Manphool @APPELLANT@Hash Union of India

 Intercepting bus of Ashok Travels, bearing No.RJ-09-PA2488, wherein the petitioner was discharging duties as Conductor on 19th of September

2017, the CBN sleuths found five plastic bags containing 182 kg poppy straw, and thereupon, a case under Section 8/15 of the NDPS Act was

registered and petitioner was apprehended.

At the behest of petitioner, earlier, Bail Application No.10137/17 was filed but the same was withdrawn on 10th of November 2017 with liberty to file

fresh after completion of investigation, as investigation at that point of time was in vogue.

Upon completion of investigation, CBN submitted chargesheet against petitioner for offence under Section 8 read with Section 15(c) and 29 of the

NDPS Act, while keeping investigation pending against Deepak alias Dilip Soni and Rahul Sharma.

Mr. R.K. Charan, learned counsel for the petitioner, submits that after rejection of first bail application there is substantial change in the circumstances

inasmuch as investigation against the petitioner is completed.  Mr. Charan would contend that the evidence and material collected during

investigation makes it abundantly clear that petitioner has neither played any role in booking of the bags containing poppy straw nor loading of those

bags in the vehicle, as he was simply a Conductor of the vehicle. Mr. Charan has argued that, in fact, it has unearthed during investigation that Dilip

alias Deepak Soni had brought the bags for booking and booking clerk Pawan Jain, after accepting the bags booked luggage and passed on receipt to

Deepak Soni.  It is also submitted by learned counsel that the luggage was then loaded in the vehicle by labourer Asif. Â

While referring to the information divulged by petitioner under Section 67 of the NDPS Act to CBN Inspector, learned counsel contends that those

statements are not inspiring confidence inasmuch as there is no mention as to when those informations were solicited from the petitioner. It is also

submitted by learned counsel that although some of the facts allegedly revealed by the petitioner in those statements are inculpatory but by no stretch

of imagination those revelations of the petitioner are satisfying the test of prudency. Learned counsel contends that although petitioner in his

statements has named Pawan Jain and Deepak Soni for apprising him about contents of the bags but his that version is not supported by Pawan Jain

inasmuch as in his disclosure under Section 67 of the NDPS Act he himself has pleaded ignorance about contents of the bags. Taking a dig in the

manner investigation is carried out, learned counsel contends that the prosecuting agency CBN has acted in an absolutely partitioned manner inasmuch

as Pawan Jain, the booking clerk of transport company, is completely bailed out and poor fellow petitioner is sought to be prosecuted in the matter

sans any role in the entire dubious transaction.Â

Taking exception to alleged incriminating material against him, viz., statements of petitioner under Section 67 of the NDPS Act, learned counsel would

urge that petitioner has retracted from his statements at the earliest by sending letter to learned trial Court as early as on 3rd of October 2017, which

was received on 4th of October 2017.   Learned counsel, while referring to the retraction of the petitioner, submits that petitioner has

specifically alleged in his letter that his statements under Section 67 of the NDPS Act were recorded under coercion and duress.  For espousing

bail plea of the petitioner, learned counsel has also referred to the statements of labourer Asif recorded under Section 67 of the NDPS Act wherein he

has admitted loading of the bags in the vehicle and a very vital fact that bags were handed over to him for loading by Deepak Soni.  Relying on

the statements of Asif, learned counsel has argued that as per his version it was only within the knowledge of Deepak Soni and none else that the

bags were containing contraband poppy straw. Â

It is also submitted by learned counsel that during investigation call details of Deepak Soni and Rahul Sharma was collected by the prosecuting agency

and as such prima facie there is no nexus of petitioner with the contraband recovered from the bus. For substantiating his arguments in this behalf,

learned counsel has also referred to Para 9, 13 & 19 of the chargesheet/conclusion report.  Learned counsel for the petitioner has also urged

that during search and seizure of contraband, petitioner was subjected to personal search in gross violation of Section 50 of the NDPS Act inasmuch

as notice given to him under aforesaid provision contained third option of the concerned CBN Inspector besides option of a Gazetted Officer and a

Magistrate. He, therefore, urged that this sort of omission has vitiated the recovery. With all these arguments, learned counsel contended that

although contraband recovered in the matter is umpteen times higher than commercial quantity, but, in the backdrop of peculiar facts and

circumstances of the case, embargo envisaged under Section 37(1)(b) for grant of bail cannot be pressed into service. In support of his arguments,

learned counsel has placed reliance on following judgments:

◦ Raju Premji Vs. Customs NER Shillong Unit (2009 AIR SCW 4228)

◦ Union of India Vs. Bal Mukund & Ors. [(2009) 12 SCC 161] ◦ Tufan Singh Vs. State of Tamil Nadu (2013 AIR SCW 5740)

◦ State of Rajasthan Vs. Parmanand & Anr. (AIR 2014 SC 1384)

◦ Judgment in S.B. Criminal Appeal No.163/10 Shambhulal Vs. Union of India, decided on 5th of october 2017.

◦ Bail Order dated 13th of February 2014 passed in S.B. Criminal Misc. Third Bail Application No.768/2014 â€" Naushad Vs. UOI through CBN.

