Sunday, September 25, 2022

Supreme Court grants bail to man jailed for more than a year under NDPS Act

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The Supreme Court has granted bail to a man incarcerated for more than a year in a case related to the seizure of pseudoephedrine, a controlled substance under the NDPS Act. 

It was alleged in the complaint by NCB that the controlled substance allegedly being exported to Australia secretly with the exercise equipment. 

During the hearing, Advocate Rakesh Talukdar argued on behalf of the petitioner. He said the present matter pertains to the seizure of a controlled substance and not a narcotic.

The entire case of the prosecution hinges upon the statements of the co-accused recorded under Section 67 of NDPS Act, which are not admissible for conviction as per law laid down by the Court in “Toofan Singh Vs State of Tamil Nadu,” he argued.

He further argued that the allegation, against him was with regard to the alleged substance which was not even recovered from him. Thus, he prayed that petitioner be released on bail as he is languishing in jail for more than a year now. 

The bench led by the CJI NV Ramana has asked the stand of the Centre on the submissions made by petitioner’s counsel. 

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Per contra, the Additional Solicitor General appearing for the Centre, has apprised the Bench that the rigours of Section 37 will not apply to the present case. Though, his (accused) own statement is admissible in the evidence. That he knows Shabnam, who booked the consignment. He said the recovery from the accused on the place of occurrence is not required for attracting the provisions of Section 29 of the NDPS Act. Although no minimum punishment is prescribed in case of controlled substance, however, Section 25A of the NDPS Act provides punishment in respect of Controlled substance with a rigorous imprisonment which may extend to ten years and fine which may extend to one lakh. 

However, the Apex Court Bench, which also comprised Justice Krishna Murari and Justice Hima Kohli, granted bail to petitioner considering the fact he is in custody for over a year and the substance is a controlled substance. “We deem it to be a fit case to grant him bail. Accordingly, directed to be enlarged on bail on terms and conditions to be imposed by the trial court,” noted the bench in its order. 

A case was registered by the NCB under Sections 9A, read with Section 25A/29 of the NDPS Act, 1985, against the petitioner. “During the export of a consignment to Australia from Kolkata, the substance pseudoephedrine was recovered from within the declared goods due for shipment. Although the petitioner was not the consignor of the shipment the prosecution alleges that certain other co-accused and witnesses identified the petitioner as the person who had purchased the exercise equipment where the recovered items were hidden,” read the plea. 

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The present plea has been filed against the order passed by the Calcutta High Court wherein the Court had noted though the restrictions under Section 37 of the Narcotic Drugs and Psychotropic Substance Act does not apply but there is a reasonable nexus of the link which is yet to be unearth, we do not feel it is a fit case where he should be released on bail. 

“There appears to have been a link sought to be established to curb the menace of illegal export of the contraband or the controlled substance, which has an impact of tarnishing the republic of the country, which has gained after a herculious exercise”

-noted the High Court. 

Statement recorded under Section 67 of the NDPS Act not admissible for conviction: read plea

The petitioner contented that the whole case of the prosecution hinges upon statements recorded under Section 67 of the NDPS Act, which are not admissible for conviction as per the law laid down by the Top Court in Toofan Singh Vs State of Tamil Nadu, wherein it was held that officers invested with powers under Section 53 are police officers within the meaning of Section 25 of the Evidence Act. Hence, any confessional statement made to them would be barred under Section 25 of the Evidence Act and cannot be taken into account in order to convict accused under the Act. Hence, a statement under Section 67 cannot be used as a confessional statement in trial of an offence under the Act. 

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Rigours of Section 37 NDPS Act not applicable, in view of Controlled substance, plea stated. 

Plea contented that it is settled law that the rigours of Section 37 NDPS Act would not apply in the present case as the substance recovered is not a narcotic drug or a psychotropic substance but a controlled substance. The distinction between the said categories has been recognised both in statute as well as several judicial pronouncements. The petitioner further contented that the High Court had granted bail in similar cases dealing with the controlled substances. 

The present plea has been filed by Advocate-on-Record Surabhi Guleria and argued by Advocate Rakesh Talukdar and Advocate Ashray Chopra.

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