Union of India vs Counsel for Applicant(s)

1. Heard learned counsel for the applicant, Sri Krishna Agarawal, learned counsel for opposite party and perused the record.

2. The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No.5 of 2021, under Sections 8/21, 25 & 29 N.D.P.S. Act, 1985, Police Station Aata, District- Jalaun, during pendency of trial.

3. Learned counsel for the accused-applicant submitted that the applicant has been falsely implicated in this case. No contraband narcotic drugs and psychotropic substance was recovered from the possession of the accused applicant. The applicant is neither the driver nor the cleaner of the alleged vehicle, he is only the owner of in question bearing No.RJ08GA7186. He was not present in the said truck. He has been involved in this case on the basis of statement of other co-accused persons Tarachand and Dilkhush, who have been arrested on the spot by the competent authority and it has been stated that 9 kilograms of heroine was recovered from the possession of both the co-accused persons. The competent authority of Narcotic Bureau has not complied the provision of Sections 53, 55 and 57 of the N.D.P.S. Act. It is further submitted that the statement recorded under Section 67 of N.D.P.S. Act, is hit by the provision of Section 25 of the Evidence Act and it cannot be taking into account as an evidence. The applicant is made an accused in the present case solely on the basis of CDR/ statement of co-accused. It is further submitted that the applicant has no criminal history except the present case. He is in judicial custody since 08.06.2022 (more than three years). There is no likelihood of 2 BAIL No. 20130 of 2023 his fleeing from course of justice or tampering with evidence in case of release on bail.

4. Learned counsel for the applicant has placed reliance upon the judgment of Hon'ble Supreme Court in Case of Tofan Singh Vs. State of Tamil Nadu, 2021 (2) SCC(Cri) 246. In the said judgment, the Hon'ble Supreme Court has held 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 provision of Section 25 of the Evidence Act. 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. Thus, compelling an accused to give a self incriminatory statement violates the rights under Article 20(3) of the Constitution, therefore, any confession made before an NDPS officer cannot be a sole basis of conviction. All the safeguards provided under the NDPS Act must be scrupulously followed.

5. Learned counsel for opposite party/ NCB has vehemently opposed the above arguments and submitted that the applicant is the main accused. He was in touch through mobile with other two co-accused persons namely Tarachand and Dilkhush, who were present in the aforesaid truck and arrested on the spot by the competent authority. The applicant was regulating the smuggling of the heroine through his truck.

6. It is an admitted fact that the accused-applicant was not present in Truck No.RJ08GA7186. The prosecution version is that 9 kilograms of illegal morphine and codeine were recovered from the possession of co-accused persons namely Tarachand and Dilkhush who were said to be driver and cleaner of the vehicle. The role and involvement of the accused applicant- Deepak Chauhan is came into light on the basis of confessional statement of other two co-accused Tarachand and Dilkhush, who have been arrested on the spot by the competent authority of Narcotic Bureau. It is also an admitted fact that applicant was not present on the spot. In the complaint, the role and involvement of the applicant is said to be conspirator. Submission of learned counsel for the opposite party that the applicant was in touch with co- accused persons through mobile, but learned counsel for applicant submits that no any kind of reliable details of phone calls/ CDR has been submitted after 21.10.2021. 3 BAIL No. 20130 of 2023

7. In the recovery memo, 9 kilograms of heroine is said to be recovered from the possession of co-accused Dilkhush and Tarachand. There is signatures of Tarachand and Dilkhush on the recovery memo, which is available on the record. Thus, it is an admitted fact to both the parties that no any kind of contraband heroine was recovered from the possession of the accused- applicant.

8. Regarding bail application under N.D.P.S. Act it is pertinent to mention Section 37 of N.D.P.S. Act. Section 37 of the N.D.P.S. Act reads 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 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 believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

9. Thus, the conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail, "not guilty" means that it can only be a prima facie determination.

10. In State of Punjab Vs. Baldev Singh 1999 (6) SCC 172 the Hon'ble Supreme Court held that the compliance of Section 50 N.D.P.S. Act is mandatory. ".....That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to 4 BAIL No. 20130 of 2023 inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search......" (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused."

11. In the decisions in Pankaj Bansal v. Union of India 2024 (7) SCC 576, Prabir Purkayastha v. State (NCT of Delhi) 2024(8) SCC 254 and Vihaan Kumar v. State of Haryana AIR 2025 SC 1388, it has been held that the requirement of informing a person of grounds for arrest is a mandatory requirement of Article 22(1) and also that the information of the grounds for arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts confuting the grounds imparted and communicate to the arrested person effectively in the language which he understands.

12. Considering all above facts and circumstances, the nature of accusations, twin principles as laid down in Section 37 of N.D.P.S. Act, period of detention in jail, fact of no recovery from the possession of accused, severity of the punishment in the case of conviction and nature of supporting evidence, reasonable apprehension of tampering with the witness and prima facie case, but without commenting on merit of case, a case for bail is made out.

13. Accordingly, the bail application is allowed.

14. Let the accused-applicant, Deepak Chauhan, involved in above mentioned case crime number be released on bail, on his executing a personal bond and two reliable heavy sureties each, in the like amount to the satisfaction of the court concerned, subject to the following conditions: (i) The applicant shall not tamper with the evidence or threaten the witnesses. (ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law. 5 BAIL No. 20130 of 2023 (iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A I.P.C./269 B.N.S. (iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C./84 B.N.S.S. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A I.P.C./209. B.N.S. (v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C./351 B.N.S.S. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

15. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

16. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. September 1, 2025 Radhika (Santosh Rai,J.) RADHIKA VISHWAKARMA RADHIKA VISHWAKARMA High Court of Judicature at Allahabad High Court of Judicature at Allahabad

1. Heard learned counsel for the applicant, Sri Krishna Agarawal, learned counsel for opposite party and perused the record.

