis of this judgment, Hon’ble Supreme Court in State by (NCB) Bengaluru (supra), in paras-9 & 10 of the said judgment has been pleased to hold as under:-

“9. Having gone through the records alongwith the tabulated statement of the respondents submitted on behalf of the petitioner-NCB and on carefully perusing the impugned orders passed in each case, it emerges that except for the voluntary statements of A-1 and A-2 in the first case and that of the respondents themselves recorded under Section 67 of the NDPS Act, it appears, prima facie, that no substantial material was available with the prosecution at the time of arrest to connect the respondents with the allegations levelled against them of indulging in drug trafficking. It has not been denied by the prosecution that except for the respondent in SLP (Crl.) No. 1569/2021, none of the other respondents were found to be in possession of commercial quantities of psychotropic substances, as contemplated under the NDPS Act.

10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused 6 (2021) 4 SCC 1 Page 9 of 12 2022 LiveLaw (SC) 63 Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021 under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th September, 2019, 14th January, 2020, 16th January, 2020, 19th December, 2019 and 20th January, 2020 passed in SLP (Crl.) No@ Diary No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-74/2021 and SLP (Crl.) No. 2080/2021 respectively. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless.”

11. A perusal of said two judgments, which have been referred to hereinabove, demonstrates that by placing reliance upon the mandate of law declared in Tofan Singh’s case (supra), the Hon’ble Supreme Court in State by (NCB) Bengaluru (supra), facts wherein were akin to the one involved in the present, upheld the order of bail which was granted by the High Court in favour of the accused, who was arrested on the basis of the statement of other accused recorded under Section 67 of the NDPS Act as well as CDR details. Therefore, in these circumstances, this Court is of the considered view that in the absence of there being any other material available with the prosecution connecting the petitioner with the commission of offence alleged against him, except the statement of the accused recorded under Section 67 of the NDPS Act and CDR details, the confessional/voluntary statement of the accused/co-accused, cannot form basis for not ordering his release.

12. Coming to the judgment of the Hon’ble Supreme Court relied upon by learned Senior Counsel for the respondent, the facts therein, in the considered view of this Court, were on completely different footing, wherein the accused was in fact one of the occupant of the vehicle from which the contraband was recovered and further the Hon’ble Supreme Court concurred with the submissions so raised by the learned Assistant Solicitor General of India before it that independent of the statement so recorded under Section 67 of the NDPS Act, there were valid reasons for denial of bail, which had emerged at that stage in the case concerned. Therefore, with all humility, this Court records that the findings returned by the Hon’ble Supreme Court in the said judgment do not help the case of the respondent.

13. Incidentally, Dayal Singh against whom also allegations are akin to the present petitioner has already been released on bail by this Court vide order dated 20th June, 2022, passed in Criminal Miscellaneous Petition (Main) No. 824 of 2022.

14. Accordingly, this petition is allowed and the petitioner is ordered to be released on bail in NCB Crime No. 43/2021, dated 23.06.2021, registered under Sections 8, 20, 29 & 60 of the Narcotic Drugs and Psychotropic Substances Act at Narcotic Control Bureau, Chandigarh Zonal Unit, Sector 25(W), Chandigarh, subject to his furnishing bail bonds in the sum of rupees five lacs with two sureties of the like amount to the satisfaction of learned Trial Court. In addition, the petitioner shall abide by the following conditions:-

“(a) He shall attend the Trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

(d) He shall not leave the territory of India without prior permission of the Court.”

15. It is clarified that the findings which have been returned by this Court while deciding this petition are only for the purpose of adjudication of the present bail application and learned Trial Court shall not be influenced by any of the findings so returned by this Court in the adjudication of these petitions during trial of the case. It is further clarified that in case the petitioner does not comply with the conditions which have been imposed upon him while granting the present bail, the respondent shall be at liberty to approach this Court for the cancellation of bail.

16. Downloaded copy of this order is valid for compliance.