Mohd. Faiz Alam Khan, J.

1. Heard Shri Anil Kumar Sharma, learned counsel for the applicant as well as Shri Digvijay Nath Dubey, learned counsel appearing for the D.R.I. and perused the record.

2. This bail application has been moved by the accused/applicant- Sujit Kumar for grant of bail, in D.R.I. Case No.07 of 2019, under Sections 8/20/23/25/27/28/29 of the Narcotic Drugs & Psychotropic Substances Act, Police Station Challaned by D.R.I., Gomti Nagar, District Lucknow, during trial.

3. Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case and no contraband has been recovered from the possession of the applicant.

4. It is further submitted that admittedly the applicant was not found in the possession of any contraband and it is only on the confessional statement of two co-accused persons, who have been found carrying ganja in a truck, the name of the instant applicant has surfaced in the crime as the person, who had supplied ganja to the accused persons, who were arrested while transporting ganja to the tune of 555.880kg.

5. It is also submitted that it is admitted to the co-accused Upendra Kumar Singh that it was one Mahendra Shah, who had contacted him to bring ganja from Odisha to Ghaziabad and he has also promised to give Rs.45,000/- to him and when he contacted the aforesaid Mahendra Shah, he informed him to contact one Sujit Kumar (applicant) and it is at the place told by the applicant Sujit Kumar, he loaded 25 bags of ganja in his truck and ultimately they were intercepted at Lucknow.

6. It is vehemently submitted that it has also been admitted by the coaccused Upendra Kumar Singh in his statement that he had never met Sujit Kumar and they were only talking with each other on telephone and simply on the basis of call details record with which the applicant is not having any concern, the applicant has been involved in this case.

7. It is further submitted that admittedly the applicant is not the owner of the truck, which was found carrying ganja and he was also not the owner of the sim cards, which were being allegedly used to converse with coaccused Upendra Kumar Singh as the same was in the name of the father of the applicant namely Jaleshwar Singh and his brother Satendra Singh, therefore, the call details, which has been made the basis for involving the applicant, is not sufficient to detain attract culpability of applicant in crime.

8. It is also submitted that co-accused Pankaj Kumar Singh, from whose possession the contraband is shown to have been recovered, has been granted bail by the Additional Sessions Judge-IVth, Lucknow vide order dated 09.10.2019 passed in Bail No.6470 of 2019 and facility of bail has also been granted to another co-accused person namely Upendra Singh, from whose possession also the contraband was allegedly recovered, by Coordinate Bench of this Court vide order dated 25.08.2023 passed in Criminal Misc. Bail Application No.3659 of 2022. It is also submitted that there is no evidence of any monetary transaction taken place between the applicant and any other accused person and apart from the apprehension and suspicion there is no material in support of the allegations as levelled in the complaint. It is further submitted that the applicant is in jail in this case since 02.10.2022 and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty. The criminal history of four cases have been adequately explained in para no.31 of the bail application and out of these four cases, three cases have been slapped against the applicant by the D.R.I. on the arrest of the applicant in the instant case.

9. Learned counsel for the applicant has relied on Surinder Kumar Khanna Vs. Intelligence Officer, Directorate of Revenue Intelligence; (2018) 8 SCC 271, [LQ/SC/2018/923] Union of India Vs. Bal Mukund and others; (2009) 12 SCC 161 [LQ/SC/2009/731] and Raju Premji Vs. Customs NER Shillong Unit; 2009 (3) JCC [Narcotics] 153.

10. Shri Digvijay Nath Dubey, learned counsel appearing for the D.R.I. submits that the applicant had supplied the ganja to one of the co-accused person namely Upendra Kumar Singh at the behest of one Mahendra Shah and co-accused Upendra Kumar Singh had confessed this in clear terms. It is further submitted that co-accused Upendra Kumar Singh in his confessional statement had categorically stated that Mahendra Shah had told him to give Rs.45,000/- for bringing the said ganja from Odisha to Ghaziabad and also that the applicant will give him this money after delivery of ganja in Ghaziabad. He has also given mobile phone numbers of Mahendra Shah and Sujit Kumar and having regard to the call detail record pertaining to these phone numbers, it would emerge that these numbers were being used by the applicant and co-accused Mahendra Shah and Upendra Kumar Singh and they were in regular touch with each other and it is with concerted efforts of them ganja was being transported to Ghaziabad, which has been intercepted by D.R.I. team.

