Confession made in police custody cannot be used in trial for offence under NDPS Act: High Court of Delhi
When no circumstantial evidence is found and person is arrested merely under Section 67 for recording of NDPS Act for confession statement, such arrest holds no legal validity, and the accused shall be granted bail. This was decided in the case of by Mohit Aggarwal vs. Narcotics Control Bureau [BAIL APPLN. 2585/2020 &amp; Crl.M.(B) 8044/2020] Hon’ble Justice Suresh Kumar Kait in the High Court of Delhi. The facts of the case are that petitioner was business in the name of Madhav Pharma for sale, purchase and transport of various medicines while holding valid drug license under Form 20B &amp; 21B of Drugs &amp; Cosmetics Act, 1945. pleaded that no contraband was recovered from his possession and he has been falsely implicated in this case. He got involved into the case after secret information was given to the an Intelligence officer of the a parcel containing NRX tablets.  Thereafter, as per law, search was conducted, and drugs were seized after sending legal notice to the owner to accompany the raiding team. After a series of investigations , upon recovery of contraband and based on voluntary statements, petitioner was arrested under Sections 8,22 and 29 NDPS Act. His application for bail was dismissed and hence this petition. The counsel for petitioner submitted that the rejection of bail by the trial court is without application of mind, as the learned trial court has failed to appreciate that name of petitioner popped up. Also, the person on whose voluntary statement, the arrest was made, has not named the petitioner herein and he has retracted from his statement. Also, no other material evidence has been placed on record to establish petitioner’s involvement in the offence in question. Special Public Prosecutor contended that court shall support the rejection of bail application as the offence committed by the petitioner comes under the category of recovery of commercial quantity and since there is an embargo of Section 37 of NDPS Act. He further submitted that the analysis of call detail records of petitioner and other co-accused in this case shows criminal conspiracy for their involvement in illicit trafficking of drugs. The court considered the contentions put forth by both the parties. It observed that he solitary ground to involve petitioner in the present case is his statement made under Section 67 of NDPS Act, which he had retracted at the first opportunity available to him. The court also reproduced Section 67 of NDPS Act which empower the concerned authorities to ‘examine any person acquainted with the facts and circumstances of the case. The court referred to the case of Tofan Singh Vs. State of Tamil Nadu 2020 SCC Online SC 882 where it was held “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.”  
IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 04.03.2021 Pronounced on: 16.03.2021 BAIL APPLN. 2585 2020 & Crl.M.(B) 8044 2020 MOHIT AGGARWAL Through: Mr. Ramesh Gupta Senior Advocate Petitioner with Mr.S.P.Singh Rathore & Mr. Shailendera Singh Advocates NARCOTICS CONTROL BUREAU ..... Respondent Through: Mr. Rajesh Manchanda Standing Counsel for NCB with Mr. Rajat Manchanda HON BLE MR. JUSTICE SURESH KUMAR KAIT In case SC No. SC 1334 2020 titled as NCB Vs. Gaurav Aggarwal & Ors petitioner is facing trial for the offences under Sections 8 22 & 29 of Narcotic Drugs and Psychotropic Substances Act 1985. Petitioner was arrested by the officials of Narcotic Control Bureauon 11.01.2020 and is in judicial custody since 11.01.2020. Vide present petition petitioner is seeking bail while claiming to be innocent and of having been falsely implicated in the present case. The present petition has been filed on the ground that petitioner is a BAIL APPLN. 2585 2020 law abiding citizen and is running business in the name of Madhav Pharma for sale purchase and transport of various medicines while holding valid drug license under Form 20B & 21B of Drugs & Cosmetics Act 1945. Petitioner has pleaded that he has maintained all records complying with all the terms and conditions of the license. Petitioner has further pleaded that no contraband was recovered from his possession and he has been falsely implicated in this case. The crux of the prosecution case as per complaint dated 09.01.2020 is that upon receipt of secret information by Chetan Sharma Intelligence Officerthat one parcel bearing Airway Bill No. D90471207 booked by one Gaurav Kumar from Agra for delivery to one Manoj Kumar at Ludhiana Punjab is lying at DTDC Khasra No. 16 06 Smalakha Kapasehra New Delhi is suspected of containing NRX tablets and if captured huge quantity of narcotic tablets can be recovered. This information was reduced into writing and was placed before Amit Kumar Tiwary Superintendent who directed Manoj Kumar Junior Intelligence Officer to constitute a team and take further action as per law. Thereafter Manoj Kumar Junior Intelligence Officer along with other members of the constituted raiding team namely Raj Kumar Maurya Intelligence Officer BAIL APPLN. 