TaxTMI 
TaxTMI 
2021 (3) TMI 752
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....rm 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. 3. The crux of the prosecution case, as per complaint dated 09.01.2020, is that upon receipt of secret information by Chetan Sharma, Intelligence Officer (IO) that 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, Ajay Kumar, Speoy and N.P. Singh, Driver, collected the DD....
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....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 with notice under Section 67 of NDPS Act. 6. 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 (petitioner herein) 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". 7. 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 Ja....
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.... 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. 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 substance....
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.... 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 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 ....
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.... 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. 20. 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. 23. It is an admitted case of both the sides that name of petitioner popped up in this case in the statement made by co-accused Gaurav Kumar Aggarwal. It is al....
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....ard to the evidentiary value of Section 67 of NDPS Act in Tofan Singh (Supra) has held as under:- "158. 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." 28. 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 (Supra), 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 ....
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....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 : (i) were they made voluntarily and (ii) are they true?". xxx xxx xxx "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 evidence. It would depend on the nature of the circumstan....
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....tion 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 (2 of 1974) - (a) every offence punishable under this Act shall be 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 (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for belie....