11. While drawing attention of this Court towards the relevant parts of the complaint, it is vehemently submitted that the father and brother of the applicant have stated in categorical terms that mobile phone numbers, which were registered in their names, were being used by the instant applicant and it is clearly established that the applicant was in touch with the co-accused Upendra Kumar Singh and had supplied the ganja to him, which has been intercepted and recovered by the team of the D.R.I. from the vehicle bearing registration No.HR38X5793.

12. It is also submitted that the identification of the applicant is not in dispute as another criminal case was registered against him in local police station and the applicant is having a long criminal history of four cases pertaining to commercial quantity of contraband, therefore, having regard to Section 37 of the N.D.P.S. Act, the applicant is not entitled to be released on bail as it is manifest that the applicant would involve himself again in the trade of narcotics, if facility of bail is granted to him.

13. Learned counsel appearing for the D.R.I. in support of his contention has relied on Union of India vs. Rattan Mallik @ Habul; 2009 (1) SCC (Cri.) 831 and Union of India vs. Ram Samujh; 1999 (39) ACC 643.

14. Having heard learned counsel for the parties and having perused the record, it is evident that the case of the prosecution is to the tune that two accused persons namely Upendra Kumar Singh and Pankaj Kumar Singh were apprehended by the D.R.I. officials on the basis of secret information from a truck bearing registration No.HR38X5793 on 03.05.2019 at about 04:00pm. Accused persons namely Upendra Kumar Singh and Pankaj Kumar Singh, who were found in the truck, confessed to be in possession of illegal ganja and on being searched about 25 bags containing ganja, total 555.880kg. of ganja, were recovered from the aforesaid truck. Accused persons, who were found in possession of ganja, have confessed that one person in the name of Mahendra Shah, who was driving another truck of North Eastern Carrying Corporation had asked him to bring ganja from Odisha to Ghaziabad and have also promised to pay him Rs.45,000/- which he (Upendra Kumar Singh) had accepted and after loading iron pipes at Bhushan Steel Factory at Jharsuguda, he contacted Mahendra Shah and on his instructions, he along with another co-accused person Pankaj Kumar Singh had gone to Redakhol, Odisha, which is situated about 100kms. away from Jharsuguda and applicant Sujit Kumar had arrived there with 25 bags of ganja, which were loaded in truck.

15. During the course of investigation call details record of the accused persons were collected and on the basis of same it was found that the applicant and another co-accused persons were directly in touch with each other telephonically. Co-accused Pankaj Kumar Singh has also confessed in the same tune as has been confessed by another co-accused Upendra Kumar Singh. The applicant in his statement recorded under Section 67 of the N.D.P.S. Act has also confessed his guilt. It is also the case of the D.R.I. that during the course of investigation statement of the father of the applicant and his brother were also recorded, wherein it is surfaced that the sim cards, which have been taken in the name of his father and brother were actually being used by the applicant and it is on this basis, it is stated that the ganja recovered from truck was supplied by the applicant to the accused persons Upendra Kumar Singh and Pankaj Kumar Singh.

16. Perusal of the material, which has been placed against the applicant, would also reveal that the case of the D.R.I. against the instant applicant is based on circumstantial evidence. The complicity of the applicant in the crime has been found on the basis of his confessional statement as well as on the basis of confessional statements of two accused persons namely Upendra Kumar Singh and Pankaj Kumar Singh and statements of the brother and father of the applicant recorded under Section 67 N.D.P.S. Act apart from the call detail records. Both accused persons, who were found in actual possession of the ganja recovered from the truck, have been granted bail by the trial court and by a Coordinate Bench of this Court, respectively. However, it is submitted on behalf of the D.R.I. that order, whereby the facility of bail was extended by the trial court to one of the co-accused person namely Pankaj Kumar Singh has been challenged before this Court, but another accused person Upendra Kumar Singh from whose possession, the contraband is also shown to have been recovered, has also been released on bail by Coordinate of this Court. While granting bail to the co-accused Upendra Kumar Singh, the Coordinate Bench of this Court has found that till then only one prosecution witness was examined before the trial court, thus it is evident that the factual situation with regard to the status of case pending before the trial court has not changed yet and the trial is not going to conclude in near future.

