Bail.Appn. 2211/2008 Page 1 of 25 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Bail.Appn. 2211/2008 % Date of reserve : 01.09.2009 Date of decision : 23.09.2009 HARPREET SINGH BAHAD …PETITIONER Through: Mr. KTS Tulsi,Sr.Advocate with Mr.S.S.Das and Mr.Maheen Pradhan, Advocates Versus D.R.I. ...RESPONDENT Through: Mr.Satish Aggarwal and Mr.Shirish Aggarwal, Advocates CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers Yes may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? MOOL CHAND GARG, J. 1. This order shall dispose of the bail application filed by the petitioner, who is in judicial custody since 20.8.2004 in a complaint case filed by the respondents under Section 21 of the NDPS Act pending before the Additional Chief Metropolitan Magistrate, New Delhi, on the allegations that a huge quantity of contraband i.e. 22.855 kg of heroin was seized from a Maruti Zen car bearing registration No. DL-9CJ-5397, which was parked outside the Hotel Sangam Palace, Meera Bagh, New Delhi on 18.08.2004. Bail.Appn. 2211/2008 Page 2 of 25 The said car was found to be in the possession of two persons viz. Ravinder Singh Mann and Roshan Lal, both co-accused of the petitioner. It is alleged that the recovered contraband were supplied by the present petitioner to the co-accused persons. 2. It is submitted by the petitioner, that the evidence relied upon by the respondent against him is inadmissible as the said evidence comprises of the statement of co-accused persons recorded under Section 67 of the NDPS Act, which cannot be used against him unless it is corroborated by other independent evidence. As far as his own statement is concerned, it is submitted that the same was not a voluntary statement but was taken under duress and in this regard he made an application before the ACMM concerned after he was produced before the ACMM along with medical report which was prepared by the Jail Doctor and which shows that he was tortured by the respondents. As regards the statement of Ravi Bhatia, who appeared as PW-4 before the trial court, it is submitted that the said witness has not supported the case of the prosecution. It is also submitted that even if his statement under Section 67 of the NDPS Act is taken into consideration, the same does not involve the petitioner with the crime. He only said that the vehicle in question was left at his premises for repairs. The vehicle does not belong to the petitioner. 3. It is further submitted by the petitioner that he is in custody for a period of more than five years. The case of the prosecution is not proceeding with pace and so far they have examined only twelve witnesses Bail.Appn. 2211/2008 Page 3 of 25 and at least 10 witnesses still remains to be examined. Despite the directions given by this Court in the case of co-accused being Crl.M.C.No. 3317/2007 to expedite the proceedings in this case and to conclude the proceedings within a period of six months vide order dated 25.10.2007, the trial has not been expedited. In fact, the report of the Additional Sessions Judge, South District, shows that as on 14.09.2009 only eight witnesses had been examined and despite detailed directions issued to the DRI for producing the witnesses by fixing the case from 4th March, 2009 to 6th March, 2009, only two witnesses were examined. 4. The petitioner has also submitted that in the absence of any corroborating evidence, the continued detention of the petitioner solely on the statement of co-accused and the statement of the petitioner recorded under Section 67 of the NDPS Act, which is retracted and is not a voluntary statement, the petitioner cannot be convicted in this case and therefore, it is a case where the petitioner is entitled to be released on bail despite rigor of Section 37 of the NDPS Act. Reliance has been placed on the following judgments: i. Union of India Vs. Bal Mukund & Ors. JT 2009 (5) SC 45. ii. Francis Stanly @ Stalin Vs. Intelligence officer, Narcotic Control Bureau, Thiruvananthapuram AIR 2007 SC 794. iii. Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569. iv. Raju Premji Vs. Customs NER Shillong Unit, 2009 (7) SCC 569. Bail.Appn. 2211/2008 Page 4 of 25 v. State of Uttranchal Vs. R.K.Gupta, (2007) 1 SCC 355. vi. Ranjit Singh Brahmjeet Singh Sharma Vs. State of Maharashtra & Anr., 2005 II AD (Crl) SC 193. vii. Supreme Court Legal Aid Committee Representing Undertrial Prisoners Vs. UOI & Ors. – (1994) 6 SCC 731. viii. Noor Aga Vs. State of Punjab & Anr. 2008 VIII AD (SC) 435. ix. Kashmir Singh Vs. NCB, Bail Application No. 2314/2006 decided on 18.08.2006. x. Suresh Kumar Sharma Vs. DRI, Bail Application No. 1087/2009 decided on 07.07.2009. 5. The respondents on the other hand have submitted that the statements recorded by the DRI officials, who are not the police officials, under Section 67 of the NDPS Act are admissible in evidence against the maker of those statements as well as against the others also, which means that it is admissible against the petitioner as well as against the co-accused persons. Regarding non-voluntary nature of the statement made by the petitioner, it is submitted that the retraction was not done immediately but was made only after two days. The medical examination has been done by the Medical Superintendent as per the procedure and the injuries which were found to be on the person of the petitioner are not of such a nature which might be inflicted upon a person after subjecting him to torture. The respondents have relied upon the following judgments:- (i) Abbas Khan Vs. Central Bureau of Narcotics, Criminal Appeal No. 101 of 2005 decided on 14th January, 2009. Bail.Appn. 2211/2008 Page 5 of 25 (ii) Ravinder Singh Vs. State of Maharashtra, 2002 (2) JCC 1059. (iii) Rehamtullah Vs. Narcotics Control Bureau, Criminal Appeal No.90 of 2005 decided on 18th July, 2009. (iv) Raj Kumar Karwal Vs. Kirpal Mohan Virmani, 1991 Cri. L.J. 97. (v) Kanhaiyalal Vs. Union of India, 2008 I AD (Cr.) (S.C.) 277. (vi) Ramesh Chandra Mehta Vs. State of W.B., AIR 1970 SC 940. 