2. The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No.5 of 2021, under Sections 8/21, 25 & 29 N.D.P.S. Act, 1985, Police Station Aata, District- Jalaun, during pendency of trial.

3. Learned counsel for the accused-applicant submitted that the applicant has been falsely implicated in this case. No contraband narcotic drugs and psychotropic substance was recovered from the possession of the accused applicant. The applicant is neither the driver nor the cleaner of the alleged vehicle, he is only the owner of in question bearing No.RJ08GA7186. He was not present in the said truck. He has been involved in this case on the basis of statement of other co-accused persons Tarachand and Dilkhush, who have been arrested on the spot by the competent authority and it has been stated that 9 kilograms of heroine was recovered from the possession of both the co-accused persons. The competent authority of Narcotic Bureau has not complied the provision of Sections 53, 55 and 57 of the N.D.P.S. Act. It is further submitted that the statement recorded under Section 67 of N.D.P.S. Act, is hit by the provision of Section 25 of the Evidence Act and it cannot be taking into account as an evidence. The applicant is made an accused in the present case solely on the basis of CDR/ statement of co-accused. It is further submitted that the applicant has no criminal history except the present case. He is in judicial custody since 08.06.2022 (more than three years). There is no likelihood of 2 BAIL No. 20130 of 2023 his fleeing from course of justice or tampering with evidence in case of release on bail.

4. Learned counsel for the applicant has placed reliance upon the judgment of Hon'ble Supreme Court in Case of Tofan Singh Vs. State of Tamil Nadu, 2021 (2) SCC(Cri) 246. In the said judgment, the Hon'ble Supreme Court has held 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 provision of Section 25 of the Evidence Act. 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. Thus, compelling an accused to give a self incriminatory statement violates the rights under Article 20(3) of the Constitution, therefore, any confession made before an NDPS officer cannot be a sole basis of conviction. All the safeguards provided under the NDPS Act must be scrupulously followed.

5. Learned counsel for opposite party/ NCB has vehemently opposed the above arguments and submitted that the applicant is the main accused. He was in touch through mobile with other two co-accused persons namely Tarachand and Dilkhush, who were present in the aforesaid truck and arrested on the spot by the competent authority. The applicant was regulating the smuggling of the heroine through his truck.

6. It is an admitted fact that the accused-applicant was not present in Truck No.RJ08GA7186. The prosecution version is that 9 kilograms of illegal morphine and codeine were recovered from the possession of co-accused persons namely Tarachand and Dilkhush who were said to be driver and cleaner of the vehicle. The role and involvement of the accused applicant- Deepak Chauhan is came into light on the basis of confessional statement of other two co-accused Tarachand and Dilkhush, who have been arrested on the spot by the competent authority of Narcotic Bureau. It is also an admitted fact that applicant was not present on the spot. In the complaint, the role and involvement of the applicant is said to be conspirator. Submission of learned counsel for the opposite party that the applicant was in touch with co- accused persons through mobile, but learned counsel for applicant submits that no any kind of reliable details of phone calls/ CDR has been submitted after 21.10.2021. 3 BAIL No. 20130 of 2023

7. In the recovery memo, 9 kilograms of heroine is said to be recovered from the possession of co-accused Dilkhush and Tarachand. There is signatures of Tarachand and Dilkhush on the recovery memo, which is available on the record. Thus, it is an admitted fact to both the parties that no any kind of contraband heroine was recovered from the possession of the accused- applicant.

8. Regarding bail application under N.D.P.S. Act it is pertinent to mention Section 37 of N.D.P.S. Act. Section 37 of the N.D.P.S. Act reads 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 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 believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

9. Thus, the conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail, "not guilty" means that it can only be a prima facie determination.

10. In State of Punjab Vs. Baldev Singh 1999 (6) SCC 172 the Hon'ble Supreme Court held that the compliance of Section 50 N.D.P.S. Act is mandatory. ".....That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to 4 BAIL No. 20130 of 2023 inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search......" (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused."

11. In the decisions in Pankaj Bansal v. Union of India 2024 (7) SCC 576, Prabir Purkayastha v. State (NCT of Delhi) 2024(8) SCC 254 and Vihaan Kumar v. State of Haryana AIR 2025 SC 1388, it has been held that the requirement of informing a person of grounds for arrest is a mandatory requirement of Article 22(1) and also that the information of the grounds for arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts confuting the grounds imparted and communicate to the arrested person effectively in the language which he understands.

12. Considering all above facts and circumstances, the nature of accusations, twin principles as laid down in Section 37 of N.D.P.S. Act, period of detention in jail, fact of no recovery from the possession of accused, severity of the punishment in the case of conviction and nature of supporting evidence, reasonable apprehension of tampering with the witness and prima facie case, but without commenting on merit of case, a case for bail is made out.

13. Accordingly, the bail application is allowed.

14. Let the accused-applicant, Deepak Chauhan, involved in above mentioned case crime number be released on bail, on his executing a personal bond and two reliable heavy sureties each, in the like amount to the satisfaction of the court concerned, subject to the following conditions: (i) The applicant shall not tamper with the evidence or threaten the witnesses. (ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law. 5 BAIL No. 20130 of 2023 (iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A I.P.C./269 B.N.S. (iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C./84 B.N.S.S. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A I.P.C./209. B.N.S. (v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C./351 B.N.S.S. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

15. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

16. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. September 1, 2025 Radhika (Santosh Rai,J.) RADHIKA VISHWAKARMA RADHIKA VISHWAKARMA High Court of Judicature at Allahabad High Court of Judicature at Allahabad