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Judgment
Heard learned counsel of both sides.
[2] This is an application filed seeking pre-arrest bail in favour of Sri Pallab Das in connection with Dharmanagar GRPS case No.1 of 2024 registered under Sections 20(b)(ii)(C) and 29 of the NDPS Act, 1985.
[3] The FIR was lodged by Inspector Uttam Kr. Kalai of Dharmanagar GRPS against said Pallab Das, Priyatosh Debnath and Aditya Kumar Jha with the allegations that on 22.01.2024 based on a secret information, he along with SDPO, Dharmanagar and other police personnel went to the parcel office of Dharmanagar railway station to verify the parcel containing electric control boxes of which consignor was Priyatosh Debnath and consignee was one Aditya Kumar Jha of South Bazar, Andal, Bardhaman, West Bengal. They contacted with Priyatosh Debnath over phone and he stated that the actual owner of said electric control box was present accused Pallab Das. On dissection of the said consignment, police ultimately recovered ganja of weight 61.580 kg therefrom.
[4] Police duly investigated the case and finally, laid the charge-sheet under Section 20(b)(ii)(C)/29 of the NDPS Act against Pallab Das showing him absconder and also against said Priyatosh Debnath. It is also mentioned in the charge-sheet that during investigation, police officer visited West Bengal to detain the third accused Aditya Kumar Jha and during raid in his house, they found that he has already absconded from that place and Local Panchayat Pradhan also informed that no person namely, Aditya Kumar Jha was available in that locality. Thus, according to the police, no accurate evidence could be established against said Aditya Kumar Jha and therefore, prayed for his discharge from this case. It is also however stated by the investigating officer that the case may be reopened in case if any evidence come out in near future against him.
[5] Mr. Sankar Lodh, learned counsel for the accused petitioner submits that the statements of a co-accused cannot be taken into consideration and except the same, there is no other incriminating material against the accused person to implicate him in this case. Learned counsel also argues that the CDR and SDR of phone numbers of present accused and other two co-accused were collected by the investigating officer but the opinion of the investigating officer as noted in the charge-sheet is vague as it does not disclose as to when the conversion took place between these three accused persons and as such it is not clear whether those conversation took place just before the alleged seizure or after the same or it was long prior to the date of alleged incident.
[5.1] In support of his contention, Mr. Lodh, learned counsel relies on a decision of Hon’ble Supreme Court in case of State By (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and another; Petition for Special Leave to Appeal (Crl.) No. 242 of 2022 arising out of Diary No.22702 of 2020 decided on 10.01.2022 wherein the three Judge Bench of Hon’ble Supreme Court observes at paragraph No.10 that it was held in clear terms in Tofan Singh Vs. State of Tamil Nadu; (2021) 4 SCC 1, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of the respondents is an aspect that would be examined at the stage of trial. On that point, he further relies on another decision of Hon’ble Supreme Court in case of Narayan Yadav vs. State of Chhattisgarh; 2025 SCC OnLine SC 1603 wherein reference was made to another decision in case of Faddi vs. State of M.P.; 1964 SCC OnLine SC
In Faddi it is observed that a confessional first information report cannot be used against the maker when he be an accused and necessarily cannot be used against a co-accused.
[5.2] Mr. Lodh, learned counsel further relies on another decision of Hon’ble Supreme Court in case of Asha Dubey vs. State of Madhya Pradesh; 2024 SCC OnLine SC 5633 to buttress his submission that mere publication of proclamation under Section 82 of Cr.P.C. does not debar an accused to seek pre-arrest bail. In relevant paragraph No.8 of the said decision it has been held by the Apex Court that it is not as if in all cases that there will be a total embargo on considering the application for the grant of anticipatory bail.
[5.3] Mr. Lodh, learned counsel also relies on another decision rendered in Deepankar Vishwas vs. State of M.P.; I.L.R. 2025 M.P. 1477 wherein it is observed at paragraph No.36 that where the proceedings under Section 82/83 and 299 of Cr.P.C. (84/85 and 335 of the BNSS) have been initiated against the accused and/or he has been declared proclaimed offender, the application for anticipatory bail would be maintainable, however, such consideration and grant of anticipatory bail to the accused would depend upon the gravity and seriousness of the offence involved therein. Such power of granting anticipatory bail should be exercised in a very cautious manner and in extreme and exceptional cases only in the interest of justice.
