Nirmal Dudhani vs Union Of India

Heard learned counsel for the parties. The petitioner has been arrested in FIR No.DRI/UZU/JRU/19/INI-4/2016 dated 26.4.2017 for the offences punishable under Sections 22(c), 23(c), 25, 25A, 27A & 29 read with Sections 2, 8 & 8A of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Rules 53A, 64A, 65A, 66 and 67 of the Narcotic Drugs and Psychotropic Substances Rules, 1985. He has preferred this bail application under Section 439 Cr.P.C.

Learned counsel for the petitioner has submitted that the petitioner has falsely been implicated in this case by the Prosecuting Agency i.e. the Director of Revenue Intelligence. It is argued that the entire case against the petitioner is solely based on the confession of the petitioner and other co-accused persons recorded by the Prosecuting Agency under Section 67 of the NDPS Act. It is argued that the Hon'ble Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu (Criminal Appeal No.152/2013) decided on 29th October, 2020 has specifically held that the statement recorded under Section 67 of the NDPS Act in front of a police officer cannot be used as a confessional statement in the trial for an offence under the NDPS Act. It is argued that the official of the DRT, who has recorded the confessional statement of the petitioner under Section 67 of the NDPS Act was a police officer and, as such, the confessional statement made in front of him would be barred under the provisions of Section 25 of the Evidence Act. Learned counsel for the petitioner has further submitted that the petitioner was the employee of main accused Subhash Dudhani, who was the owner of factory premises, from where, the Prosecuting Agency has allegedly recovered huge quantity of methaqualone tablets containing narcotic substances above commercial quantity. It is further submitted that the petitioner was working as a Supervisor in the said factory and was getting salary of Rs.15,000/- per month. It is argued that the Prosecuting Agency has failed to collect any evidence of this effect that the petitioner was aware about manufacturing of methaqualone tablets containing narcotic substances in the said factory. It is submitted that in the absence of any such evidence available on record, it cannot be said that the petitioner was guilty of manufacturing or possessing the said narcotic contraband.

Learned counsel for the petitioner has invited my attention towards various findings recorded by the Prosecuting Agency in the charge-sheet and argued that from the said findings, it cannot be concluded that the petitioner was involved in commission of crime in any manner or was having knowledge of this effect that in the factory premises, where he was working as a Supervisor, methaqualone tablets containing narcotic substances are being manufactured. It is also submitted that the petitioner is in custody from last around more than fifty months and there is no likelihood that the trial against him is going to be concluded early and, in such circumstances, he is entitled to be enlarged on bail.

Per contra, Mr. B.P. Bohra appearing for Union of India has vehemently opposed the bail application and submitted that on 28.10.2016, when the factory premises in question were raided, the petitioner was present there and he provided keys of the locks put on the gates of the rooms and go-downs of the factory and after opening the said locks, huge quantity of methaqualone tablets containing narcotic substances above commercial quantity and other materials were found. It is submitted that it is difficult to believe that the petitioner being the In-charge of the factory was not aware about manufacturing of the prohibited drugs there. Mr. Bohra has further submitted that the Prosecuting Agency has also collected evidence of this effect that the petitioner was also supervising the works of transporting drugs at various places. It is also argued that the petitioner is the nephew of main accused Subhash Dudhani and is working with him since decades and it is clear that he was not simply a Supervisor of the factory, but was involved in manufacturing of the prohibited drugs along with other co-accused persons. It is further argued that at the time of seizure of the narcotic contraband, the petitioner was present there and the rooms and go- downs of the factory, from which, the methaqualone tablets containing narcotic substances were found, were in his conscious possession as he was possessing keys of the locks put on those rooms and go-downs. Mr.Bohra has, therefore, submitted that involvement of the petitioner in the commission of crime is more than clear and as the narcotic contraband recovered in the matter is above commercial quantity, he is not entitled to be enlarged on bail in view of the provisions of Section 37 of the NDPS Act.

Heard learned counsel for the parties and perused the material available on record.

As per the charge-sheet, at the time of seizure of the methaqualone tablets containing narcotic substances above commercial quantity, the petitioner was very much present there and the keys of the locks put on the rooms and go-downs, where the narcotic contraband was stored, were provided by the petitioner only. The petitioner was working in the factory since so many years where the prohibited drugs were being manufactured and even if it is assumed that the petitioner was working there as a Supervisor, at this stage, it is difficult to comprehend that he was not aware about manufacturing of the prohibited drugs in the said factory.

Having regard to the overall facts and circumstances of the case and in view of limitations as provided under Section 37 of the NDPS Act, I do not find it to be a fit case for granting bail to the petitioner.

Hence, this bail application is dismissed.