2585 2020 Ajay Kumar Speoy and N.P. Singh Driver collected the DD kit weighing machine I.O. kit and other related seizing material and seal of Narcotic Control Bureau DZU 2. The team left the Delhi office and reached at above mentioned address and met Durgesh Prasad Vigilance Senior Executive of DTDC. After introducing themselves by showing their identify cards informed about their purpose of coming and requested him and his colleague one Aas Mohd. Khan to become independent witnesses for the search and seizure proceedings to which they accepted. Manoj Kumar Junior Intelligence Officer offered these independent witnesses to search him and his team members to which they declined. Thereafter the suspected article was opened in the presence of these two independent witnesses. On opening the said parcel it was found to be jute bag on which and on the bill the name of the consignor was written as Gaurav Kumar Agra and consignee was written as Manoj Kumar Campa Cola Chowk Ludhiana 141003. 4. When the said jute bag was opened a brown card box was found which contained 50 000 tablets of Tramadol weighing 20 kg. Since these were being sent as mis declared item without bill and were in contravention of the NDPS Act therefore seizure proceedings were initiated after due BAIL APPLN. 2585 2020 procedure. A notice under Section 67 of NDPS was issued to independent witnesses Durgesh Prasad and Aas Mohd. Khan. Thereafter Manoj Kumar Intelligence Officer collected relevant information about Gaurav Kumar of Agra and Manoj Kumar of Ludhiana from DTDC office and as mentioned on Airway Bill and prepared disclosure to this effect. The disclosure statement of Manoj Kumar Yadav Intelligence Officer was placed before Amit Kumar Tiwary Superintendent who directed Sh. Sachin Kumar Intelligence Officer to take action against Gaurav Kumar of Agra and Manoj Kumar of Ludhiana as per law. On the next day i.e. 10.01.2020 after making relevant entries in the test memo form the samples seized from the office of DTDC on 09.01.2020 were sent to Chemical Engineer CRCL Pusa Road New Delhi through Sh. Yogesh Kumar Sharma Sepoy. On the same day i.e. 10.01.2020 Manoj Kumar Yadav Junior Intelligence Officer gave his seizure report to Amit Kumar Tiwary Superintendent. Consequent upon marking of aforesaid disclosure Manoj Kumar Yadav Junior Intelligence Officer on 10.01.2020 along with members of his fresh constituted raiding team reached at the office of DTDC Mathura Road Agra and Gaurav Kumar Aggarwal was called at the DTDC office by their staff members and there he was served BAIL APPLN. 2585 2020 with notice under Section 67 of NDPS Act. On the same day i.e. 10.01.2020 Gaurav Kumar Aggarwal in the office of DTDC office gave his voluntary statement under Section 67 of NDPS Act before Anand Kumar Intelligence Officer. He was fully apprised of the procedure prescribed under Section 67 of NDPS Act however Gaurav Kumar Aggarwal accepted his guilt and stated that on 06.01.2020 he had booked a parcel in the name of Manoj Kumar Campa Cola Chowk Ludhiana Punjab with DTDC courier Sikandra Road Agra containing 50 000 tablets of Tramadol which was purchased by him from Mohit Aggarwal without bill. He admitted that the said parcel contained 50 000 tablets of Tramadol which fall under contraband narcotic drugs were without prescription and bill therefore on the parcel it was mentioned “surgical items”. The said Gaurav Kumar Agarwal further stated that Mohit Aggarwal purchased these medicines from Pramod Jaipuri @ Davinder Khandelwal and gave their mobile numbers. He further disclosed that Pramod Jaipuria lives in Jaipur but his son in law Gaurav Khandelwal used to look after his business in Agra and he had a godown of drugs in Agra and that whenever Pramod Jaipuria visited Agra he lived in Hotel Chanderlok Raja Mandi. He BAIL APPLN. 2585 2020 further disclosed that he knew house and shop of Mohit Aggarwal and can identify them and their places if NCB officials ask him to accompany. Thereafter Gaurav Kumar took the raiding team to Mohit Kumar Aggarwal on whose disclosure raiding team reached the house of Doji Ram where Pramod Kumar Jaipuria @ Davinder Khandelwal was running his godown there the raiding team met one Rambir the watchman who disclosed that the godown belonged to Pramod Kumar Jaipuria @ Davinder Khandelwal who was doing business of medicines and he called him up on his mobile and informed that the NCB team has come to his godown and after hearing this Pramod Kumar Jaipuria @ Davinder Khandelwal disconnected the phone and switched off his mobile. Thereafter upon following the due procedure as per law the search was conducted at the godown and huge quantity of drugs covered under the NDPS Act was seized. On the said day itself notice under Section 67 of the NDPS Act was served upon Mohit Aggarwal. Both Gaurav Kumar Aggarwal and Mohit Aggarwal voluntarily agreed to accompany the raiding team to Delhi. On 10.01.2020 Sachin Kumar Intelligence Officer along with his raiding team headed towards office of DTDC at Ludhiana. When Manoj Kumar reached at DTDC office and asked for his parcel Sachin Kumar BAIL APPLN. 