Prashant Rai vs State Of Madhya Pradesh

This application has been filed on behalf of the applicant under section 439 of the Cr.P.C, for offences under section 8(c)/20 (B) A (ii) (c) of the NDPS Act, registered vide Crime No.04/2019, at P.S. NCB Indore, District Bhopal.

The present applicant is in judicial custody since 23.11.2019 in the aforesaid case.

The allegation against the applicant is that he was the prospective receiver of the contraband. The contraband is 404 kilograms of Ganja, which was being transported by a truck and which was intercepted by the respondent. The section 67 statements under NDPS Act of the co-accused Radhe Raikwar and Sukhbir Singh were recorded. They stated that the truck belonged to one Manish Gupta and the material that was purchased was from one Dilip and the same was to be supplied to the applicant herein. Admittedly, the evidence against the applicant is only the statements under section 67 of the co-accused Radhe Raikwar and Sukhbir Singh. It is also an admitted position that nothing incriminating has been seized from the applicant herein.

Learned counsel for the applicant submits that the applicant has already completed about 9 months in judicial custody on a weak piece of evidence, which is a confession made by a co-accused by which the applicant has been implicated.

The learned Assistant Solicitor General, while vehementally opposing the application for grant of bail, has submitted that in para 8 of the complaint filed before the learned Court below by the NCB it is very clearly stated that on the basis of the statements of the co-accused the applicant has been implicated as being the recipient of the contraband.  In paragraph 11, the NCB has stated that the call records of Sukhbir reveals that there was conversion between him and the applicant.  In paragraph 12 they have referred to the previous antecedents of the applicant wherein there was another case in which he is an accused of similar nature.

The Assistant Solicitor General has also drawn the attention of this Court to the Judgment of the Supreme Court in Kanhaiya Lal Vs. Union of India (2008) 4 SCC 668, in which there is an elaborate discussion of section 67 and how the statement itself can be used for the purpose of convicting the accused as the same is recorded by the persons who by definition under the law are not Police Officers and, therefore, the Bar of section 25 of the Evidence Act would not apply. Learned Assistant Solicitor General has also stated that the date on which the statement of confession of the applicant herein was recorded was 22.11.2019, but he was not arrested on that date and in that document a warning is recorded that he is not bound to make statement and anything that he says can be used against him in any Court anywhere in India,  and despite that he has given the confession to the effect that this contraband material was to be received by him.

Per contra, learned counsel for the applicant submits that the very fact that this statement was alleged to have been given by the applicant before his arrest goes to show that the probability of the applicant being misguided by the respondent is very high. Had he been arrested, perhaps the applicant may not have ever made such a statement.   He further states  that such a confession can be procured from a prospective accused by hoodwinking him that he is not going to be made an accused and rather his statement is going to be recorded as a witness and his signature can be taken on a blank piece of paper and then the matter can be filled up lateron which, according to the learned counsel for the applicant has probably happened in this particular case.

Learned counsel for the applicant has also stated that the Judgment in Kanhaiyalal Vs. Union of India has been referred to a larger bench. However, till the said judgment is set aside, this Court is of the opinion that the same is good law and would have the force of a precedent on all inferior Courts below the Supreme Court. However, even in Kanhaiyalal Vs. Union of India, the extent of whether the statement of a co-accused implicating another under section 67 can be used as affirmative evidence to convict the co-accused has not been examined.

Be that as it may, giving due regard to the arguments from both sides, this Court is of the opinion that looking to the period of incarceration already undergone by the applicant which is almost 9 months and an early conclusion of the Trial does not seem probable in the present circumstances and also the fact that nothing has been recovered from the applicant herein and that besides his alleged confession dated 22.11.2019 there is nothing else to implicate the applicant herein but for the statement of the co-accused persons also under section 67 of the NDPS Act, the application is allowed and it is directed that the applicant shall be enlarged on bail upon his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with on solvent surety in the like amount to the satisfaction of the Trial Court.

The jail authorities shall have the applicant checked by the jail doctor to ensure that he is not suffering from the coronavirus and if he is, he shall be sent to the nearest hospital designated by the State for treatment. If not, he shall be transported to his place of residence by the jail authorities.

Certified copy as per rules.