17. The Hon'ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu; MANU/SC/0797/2020 in para 152 and 155 has held as under:

"152. Thus, to arrive at the conclusion that a confessional statement made before an officer designated Under Section 42 or Section 53 can be the basis to convict a person under the NDPS Act, without any non obstante Clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.

155. We answer the reference by stating:

(i) That the officers who are invested with 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 any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an Accused under the NDPS Act.

(ii) 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."

18. The Hon'ble Supreme Court in Union of India vs. Rattan Mallik @ Habul; 2009 (1) SCC (Cri) 831 while interpreting the words 'reasonable grounds' has held has under:

"12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on “reasonable grounds”.

13. The expression “reasonable grounds” has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari [(2007) 7 SCC 798 [LQ/SC/2007/1115] : (2007) 3 SCC (Cri) 505] ). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.

14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of “not guilty”. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail."

19. Thus it is evident that the applicant was not found present in the truck, from where recovery of ganja has been made and his name has came into light in the confessional statements of the co-accused persons i.e. Upendra Kumar Singh and Pankaj Kumar Singh (who were found in real possession of ganja concealed in the truck) recorded under Section 67 of the N.D.P.S. Act, wherein they stated to have received ganja from the applicant and apart from the statement of the brother and father of the applicant pertaining to the usage of sim cards by the applicant purchased in their names, there is only evidence of confessional statement of the applicant himself. Criminal history of four cases have been alleged against the applicant. Out of which, three cases are said to have been related to the D.R.I. and one case is pertaining to the concerned police station and complaint in three cases pertaining to D.R.I. and charge sheet in one case pertaining to the Police Station Madhubani, District East Champaran is said to have been filed against the applicant. The said criminal history have been explained by the applicant in para no.31 of his bail application and it is stated that the three cases pertaining to the D.R.I. have been slapped against the applicant only on the basis of the arrest of the applicant in the instant case. Thus, the criminal history appears to have been satisfactorily explained. Moreover, the applicant is not a convict and the criminal history of an accused person could only be relevant, having regard to the material/evidence, which is being placed against the accused/applicant in the instant case. At the cost of repetition, it is stated that the two accused persons who were found in the actual possession of 'ganja', have been granted bail by district Court as well as by a co-ordinate Bench of this Court and the evidence against the applicant comprises only of confessional statements of the co-accused persons and his confessional statement apart from the statement of his brother and father pertaining to the SIM cards which were allegedly used by him for communication with co-accused persons.

20. Thus, having regard to the law laid down by Hon'ble Supreme Court in Tofan Singh (supra) as well as Rattan Mallik @ Habul (supra) and the quality of material/evidence available against the applicant as also having regard to the fact that two accused persons namely Upendra Kumar Singh and Pankaj Kumar Singh, who were found sitting in the truck from which the contraband has actually been recovered, have been granted bail, in the considered opinion of this Court, the satisfaction as desired under Section 37 (1)(b) of the N.D.P.S. Act stands satisfied. Resultantly this Court is of the considered view that facility of bail, on the principle of parity as well as otherwise may also be extended to the applicant.

21. Having regard to the overall facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed.

22. Let the accused/applicant- Sujit Kumar involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-

(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.

(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

(iii) Applicant shall deposit his passport with the trial court and if he is not having any passport issued in his name, he shall file an affidavit in this regard before the trial court.

(iv) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail and his involvement in any subsequent crime would be a sufficient ground for the trial court to cancel the facility of bail granted by this Court.

23. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

24. Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.

25. Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression of this Court on the merits of the case.