2585 2020 Intelligence Officer spoke to him and told him their purpose of coming there and on asking about the parcel Manoj Kumar stated that he is a whole seller of medicines and is involved in the sale and purchase of medicines and he accepted to have placed an order for 50 000 tablets of Taramol from Gaurav Kumar Aggarwal and that he had come to collect the parcel and also that he had all the relevant documents at his shop Tredwell Health Care and if the NCB officials accompany him to the shop he can show the entire documents. The NCB team members along with local police officials visited his shop and Manoj Kumar showed certain documents which were found to be not relating to narcotics. On verification of those documents it revealed that Manoj Kumar did not have any document with regard to sale and purchase of narcotic drugs. Upon further inspection of stock available at his shop it was further revealed that a huge quantity of different narcotic drugs were available at his shop without any relevant document in that regard and Manoj Kumar admitted to have sold a few without any prescription and bill and so the medicine stock was sealed under the provisions of NDPS Act. On that day i.e. 10.01.2020 Manoj Kumar was served with Notice under Section 67 of NDPS Act and he gave his voluntary statement before Sachin Kumar Intelligence Officer. BAIL APPLN. 2585 2020 9. On the next day i.e. 11.01.2020 petitioner Mohit Kumar Aggarwal gave his voluntary statement under Section 67 of NDPS Act before Sh.R.K. Maurya Intelligence Officer wherein he admitted his guilt and complicity for the commission of offence of this case. He stated that two three years ago he took a shop on rent and started business of medicines and Gaurav Kumar Aggarwal used to buy medicines from his shop. He further stated that Gaurav Kumar Aggarwal had purchased five boxes of Tramodol out of which one box of 50 000 tablets was bought from Pramod Jaipuria. He also admitted that he can identify Pramod Jaipuria and his godown situated in Agra. 10. For the recovered narcotic substances i.e. 50 000 tablets of Tramadol from DTDC courier weighing 20 kgs 6 64 940 tablets capsules weighing 328.82kg 1400 injections amounting to 1.4 ltrs and 80 corex amounting to 8 ltrs syrup seized from Agra & 9 900 tablets weighing 990 gms the seizure memos were prepared by the Intelligence Officers concerned and sent for examination. 11. Consequent upon recovery of contraband and on the basis of voluntary statements Mohit Kumar Aggarwal was arrested on 11.01.2020 for the offences under Sections 8 22 and 29 NDPS Act as per procedure BAIL APPLN. 2585 2020 prescribed. On 12.01.2020 Shri R.K.Maurya Intelligence Officer gave the arrest report of Mohit Kumar Aggarwal under Section 57 of the NDPS Act to Amit Kumar Tiwary Superintendent NCB DZU. 12. Petitioner‟s application for bail was dismissed by the learned trial court vide order dated 21.07.2020 while observing as under: “In present case also the present accused is found connected as per the statement of co accused he purchased the said recovered drugs from the present accused and thereafter at the instance of both the accused huge recovery of contraband was effected. The accused persons were also found connected through mobile phones. The twin conditions envisaged u S 37 are required to be satisfied before granting the bail to the accused. At this stage it cannot be held that there are no reasonable grounds exist that accused is not guilty of the offence alleged. The reasonable ground mean something more than prima facie ground. Merely the factum that there is no documentary evidence is no ground that no prima facie case is made out. The judgment of Surender Khanna as relied by the Ld. Counsel for accused is not applicable at this stage. Apex Court in case titled as Mohd. Fasrin Vs. State Crl. Appeal No. 296 2014 dated 04.09.2019 held that even if confession made to the investigating officers are held to be admissible under Section 67 of Narcotic Drugs BAIL APPLN. 2585 2020 and Psychotropic Substances Act 1985 the Court has to be satisfied that it is a voluntary statement free from any pressure and also that the accused was apprised of his rights before recording the confession. Thus it cannot be held that at this stage statement u S 67 of NDPS Act cannot be looked to see the prima facie case. At this stage this Court is not supposed to appreciate the probative value of the material on record however only has to see the prima facie case. The recovered contraband is commercial in nature thus there is definite bar u S 37 NDPS Act over the release of accused on bail however it cannot be held at this stage there are reasonable grounds to believe that accused is not guilty of the offence and is not likely to commit any offence while on bail. Considering the material on record and in view of the above discussion I found no ground to release the applicant accused Mohit Aggarwal on bail. Hence the present application is dismissed.” 