Per contra, Mr. N.K. Rai, Special Public Prosecutor (CBN), has vehemently opposed bail application of the petitioner.  Mr. Rai submits that

during investigation requisite incriminating evidence is collected against the petitioner including his statements under Section 67 of the NDPS Act,

therefore, bail plea of the petitioner is liable to be thwarted. Learned Special Public Prosecutor has strenuously urged that Para 25 of the conclusion

report of CBN is clear and unequivocal showing involvement of the petitioner in commission of serious offence. Mr. Rai, learned Special Public

Prosecutor for CBN, would contend that statements of the petitioner recorded under Section 67 of the NDPS Act are worth reliance and cannot be

discarded outrightly at this stage, merely on his subsequent retraction. He further submits that retraction of the petitioner from his statements under

Section 67 of the NDPS Act is an afterthought and founded on wholly false and concocted facts. While refuting the allegation of the petitioner that

he was subjected to manhandling for giving statements under Section 67 of the NDPS Act, Mr. Rai has urged that as per medical report no injury was

found on his person. Â

Learned Special Public Prosecutor has also submitted that in the instant case contraband was recovered from the bags found in the bus, and therefore,

provisions of Section 50 of the NDPS Act are not attracted.  Mr. Rai has also argued that after rejection of first bail application, there is no

material change in the circumstances inasmuch as from the conclusion report allegations against the petitioner are reinforced.  Lastly, Mr. Rai has

vehemently argued that quantum of contraband poppy straw recovered in the matter is umpteen times higher than commercial quantity, and therefore,

it is a clear case wherein embargo envisaged under Section 67 of the NDPS Act is to be invoked for nixing bail plea of the petitioner. In support of

his arguments, learned Special Public Prosecutor has placed reliance on following judgments:

(1) Kanhaiyalal Vs. Union of India [(2008) 4 SCC 668]

(2) Ram Singh Vs. Central Bureau of Narcotics (AIR 2011 SC 2490)

(3) Order dated 2nd of March 2017 passed in S.B. Criminal Misc. Bail No.1331/2017 Rajmal @ Raju Vs. Union of India.

I have given my anxious considerations to the arguments advanced by rival parties, perused the materials available on record and also gone through

the legal precedents cited at Bar.

Essentially, learned counsel for the petitioner, while espousing cause of the petitioner for grant of bail, is harping on substantial change in the

circumstances after rejection of his bail application, besides highlighting some of the relevant facts casting shadow of doubt on the prosecution case.Â

E.converso, learned Special Public Prosecutor is thriving on the material incriminating evidence against the petitioner in the form of his statements

under Section 67 of the NDPS Act and recovery of huge quantity of contraband, which is more than three times the commercial quantity.  The

crucial question about admissibility of statements of accused recorded under Section 67 of the NDPS Act by concerned CBN officials is fluid

inasmuch as in Bal Mukund, Tufan Singh and Raju Premji (supra), Apex Court has expressed doubts on admissibility of statements recorded by the

concerned officials under Section 67 of the NDPS Act. However, in Kanhaiyalal and Ram Singh (supra), any confession made by an accused

under Section 67 of the NDPS Act voluntarily is taken as admissible in evidence. Be that as it may, the facts remains that this crucial issue is still

sub-judice before the Supreme Court as the matter has been referred to Larger Bench in Tufan Singh (supra).

While it is true that accused-petitioner in his statements under Section 67 of the NDPS Act has shown his knowledge about contents of the bags

loaded in the bus, but then a cumulative reading of his statements has persuaded me to believe that these statements are not voluntarily made by the

petitioner. His admission that transporting contraband is an offence which is punishable, per se, appears to be not a candid disclosure of the

accused.  Moreover, his knowledge about contents of the bags is not corroborated by booking clerk Pawan Jain and labourer Asif, which is

clearly discernible from their statements recorded under Section 67 of the NDPS Act. Apart from that, an affirmative attempt is made by the

petitioner to retract from his statements under Section 67 of the NDPS Act at the earliest, i.e. within a period of fortnight from the date of his arrest,

has also casted a shadow of doubt on his alleged confession. Â

A very redeeming feature of the case is that the concerned CBN Inspector, while recording statements of the accusedpetitioner under Section 67

of the NDPS Act, has not mentioned time but put his signatures with date only. This sort of situation has also created some doubts about recording

of the statements before his detention or prior to that. The CBN has also submitted conclusion report while prima facie indicting the petitioner and

two other incumbents; namely, Deepak @ Dilip Soni and Rahul Sharma but for dropping the booking clerk Pawan Jain for the reasons best known to

it, has also prima facie put the investigation and the conclusion report under cloud. The factum of personal search of the petitioner, after serving

notice under Section 50 of the NDPS Act with third option of the concerned CBN Inspector, too cannot be completely ignored at this stage.Â

Therefore, in my view, despite recovery of 182 kg poppy straw, which is umpteen times higher than commercial quantity, in the backdrop of peculiar

facts and circumstances of the instant case, prima facie, satisfaction about conditions envisaged under Section 37(1)(b) of the NDPS Act can be

recorded.

In view of foregoing discussion, while refraining to make any comment on merits, I feel persuaded to accept this second bail application.

Accordingly, this second bail application is allowed and it is ordered that accused-petitioner, Manphool S/o Rohitash Yadav, arrested in connection

with FIR No.01/17 CBN, Chittorgarh, may be released on bail; provided he furnishes a personal bond of Rs.50,000/- with two sureties of like amount

to the satisfaction of learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do

so.Â