Confessional Statements made under Section 67 of NDPS Act inadmissible: Supreme Court

Supreme Court: In a case relating to a drug racket spread across three States namely, U.P., Punjab and Rajasthan, the 3-Judge Bench of N. V. Ramana, CJ., and Krishna Murari, Hima Kohli*, JJ., reversed the impugned order of Delhi High Court releasing the respondent-accused on post-arrest bail.  

Although the Court reiterated that a confessional statement made under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is inadmissible, it found other materials against the respondent, sufficient to indicate his involvement in the alleged crime.   

Background  

The instant appeal had been filed by the Narcotics Control Bureau (NCE) to assail the impugned order of the Delhi High Court granting post-arrest bail to the respondent. The respondent is facing trial for the offences under Sections 8/22 and 29 of the NDPS Act. 

The NCB had recovered a parcel containing 50,000 Tramadol tablets weighing 20 kgs on the basis of secret information stating that one Gaurav Kumar Aggarwal in Agra had booked a parcel suspected to contain NRX tablets to be delivered to one Manoj Kumar (respondent herein) at Ludhiana, Punjab. The accused, Gaurav Kumar Aggarwal revealed that the recovered drug was booked by the respondent from one Promod Jaipuria, a resident of Jaipur.  

To unveil the whole racket, NCB conducted a raid at the godown of Promod Jaipuria during which a cache of drugs covered under the NDPS Act, was recovered, which included 6,64,940 tablets of different psychotropic substances including Tramadol, Zolpidem, and Alprazolam tablets/capsules weighing around 328.82 Kgs, 1400 Pazinc Injections amounting to 1.4 ltrs and 80 Corex Syrup bottles weighing 8 ltrs. Another 9,900 tablets weighing 990 gms. were recovered during the search conducted by the NCB officials at the premises of the co-accused, Manoj Kumar at Ludhiana. 

Noticeably, the respondent had approached the Special Judge, NDPS twice with his application for bail, and both the applications were dismissed by the Special Judge. However, in a petition filed under Section 439 CrPC, 1973, the High Court allowed the respondent’s bail application.  

Contentions of the Parties  

NCB argued that the High Court had completely overlooked the fact that it was on the basis of the disclosures made by the respondent himself that huge quantities of narcotic drugs and injections were seized from the godown of the co-accused, Promod Jaipuria who was subsequently arrested by the Department; therefore, the High Court had committed a grave error by not applying the terms and conditions imposed under Section 37 of the NDPS Act.  

On the contrary, the respondent submitted that the consignment in question was neither booked by him nor for him and that he had no connection with the other co-accused persons. Further, no recovery was made from him and nothing was found in the search conducted at his residence and shop.  

Provisions for Bail under NDPS Act  

The Court observed that not only are the limitations imposed under Section 439 CrPC to be kept in mind while considering a bail application under NDPS Act but also the restrictions placed under Section 37 (1) (b) of NDPS Act to be factored in. Section 37 (1) (b) of NDPS Act states:  

“(i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release; and 

(ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence.  

Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.”  

Relying on Collector of Customs v. Ahmadalieva Nodira, (2004) 3 SCC 549, and State of Kerala v. Rajesh, (2020) 12 SCC 122, the Court stated that the expression “reasonable grounds” in Section 37 (1) (b) would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence.  

The Court clarified that the entire exercise that a court is expected to undertake at the stage of bail under Section 37 of NDPS Act is to see the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and that he is unlikely to commit an offence under the Act while on bail. 

Admissibility of Confessional Statements made under S. 67 NDPS Act 

The Court opined that the High Court could not be faulted for holding that NCB could not have relied on the confessional statements of the respondent and the other co-accused recorded under Section 67 of the NDPS Act in the light of law laid down in Tofan Singh v. State of T.N., (2013) 16 SCC 31, wherein a confessional statement recorded under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act.  

Therefore, the Court held that the admissions made by the respondent while in custody to the effect that he had illegally traded in narcotic drugs, would have to be kept aside.  

Findings and Conclusion  

Considering the other materials submitted by NCB to contest the bail of the respondent, the Court noted the following:  

1. It was the disclosures made by the respondent that had led NCB to arrive at and raid the godown of the co-accused, Promod Jaipuria which resulted in the recovery of a large haul of different psychotropic substances in the form of tablets, injections and syrups.  
2. It was the respondent who had disclosed the address and location of the co-accused, Promod Jaipuria who was arrested later on.  
3. The CDR details of the mobile phones of all co-accused including the respondent showed that they were in touch with each other.  

Hence, the Court opined that even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. 

Calling the observation made in the impugned order that since nothing was found in the possession of the respondent, he is not guilty of the offence he had been charged with a premature assumption, the Court stated that the narrow parameters of bail available under Section 37 of the Act has not been satisfied in the instant case. Further, the Court stated, 

“The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.”  

In the backdrop of above, the Court set aside the impugned order releasing the respondent on post-arrest bail. The bail bonds were declared cancelled and the respondent was directed to be taken in custody forthwith. 

[Narcotics Control Bureau v. Mohit Aggarwal, 2022 SCC OnLine SC 891, decided on 19-07-2022] 

*Judgment by: Justice Hima Kohli 

Appearance by:  

For NCB: Jayant K. Sud, Additional Solicitor General 

For the Respondent: P.K. Jain, Advocate-on-Record 

Kamini Sharma, Editorial Assistant has put this report together