13. At the hearing learned senior counsel for petitioner submitted that the rejection of bail by the trial court is without application of mind as the learned trial court has failed to appreciate that name of petitioner popped up in this case when accused Gaurav Kumar Aggarwal in his voluntary statement took petitioner‟s name and the said voluntary statement was partly BAIL APPLN. 2585 2020 recorded in Agra and partly in Delhi and accused Gaurav Kumar Aggarwal has retracted from his statement at the first available opportunity itself. Learned senior counsel pointed out that accused Gaurav Kumar Aggarwal had taken the NCB team to the shop of petitioner and the shop was searched by the NCB team but nothing incriminating was recovered from the shop. It is next contended by learned senior counsel for petitioner that petitioner was served with notice under Section 67 of NDPS Act and his statement was recorded by R.K.Maurya Intelligence Officer and the petitioner had retracted from the said statement on the first available opportunity. 15. Learned senior counsel also submitted that in the statement of Manoj Kumar of Ludhiana recorded under Section 67 of NDPS Act he has not named petitioner herein and he has retracted from his statement. It has also been pointed out that the tablets and material seized on 09.01.2020 is different from the description of medical tablets details of which have been sought by prosecution vide summon dated 27.04.2020 under Section 67 of NDPS Act and also that details of batch number and manufacturer are not mentioned therein. 16. Leaned senior counsel for petitioner vehemently submitted that apart BAIL APPLN. 2585 2020 from retracted statements of co accused involved in this case no other material evidence has been placed on record to establish petitioner‟s involvement in the offence in question. In support of petitioner‟s case reliance has been placed upon decisions of Constitution Bench of Supreme Court in Hari Charan Kurmi Anr. Vs. State of Bihar6 SCR 623 Kashmira Singh Vs. State of Madhya Pradesh AIR 1952 SC 159 Mohd. Fasrin Vs. State 2019SCC 811 and Surinder Kumar Khanna Vs. Intelligence Officer Directorate of Revenue Intelligence 8 SCC 271. Reliance has also been placed upon recent decision of Hon‟ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu 2020 SCC OnLine SC 882. 18. On the other hand learned Special Public Prosecutor appearing for respondent NCB supported the impugned order dated 21.07.2020 rejecting petitioner‟s bail application and submitted that the offence committed by the petitioner comes under the category of recovery of commercial quantity and since there is an embargo of Section 37 of NDPS Act the present petition deserves to be dismissed. Reliance was placed upon decision of Hon‟ble Supreme Court in State of Kerala & Ors. Vs. Rajesh & Ors.12 SCC BAIL APPLN. 2585 2020 19. Learned Special Public Prosecutor appearing for respondent NCB further submitted that petitioner has tendered his voluntary statement under Section 67 of NDPS Act before the competent officer wherein he has admitted his guilt. He further submitted that the analysis of call detail records of petitioner and other co accused in this case shows criminal conspiracy for their involvement in illicit trafficking of drugs. It was next submitted that statement tendered by petitioner under Section 67 of NDPS Act is admissible in evidence and has evidentiary value as per NDPS Act. Learned Special Public Prosecutor submitted that reliance placed upon various afore noted decision is of no help to the case of petitioner as in those cases the aspect of statement of accused recorded has not been dealt with. Thus dismissal of the present petition is sought by Special Public Prosecutor appearing for respondent NCB. 21. The rival contentions raised by both the sides have been considered. 22. As per the prosecution case 50 000 tablets of Tramadol weighing 20 kgs 6 64 940 tablets Capsules weighing 328.82kg 1400 injections amounting to 1.4 ltrs and 80 corex amounting to 8 ltrs syrup & 9 900 tablets weighing 990 gms were recovered in this case. It is an admitted case of both the sides that name of petitioner popped BAIL APPLN. 