6. It is also submitted that the respondents are not to be blamed for the delay in the disposal of the matter inasmuch as on each and every hearing the respondents have been prosecuting the matter with due diligence. It is also submitted that even if the case of the petitioner is accepted that it is the case of no evidence, yet the second condition under Section 37 of the NDPS Act is required to be fulfilled, that is to say, the Court has to be satisfied that the petitioner will not be involved in future in similar nature of crime. 7. I have considered the submissions made on behalf of the parties and have perused the judgments cited by them. In the case of Bal Mukund (supra) relied upon by the petitioner, it has been held:- 19. The prosecution case principally hinges on the purported confessions made by the respondents. The learned Special Judge failed and/ or neglected to notice that the respondent No. 3 had retracted his confession at the earliest possible opportunity. He could have, therefore, been convicted only if independent corroboration thereof was available. Admittedly, no contraband was found from his possession. He was prosecuted for entering into a conspiracy in regard to commission of the offences under Section 8/18 of the Act with the respondent Nos. 1 and 2. Such conspiracy was not proved by the prosecution. No evidence whatsoever was brought on record in that behalf. Bail.Appn. 2211/2008 Page 6 of 25 The High Court, in our opinion, therefore, rightly accepted the contention of the said respondent, stating: 12. As far as appellant Amritlal is concerned, he was apprehended only on the basis of the statement made by the appellants Bal Mukund and Basantilal. The only evidence available against him is his confessional statement recorded under Section 67 of the Act. M.R. Narvale (PW-7) has stated in his statement that statement of Amritlal Anjana Ex. P/24 was recorded by him. The contents of Ex. P/24 have not been duly proved by the prosecution. The so called confession has been retracted by the appellant Amritlal. He cannot be convicted only on the basis of Ex. P/24. Even the confessional statements of co-accused cannot form the basis of his conviction. His conviction is not based on the evidence and cannot be sustained. 20. For recording his conviction, confession of the respondent Nos. 1 and 2 had been taken into consideration. 21. Mr. B.B. Singh would urge that the statements made by the respondent Nos. 1 and 2 purported to be in terms of Section 67 of the Act were admissible against the co- accused. Strong reliance in this behalf has been placed on Naresh J. Sukhawani v. Union of India AIR 1996 SC 522 wherein it was held: 4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine. 22. No legal principle has been laid down therein. No reason has been assigned in support of the conclusions arrived at. If a statement made by an accused while responding to a summons issued to him for obtaining information can be applied against a co-accused, Section 30 of the Evidence Act being not applicable, we have not been shown as to under which other provision thereof, such a confession would be admissible for making the statement of a co-accused relevant against another co-accused. If an accused makes a confession in terms of the provisions of Bail.Appn. 2211/2008 Page 7 of 25 the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. If such a legal principle can be culled out, the logical corollary thereof would be that the co-accused would be entitled to cross-examine the accused as such a statement made by him would be prejudicial to his interest. 23. We may notice that in State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru AIR 2005 SC 3820, this Court has laid down the law in the following terms: 38. The use of retracted confession against the co- accused however stands on a different footing from the use of such confession against the maker. To come to grips with the law on the subject, we do no more than quoting the apt observations of Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of M.P. Before clarifying the law, the learned Judge noted with approval the observations of Sir Lawrence Jenkins that a confession can only be used to "lend assurance to other evidence against a co-accused. The legal position was then stated thus: (SCR p. 530) Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. 39. The crucial expression used in Section 30 is "the Court may take into consideration such confession" (emphasis supplied). These words imply that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co- accused. The import of this expression was succinctly explained by the Privy Council in Bhuboni Sahu v. R in the following words: (AIR p. 260) The court may take the confession into consideration and thereby, no doubt, makes its evidence on which the court may act; but the section does not say that the confession Bail.Appn. 2211/2008 Page 8 of 25 amounts to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. 8. It would also be relevant to take note of some of the observations made in the aforesaid judgment, which deals with the purport and reasoning as to what Section 67 of the NDPS Act means. The relevant paragraphs are reproduced hereunder:- 25. Section 67 of the Act reads as under: 67 - Power to call for information, etc. Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,-- (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case. 26. How and at what point of time the said provision was invoked is not known. The situation in which such purported statements have been made cannot also be lost sight of. The purported raid was conducted early in the morning. A large number of police officers including high ranking officers were present. Search and seizure had been effected. According to the prosecution, each of the respondent Nos. 1 and 2 were found to be in possession of 10 Kg. of narcotics. No information was sought for from them. It is doubtful whether they had made such statements on the road itself. 