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Judgment
Application for regular bail under section 439 of Cr.PC.
The applicant is the first accused in Crime No. 64 of 2020 of Elamakkara Police Station, for having allegedly committed the offences punishable under Sections 22(c), 8(c) 27A, 28, 29 & 30 of the NDPS Act, Sections 468, 419 & 120 B of IPC, Section 14(a) & 14(b) of the Foreigners Act and Sections 3 (a) & 3(3) of the Passport Act and Rules 3(a), 6 (b) & 6(c) of the Passport Rules.
The prosecution case, in brief, is this: The applicant hatched a conspiracy to push drugs, along with the remaining accused. On 02/03/2020 at about 6:00 PM., accused Nos.2 and 3 were together found to be in possession of 18 gms of MDMA from OYO Rooms in contravention of the NDPS Act and the Rules and were arrested. On interrogating them, they revealed the applicant as the source who supplied the drugs to them at Bangalore. The applicant had earlier been involved in a Narcotic case at Panaji in Goa. He is a Nigerian citizen, and was residing in India in violation of the provisions of the Foreigners Act as well as the Passport Act. He was arrested on 10/10/2020, and remanded. He continues to remain in custody. His application for bail was dismissed by the Sessions Court, and has therefore, approached this Court for indulgence.
The applicant contends that there is no material to implicate him in this Crime apart from the confession statements of the co-accused. Nothing incriminating was recovered from him. It is also stated that the contraband seized was identified by the Chemical Analyst to be Methamphetamine and not Methylene Dioxy Methamphetamine (MDMA) as considered by the detecting officer. Resultantly, the gravity of the offence allegedly committed by the accused is reduced, and the quantity of the contraband becomes intermediary and not commercial as was originally alleged. The rigour under Section 37 of the NDPS Act would therefore not be attracted.
Heard the learned counsel for the applicant and the Senior Public Prosecutor. The learned Sessions Judge had declined bail solely for the reason that the applicant is a person with antecedents and is a foreign national, and therefore, likely to abscond if released on bail.
After having considered the submissions made across the Bar and on going through the records available, I find that the prosecution case against the accused rests solely on the alleged confession statements of the co-accused. In Tofan Singh v. State of Tamilnadu [2020 SCC OnLine SC 882] the Supreme Court has held that officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning of the Evidence Act, as a result of which any confession made to them would be barred under section 25 of the Evidence Act and cannot be taken into account in order to convict an accused under the NDPS Act. And 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. There is no corroborative material relied upon by the prosecution to support those statements. Moreover, the contraband seized is not commercial so as to attract the embargo under section 37 of the NDPS Act. The fact that the applicant is a foreign national cannot be a reason to decline bail. Conditions to ensure his appearance can be imposed.
In the result, the application is allowed, and the applicant is directed to be released on bail on execution of a bond for Rs.2,00,000/- (Rupees two lakhs only) with two local sureties for the like amount each to the satisfaction of the jurisdictional court, and on following further conditions:
He shall surrender his passport before the jurisdictional court and shall not get it released or go abroad until permitted by the said court.
He shall not get involved in offences of similar nature during the bail period.
He shall not tamper with evidence, intimidate or influence witnesses.
Breach of the conditions shall entail in cancellation of bail on application filed by the prosecution before the jurisdictional court.