2585 2020 up in this case in the statement made by co accused Gaurav Kumar Aggarwal. It is also an admitted case that at the behest of Gaurav Kumar Aggarwal the NCB team visited the shop of petitioner and upon search nothing incriminating was recovered. The solitary ground to involve petitioner in the present case is his statement made under Section 67 of NDPS Act which he had retracted at the first opportunity available to him. 24. Pertinently Section 67 of NDPS Act reads as under: “67. Power to call for information etc. —Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may during the course of any enquiry in connection with the contravention of any provisions of this Act — a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder b) require any person to produce or deliver any document or thing useful or relevant to the enquiry c) examine any person acquainted with the facts and circumstances of the case.” 25. A perusal of petitioner‟s statement recorded under Section 67 of NDPS Act on 09.01.2020 reveals that Gaurav Kumar Aggarwal used to buy medicines from his shop and on the said day i.e. 09.01.2020 he along with BAIL APPLN. 2585 2020 NCB team came to his shop and introduced him to them and they told him that they had come to inquire about 50 000 tramadol tablets which were sent by Gaurav Kumar Aggarwal to Manoj in Ludhiana and he admitted that a few days ago he had purchased 05 boxes of tramadol tablets from Pradeep Jaipuria illegally which were bought by Gaurav Kumar Aggarwal out of which he had returned 03 boxes due to money crisis and those 03 boxes he had returned to Pradeep Japuria. In his statement petitioner admitted that he along with Gaurav Kumar Aggarwal had escorted the NCB team to the godown of Pradeep Jaipuria. Besides petitioner has admitted that on two three occasions he had sold narcotic tablets purchased from Pradeep Jaipuria to Gaurav Kumar Aggarwal for extra amount of Rs.2 000 . 26. The petitioner‟s statement was recorded for the second time on 10.01.2020 at the NCB office however its copy has not been placed on record. Petitioner had retracted from his statements on the first available opportunity made available to him. 27. Recently the Hon‟ble Supreme Court by majority view while answering to a reference with regard to the evidentiary value of Section 67 of NDPS Act in Tofan Singhhas held as under: “158. We answer the reference by stating: BAIL APPLN. 2585 2020 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.” In the aforesaid view of the matter the Hon‟ble Supreme Court sent back the appeals and special leave petitions to the Division Benches of the Hon‟ble Supreme Court to hear them in the light of aforesaid view. 29. Reciting a dissenting view in Tofan Singh Hon‟ble Ms. Justice Indira Banerjee observed that any statement made or document or other thing given to an authorised officer referred to in Section 42 of the NDPS Act or an officer invested under Section 53 with the powers of an Officer in Charge for the purpose of investigation of an offence under the said Act in the course of any inquiry investigation or other proceeding may be tendered in evidence in the trial of an offence under the said Act and proved in accordance with law. The Hon‟ble Judge also observed that she BAIL APPLN. 2585 2020 was unable to agree that a statement recorded under Section 67 of the NDPS Act cannot be used against an accused offender in the trial of an offence under the NDPS Act. On this aspect the aforesaid Bench of the Hon‟ble Supreme Court observed as under: “262. An officer empowered under Section 53 with the powers of an Officer in Charge of a Police Station for the investigation of an offence also has the power to make an inquiry. This is clear from the language used in Section 53A(1) of the NDPS Act. The words “A statement made and signed by a person before any officer empowered under Section 53 for the investigation of offences during the course of any inquiry or proceedings by such officer” clinches the issue. The officer empowered under Section 53 with the power of an Officer in Charge of a Police Station can obviously make an inquiry within the meaning of Section 67 to find out whether there has been any contravention of the NDPS Act. A statement made before such an officer in course of any inquiry or other proceeding which is taken down in writing and signed by the person making it may in certain circumstances be relevant for the purpose of proving in any prosecution for an offence under the NDPS Act the truth of the facts it contains.” 30. Further on the value of a confession made by a person Hon‟ble Ms.Justice Indira Banerjee held as under: BAIL APPLN. 2585 2020 “308. A confession made by an accused person is irrelevant in a criminal proceeding if it appears to the Court that the confessions may have been elicited by any inducement threat or promise from a person in authority and sufficient in the opinion of the Court to give the accused person reasonable grounds for supposing that by making the confession he would gain any advantage or avoid any disadvantage in respect of proceedings against him. 309. As observed by this Court the State of Rajasthan v. Raja Ram “confessions may be divided into two classes judicial and extra judicial. Judicial confessions are those which are made before a Magistrate or a Court in the course of judicial proceedings. Extra judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra judicial confessions two questions arise :were they made voluntarily andare they true ”. xxx xxx xxx BAIL APPLN. 