[5.4] The last citation as referred by Mr. Lodh, learned counsel is P Krishna Mohan Reddy vs. the State of Andhra Pradesh; 2025 LiveLaw (SC) 598. In paragraph No.53 thereof, it is observed that where a police statement of an accused is confessional statement, the rigour of Section(s) 25 and 26 of Indian Evidence Act will respectively apply with all its vigour. A confessional statement of an accused will only be admissible if it is not hit by Section(s) 24 or 25 respectively and is in tune with the provisions of Section(s) 26, 28 and 29 of the Evidence Act respectively. In other words, a police statement of an accused which is in the form of a confession is per se inadmissible and no reliance whatsoever can be placed on such statements either at the stage of bail or during trial. Regarding the definition of the word confession, it is also further observed therein that an inculpatory statement may be in the form of an admission or a confession. If such statement admits either a gravely incriminating fact or substantially all facts which constitute an offence, respectively, as held in Pakala Narayana Swami vs. Emperor; (1939) PC 47, then it amounts to confession.
[6] In reply, Mr. Raju Datta, learned P.P. submits that earlier the petitioner filed another petition for pre-arrest bail which was already rejected by the High Court in AB No.47 of 2024 decided on 04.10.2024. In said bail application, a Coordinate Bench of this Court while rejecting the bail observed the followings:
“…………………….On perusal of the case diary as well as the complaint, I find sufficient incriminating materials which require investigation. Particularly, in NDPS Case, the Court should always be cautious to proceed for granting anticipatory bail or even granting of regular bail in view of Section 37 of the NDPS Act.
Considering the entirety of the circumstances and keeping in mind the submissions of learned counsel appearing for the parties, I am not inclined to grant anticipatory bail to the accused-applicant, namely, Sri Pallab Das in connection with Dharmanagar GRP 001/2024.
Accordingly, the instant anticipatory bail application stands dismissed.”
Therefore, according to Mr. Datta, learned P.P., the petitioner cannot again approach this Court for anticipatory bail on similar facts situation. Learned P.P. also argues that it is the admission of the co-accused and not confession that the owner of the said consignment was Pallab Das and therefore, said admission of the co-accused cannot be discarded in the light of provisions of Section 23(1) and 23(2) of Bharatiya Sakshya Adhiniyam, 2023 (BSA).
[7] He also in this regard relies on a decision of Hon’ble Supreme Court in case of Dipakbhai Jagdishchandra Patel vs. State of Gujarat and another; (2019) 16 SCC 547 wherein at paragraph No.48 it is observed that what amounts to an admission can be used against the maker of the admission or his representative in interest. As to what constitute an admission is to be found in Section 17 of the Evidence Act. It is further observed in paragraph No. 49 that admission is a substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of a witness. At paragraph No.50, relying on another decision in case of CBI vs. V.C. Shukla; (1998) 3 SCC 410 it is further observed that from the statement of law contained in V.C. Shukla (supra), it becomes clear as to what constitutes confession and how if it does not constitute confession, it may still be an admission. Being an admission, it may be admissible under the Evidence Act provided that it meets the requirements of admission as defined in Section 17 of the Evidence Act. However, even if it is an admission, if it is made in course of investigation under the Cr.PC to a Police Officer, then, it will not be admissible under Section 162 of the Cr.PC as it clearly prohibits the use of statement made to a Police Officer under Section 161 Cr.PC except for the purpose which is mentioned therein. Statement given under Section 161, even if relevant, as it contains an admission, would not be admissible, though an admission falling short of a confession which may be made otherwise, may become substantive evidence.
[8] According to learned P.P. the statement of co-accused, Priyatosh Debnath can be used as before commencement of investigation, such statement was made by the co-accused to the police and it was not a statement recorded under section 180 of BNSS.
[9] Next point as raised by learned P.P. is that the accused was absconder since long and hence, at first warrant was issued against him vide order dated 19.03.2024 by learned Special Judge, North Tripura. Then proclamation was issued vide order dated 07.10.2024 and finally, order of attachment was also issued vide order dated 18.03.2025 but till date the petitioner has not surrendered before the Court and therefore, in such a situation, he is not entitled to get benefit of pre-arrest bail.
