Bombay High Court: In an application seeking bail for a person accused of offences punishable under Sections 22(c), 23(c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), NJ Jamadar, J. noted that apart from the statement of one person, there was no evidence to connect the applicant with the parcel, and thus, allowed the instant application for bail.
Factual Background
A postal parcel was presented for export screening booked in the name of an Aurangabad resident to be exported to consignee having US address, which was found suspicious. As per customs declaration, the goods packed in the said parcel were edible dry items of value Rs.1000, the contents were examined by the officers of Airport Sorting Office (APSO) in the presence of two independent witnesses, and the inspection led to recovery of 8,480 tablets of Tramadol Hydorchloride Tablets-OL-TRAM 100 mg. The Court highlighted that ‘Tramadol’ was declared a psychotropic substance vide gazette notification S.O.1761(E) dated 26.04.2018, the notified commercial quantity was 250 grams, and thus, the 840 grams of Tramadol in the said parcel was found in excess of the notified commercial quantity.
The said parcel was booked from a General Post Office and the person who was the letter writer and parcel packer at the said GPO revealed that the same was packed at his counter by the applicant, whom he had known from before as the applicant also had a counter for packing in front of GPO before COVID outbreak. On 4-06-2022, the applicant came to the counter of the said person, went to the booking counter and the parcel was booked, and thereupon the applicant was summoned.
The applicant in his statement under Section 67 of NDPS Act revealed that he had booked the parcel which was delivered to him by another person. The applicant got arrested on 30-06-2022 and the Call Detail Records (CDR) revealed that the applicant was in touch with the said person and exported parcels delivered by him in the past as well, while the AADHAR CARD details given while booking the parcel were of a third person who had not known the applicant. Thus, the investigation revealed complicity of applicant in the export of narcotic substance.
Court’s Analysis
The Court hinted at Section 37(1)(b)(ii) regarding commercial quantity, bail to person involved and the reasonable grounds for the Court to consider. The Court referred to Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 to explain the term ‘reasonable ground’. Considering whether the twin test was satisfied in the instant matter, the Court explained that the parcel was booked at GPO reflecting two different names as consignor and consignee, and that there was material to indicate that the consignor named had not booked the said parcel, whose credentials were fraudulently used to book the same. Looking at the commercial quantity and material to reflect whether the parcel was booked by the applicant or possessed by him, the Court hinted that apart from the statement of GPO office, there was no material to connect the applicant with the parcel.
Regarding the statement under Section 67 of NDPS Act, the Court referred to Tofan Singh v. State of T.N., (2021) 4 SCC 1 wherein the Court had clarified that statement under Section 67 of NDPS Act could not be used as a confessional statement in the trial. The Court clarified that ‘possession’ under Section 22 of NDPS Act connotes conscious possession and cited Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222 in this regard. While hinting that there was no evidence to connect the applicant with the parcel, but statement of one person, and the CDR in the absence of transcript, the Court said that the same did not itself incriminate the applicant.
The Court was convinced of the applicant making out a case to believe that he may not have been found in conscious possession of the narcotic substance. Considering the fact that the applicant had been in custody since 10-06-2022, and the unlikeliness of conclusion of the trial within a reasonable period, the Court allowed the instant application for bail and ordered his release while imposing requisite conditions.
[Shakil Ahmed Peer Mohd. Shaikh v. Union of India, 2024 SCC OnLine Bom 832, Order dated 11-03-2024]
Advocates who appeared in this case :
For Applicant: Advocate Sana Raees Khan, Advocate Aditya Parmar, Advocate Ruchita Rajpurohit, Advocate Abhijeet Singh, Advocate Juhi, Advocate Onkar
For Respondent: Additional Public Prosecutor Tanveer Khan, Advocate Amit Munde
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