2585 2020 “An extra judicial confession if voluntary and true and made in a fit state of mind can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra judicial confession is a weak type of It would depend on the nature of circumstances the time when the confession was made and the credibility of the witnesses who speak to such a xxx xxx xxx “If the evidence relating to extra judicial confession is found credible after being tested on the touchstone of credibility and acceptability it can solely form the basis of conviction. The requirement of corroboration as rightly submitted by the learned counsel for the respondent accused is a matter of prudence and not an invariable rule of law.” 31. With afore noted pertinent observations Hon‟ble Ms. Justice Indira Banerjee held that provisions of Cr.P.C. do not apply to an inquiry investigation under the NDPS Act except to the limited extent provided in BAIL APPLN. 2585 2020 Section 50(5) and 51 of the Act. It was further held that “the decision of Hon’ble Supreme Court in Raj Kumar Karwalwhich has reaffirmed the verdict of three Constitution Benches does not require reconsideration and nor does Kanhaiyalalrequire reconsideration.” 32. Keeping in mind the observations made in Tofan Singhand upon a bare reading of petitioner‟s statement recorded on 09.01.2020 it is apparent that petitioner has not admitted that he was a party to the transaction or in possession of recovered and seized contraband substance. Though he has admitted in custody to have illegally traded the tablets under the NDPSbut since no recovery has been affected from his person or shop in this case prosecution can only attempt to prove its case on the basis of circumstantial evidence that is to say by corroborating the call detail record or other material available and reliance cannot be solely placed upon disclosure statement of co accused to keep him behind bars especially when the recoveries of the instance were before the arrest of the petitioner and the statement given by co accused has been retracted at the first available opportunity. 33. Respondent NCB has placed reliance upon Hon‟ble Supreme Court‟s decision in State of Kerala Vs. Rajesh (ii)and Section 29 of NDPS Act and the High Court without noticing Section 37 of the NDPS Act granted bail to the accused on parity basis with other co accused in that case who were already on bail. The Hon‟ble Supreme Court observed that “the High Court had failed to record a finding under Section 37 of the NDPS which is a sine qua non for granting bail to the accused under the NDPS Act”. Appeal preferred by the prosecution was allowed and order of the High Court was set aside and bail granted to the accused was cancelled. 34. Pertinently the provisions of Section 37 of NDPS Act read as under: “37. Offences to be cognizable and non bailable — 1) Notwithstanding anything contained in the Code of Criminal Procedure 1973— every offence punishable under this Act shall be a) cognizable b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless — i) the Public Prosecutor has been given an opportunity to oppose the application for such release and BAIL APPLN. 2585 2020 where the Public Prosecutor opposes application the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. 2) The limitations on granting of bail specified in clauseof sub sectionare in addition to the limitations under the Code of Criminal Procedure 1973 or any other law for the time being in force on granting of bail.]” In the case in hand investigation is said to be complete. As per impugned order dated 21.07.2020 complaint charge sheet has already been filed however besides confessional statement recorded under Section 67 of NDPS Act no other material is forthcoming. Since no incriminating material was recovered at the instance of petitioner this strengthens the view of this Court that petitioner is not likely to commit offence if released on bail. Moreover nothing stops the prosecution to prove its case on merits during trial. In the aforesaid view of the case requirements under Section 37 of NDPS Act are fulfilled. In the peculiar facts and circumstances of the case without commenting on the merits petitioner is directed to be released forthwith on his furnishing personal bond in the sum of Rs.25 000 and one surety in the like amount to the satisfaction of trial court duty magistrate subject to the BAIL APPLN. 2585 2020 condition that: Petitioner shall not directly or indirectly tamper with the evidence or influence the witnesses of the case ii) Petitioner shall provide his mobile number to the IO and ensure that he is reachable. 37. The petition is allowed in aforesaid terms. Pending application also 38. A copy of this order be transmitted to the Jail Superintendent concerned and trial court for information and necessary compliance. SURESH KUMAR KAIT) JUDGE stands disposed of. MARCH 16 2021 BAIL APPLN. 2585 2020 