[10] In this regard, learned P.P. also relies on a decision of Hon’ble Supreme Court in case of Srikant Upadhyay and others vs. State of Bihar and another; (2024) 12 SCC 382 wherein at paragraph No.30 it is observed that at any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power of anticipatory bail. It is also observed that certainly, this would not deprive the power of the Court to grant pre-arrest bail in extreme and exceptional cases in the interest of justice. But then, person(s) continuously, defying the orders and keep absconding is not entitled to such grant.
[11] Mr. Datta, learned P.P. further relies on a decision of Hon’ble Supreme Court in case of State by the Inspector of Police vs. B. Ramu; Criminal Appeal No(s).___ of 2024 arising out of SLP (Crl.) No(s). 8137 of 2022 decided on 12.02.2024 wherein at paragraph No.12 it is observed that for entertaining a prayer for bail in a case involving recovery of commercial quantity of narcotic drug or psychotropic substance, the Court would have to mandatorily record the satisfaction in terms of the rider contained in Section 37 of the NDPS Act.
[12] Finally, learned P.P. relies on a recent decision of Hon’ble Supreme Court in case of Union of India vs. Chidiebere Kingsley Nawchara and others; Criminal Appeal No(s).____ of 2026 arising out of Special Leave Petition (Crl.) No(s). 14185 of 2025 and at paragraph No.14, the followings are observed:
“14.Having understood the position in detail, let us come back to the case at hand. The respondent-accused had been arrested upon the statement of the co-accused Ms. Sumi. The offence in question was committed during the period when he had been released on bail by the Delhi High Court in relation to a similar offence. The custody period in relation to the instant FIR was around two and a half years. We have perused all the orders passed by the High Court of Judicature at Bombay in the bail application. The factum of proceedings before the Patiala House Court, New Delhi is conspicuously absent from the zone of consideration. All that has been said is that since there was no recovery from him, this Court‟s judgment in Tofan Singh supra would apply and, as such, he is entitled to the relief of bail. Arguably, the insistence on the Union of India filing its affidavit would be in partial compliance with the requirement of the prosecuting agency/prosecutor being heard, but it does not tell us how the High Court came to the conclusion that there are „reasonable grounds for believing that he is not guilty‟. It is well established that both these conditions are required to be fulfilled and not either of them. If the two-and-a-half-year incarceration of the respondent-accused in the considered view of the High Court amounted to a violation of Article 21 rights of the foreigner (as the same is undoubtedly applicable to him), the same would have functioned as increasing the level of scrutiny of the actions of the prosecuting agency. Though begging the question, we put to ourselves, should not the Court have exercised a little amount of restraint, considering both the past conduct of the accused and the quantity of contraband involved, also factoring the person responsible for the delay, if any. In the impugned order, however, neither is there any discussion of the material presented warranting conviction, nor is there any discussion about the possibility of the respondent-accused again not committing such a crime.”
[13] In reply to the submission of learned P.P., Mr. Lodh, learned counsel submits that a vague order of issuing proclamation was passed by learned Special Judge and no previous notice was issued to the accused in terms of Section 82 of Cr.P.C. (corresponding to Section 84 of BNSS).
[14] As per the case diary, some witnesses have stated that after the police official went to Dharmanagar Railway Station, they came to learn that the accused Priyatosh Debnath booked the consignment in the name of co-accused, Aditya Kumar Jha. Thereafter, the police personnel talked with said Priyatosh Debnath over phone. He then informed them that the actual owner of the consignment was the present accused, Pallab Das. On opening of said consignment, total 61.580 kg ganja was recovered and seized. Therefore, the only incriminating material against the said present accused is that the co-accused, on asking by the police, informed that Pallab Das is the owner of the said goods though the name of the consigner in the parcel was Priyatosh Debnath. In the charge-sheet, the investigating officer further mentioned that during investigation, he collected CDR, SDR and CAF report from S.P., Cyber Cell and analysed the same and ultimately found that when the police detained the parcel box from Dharmanagar parcel office, the co-accused, Priyatosh Debnath contacted with Pallab Das and also the receiver, Aditya Kumar Jha through his mobile phone. But curiously enough, said CDR and SDR reports though lying in the case diary has not been submitted by the investigating officer with the charge-sheet. Why said documents are withheld by the investigating officer at the time of submission of the charge-sheet requires some inquiry. The summary report of the investigation was also submitted to the Superintendent of Police (Cyber Cell) but the said fact also missed his attention. Therefore, the Superintendent of Police will look into this matter.