27. Exhibits 20 and 21 categorically show that they were interrogated. If they were interrogated while they were in custody, it cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act. We, in the backdrop of the aforementioned events, find it difficult to accept that such statements had been made by them although they had not been put under arrest. As the authorities under the Act Bail.Appn. 2211/2008 Page 9 of 25 can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken. 28. This Court in D.K. Basu v. State of West Bengal AIR 1997 SC 610 laid down the law that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. This rule was also invoked by a Constitution Bench of this Court in State of Punjab v. Baldev Singh AIR 1999 SC 2378, wherein it was held: 28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As Page 2956 already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose - to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must think itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. See also Noor Aga v. State of Punjab and Anr. 2008 (9) SCALE 681. 29. The court while weighing the evidentiary value of such a statement cannot lose sight of ground realities. Circumstances attendant to making of such statements should, in our considered opinion, be taken into consideration. Bail.Appn. 2211/2008 Page 10 of 25 30. Concededly, the Act provides for a stringent punishment. We, for the purpose of this case, shall proceed on the assumption, as has been contended by Mr. Singh, that the prosecution need not examine any independent witness although requirements therefor cannot be minimized. See Ritesh Chakeravarty v. State of Madhya Pradesh JT 2006 (12) SC 416 and Noor Aga (supra). 31. Where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years, and making stringent provisions for grant of bail, scrupulous compliance of the statutory provisions must be insisted upon. While considering a case of present nature where two persons may barely read and write Hindi, are said to have been used as carrier containing material of only 1.68% of narcotics, a conviction, in our opinion, should not be based merely on the basis of a statement made under Section 67 of the Act without any independent corroboration particularly in view of the fact that such statements have been retracted. 32. Mr. Singh placed strong reliance upon a decision of this Court in A.K. Mehaboob v. Intelligence Officer, Narcotics Control Bureau 2001 (10) SCC 203. The Bench repelling the arguments that (i) the statement made by the accused had been retracted; (ii) the appellant informed the Magistrate that the said statement had been coaxed out from him; and (iii) the said statement was not corroborated, opined: 5. There is nothing to indicate that Exhibit P-8 had been elicited from A-2 by any coercion, threat or force and, therefore, the learned Single Judge of the High Court had spurned down that contention. Regarding the complaint alleged to have been made by the appellant Naushad on 11-3-1994, we have perused it. His case therein was that he offered himself to be a witness in the case and some reward was offered for it. It was on the said offer that he agreed to sign the said statement.... There exists a distinction between a case where the accused himself had stated that he had made the statement on the belief that he would be rewarded and a case where such purported confession had been obtained upon interrogation by High ranking police officials. 33. Yet again in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence AIR 2003 SC 4311, the retraction was made only when the accused was being examined under Section 313 of the Code of Criminal Procedure. No credence was given to such a retraction made after such a long time. This Court taking into consideration the entire factual matrix involved in the case opined that the confessional statement could not be held to be involuntary and they were voluntarily made. Such is not the case here. We have pointed out several circumstances to show that the accused had been put under interrogation. Bail.Appn. 2211/2008 Page 11 of 25 34. Reliance has also been placed on Kanhaiyalal v. Union of India AIR 2008 SC 1044. In that case, no question was put in cross-examination to the police officer (PW-9) whose evidence had been relied upon by the High Court and, thus, his evidence was stated to be corroborative of the statement made by the accused. However, it is interesting to note that in Francis Stanly Alias Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram (2006) 13 SCC 210, this Court opined: 15. We are of the opinion that while it is true that a confession made before an officer of the Department of Revenue Intelligence under the NDPS Act may not be hit by Section 25 in view of the aforesaid decisions, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act. Hence the alleged confession made by the same appellant must be subjected to closer scrutiny than would otherwise be required. 16. We have carefully perused the facts of the present case, and we are of the opinion that on the evidence of this particular case it would not be safe to maintain the conviction of the appellant, and he must be given the benefit of reasonable doubt. 35. In Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate and Anr. 2007 (8) SCC 254, in a case involving the Foreign Exchange Regulation Act, this Court held: 19. Apart therefrom the High Court was bound to take into consideration the factum of retraction of the confession by the appellant. It is now a well- settled principle of law that a confession of a co- accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom... 36. In Ravindran Alias John v. Superintendent of Customs 2007 (6) SCC 410, this Court opined: 19...The confessional statement of a co-accused could not be used as substantive evidence against the co-accused. 37. In Noor Aga (supra), this Court held that whether the confession was made under duress or coercion and/ or voluntary in nature should be considered having regard to the facts and circumstances of each case. It was opined: 102. Section 25 of the Evidence Act was enacted in the words of Mehmood J in Queen Empress v. Babulal ILR (1884) All. 509 to put a stop to the extortion of confession, by taking away from the police officers as the advantage of proving such Bail.Appn. 2211/2008 Page 12 of 25 extorted confession during the