[15] Now coming to the issue as raised by the prosecution regarding the admission of the co-accused utilised against another co-accused is concerned, Section 19 of the Bharatiya Sakshya Adhiniyam, 2023 [corresponding to Section 21 of the Indian Evidence Act] requires a reference. The said provision reads thus:
19. Proof of admissions against persons making them, and by or on their behalf.
Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases, namely:-
(1)an admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 26;
(2)an admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable;
(3)an admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission. (emphasis underscored)
[16] In view of the above said provisions, the admission can be used against the maker of it or his representative in interest. The matter has further been elaborated by the Hon’ble Supreme Court in the case of Dipakbhai Jagdishchandra Patel (supra) wherein it is clarified that admission is a substantive piece of evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence, and that admissions have to be clear if they are to be used against the person making them. It is also held that though admissions are substantive piece of evidence by themselves in view of Sections 17 and 21 of the Evidence Act but are not conclusive proof of matter admitted. In V.C. Shukla (supra) it is observed that voluntary and direct acknowledgement of guilt is a confession but when a confession falls short of actual admission of guilt it may nevertheless be used as evidence against the person who made it or his authorised agent as an 'admission' under Section 21 of the Evidence Act [emphasis laid]. Therefore, admission can be utilized against the person making the same or his representative in interest, but not against the co-accused unless it is a confession and is otherwise admissible in accordance with law.
[17] So far as the present case is concerned, prima-facie it appears that before the crime was detected by the police, they contacted with the co-accused, who then disclosed that the consignment was of the present accused but at that time, no offence was detected and the said co-accused has also not said anything admitting his guilt of any offence. However, all these observations are being made only for limited purposes deal with this bail application and will have no impact on the trial of the case. The other incriminating materials that the prosecution intends to rely on i.e. CDR and SDR analysis reports of the mobile phone of the present accused but as stated above, surprisingly said CDR and SDR reports are not submitted in the trial Court. However, as discussed earlier, the accused petitioner had already approached this Court, seeking anticipatory bail in connection with this case which has already been rejected by a Coordinate Bench of this Court. Moreover, the accused was absconder since long and the warrant of arrest was issued against him on 19.03.2024. Thereafter, the writ of proclamation was also issued and finally, the writ of attachment has also been issued against him, but till date he has not surrendered before the Court to cooperate in the trial.
[18] Mr. Lodh, learned counsel argues that no notice was issued to the present petitioner before issuing of proclamation and no such stipulation is imbedded in Section 87 of the BNS [corresponding to Section 84 of the Cr.P.C.].
[19] The law is already settled that normally a Court would not grant anticipatory bail to a person, who is an absconder and against whom warrant of arrest and proclamation are already issued but in very special and exceptional circumstances, the Court can exercise such extraordinary power to grant pre-arrest bail. No explanation, in this case, is coming forward from the side of the present petitioner as to why despite issuance of warrant and writ of proclamation and even thereafter, the writ of attachment, he has not responded till date. Considering all these aspects, this case cannot be treated as an extraordinary and exceptional circumstance. Moreover, once his application for pre-arrest bail is already rejected by a coordinate Bench of this Court.
Accordingly, the prayer for pre-arrest bail is rejected. However, the accused petitioner may surrender before the learned Special Judge, if so advised, and file an application for bail. If any such bail application is submitted by him before the learned Special Judge, the learned Judge will consider the same in accordance with law keeping in view of the materials placed by the prosecution.
With such observations and directions, this application for anticipatory bail is disposed of.
Send down the trial Court records with a copy of this order.
Return the case diary with a copy of this order.
Interim protection(s), if any, stands vacated.
A copy of this order also be sent to the Superintendent of Police in terms of observations made in paragraph no.14 above.