1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (ABA) No.307/2011 Iftikhar Khan @ Chotu s/o Mohd Rafique Khan..VS.. State of Mah Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. A.K.Bhangde, Advocate for the Applicant Mr. N.R.Rode, A.P.P. for the Non-Applicant CORAM : U.V. BAKRE, J. DATED : 12.10.2011. Heard learned counsel for both the parties. 2. The applicant, who apprehends his arrest in Crime No.3097/2011, registered at P. S. Gadge Nagar for offence under sections 20 and 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.P.S., Act), has filed this application for bail prior to his arrest. 3. Case of the prosecution is as follows:- On 3-6-2011 when PSI Chavan was performing his duty as a Night Officer, he received the secret information that one car bearing no. MH-31 GH 5361 has proceeded from Nagpur to Amravati. The said car was noticed by the complainant. The driver and co-passenger of the said car fled away by taking the advantage of Darkness. The Police tried their level best to chase the suspected persons. Thereafter the car was searched and 102 KG 692 Gm Ganja was recovered. The said car was left by the 2 unknown accused person near Baba Corner, K.l. College Road, Amravati. 4. It is revealed from the case diary and reply filed by the respondent that six accused have been arrested and two, including the present applicant, are absconding. 5. It is the contention of the applicant that though the offence was registered on 3-6-2011, the police could not get any clue for 27 days and only on 30-6-2011, two accused persons from Amravati were arrested and subsequently other four accused came to be arrested between 6-7-2011 to 10-7-2011. The applicant has stated that his name has been disclosed by some co-accused and confession of co-accused cannot be proved as against him. Since there is no other material according to applicant, he is entitled for anticipatory bail. 6. It was pointed out by learned Advocate Shri Bhangde that one of the co-accused namely Afsarkhan Miyakhan, who was arrested on 11-7-2011, has been released on bail. With regard to the above, it is seen from the case diary that the role attributed to said Afsarkhan is not similar to the role attributed to the present applicant. The applicant cannot claim parity on the ground of release of Afsarkhan on regular bail. 3 7. It is seen from the case diary that the co-accused Shaikh Ahmad wald Mohmad Jabir and Shaikh Ayyaj Shaikh Iqbal have in their statement stated that the applicant is the owner of the Ganja. The statement of Ashokkumar Pradhan, the driver of the vehicle from which the Ganja has been attached and that of Ashok alias Bulu Mohanand reveals that the applicant had engaged them for transport of the said contraband from Sambhalpur (Orisa) to Amravati. 8. All the co-accused have given their mobile numbers to the Police and the call details record furnished by Bharti Airtel Limited reveals that there was conversation between the present applicant and the co-accused Shaikh Ahmad Mohamad Jabir and Shaikh Ayyaj Shaikh Iqbal. There were about 30 to 32 calls during the relevant period. 9. Section 67 of the N.D.P.S., Act empowers the Investigating Officer to call for information from any person for satisfying himself whether there has been any contravention of the provisions of this Act and to require any person to produce or deliver any document or thing useful or relevant to the enquiry and lastly to examine any person acquainted with the facts and circumstances of the case. The statement of the co-accused and the information supplied by them, therefore is admissible under Section 67 of the N.D.P.S.,Act. 4 10. Learned Advocate Shri Bhangde has relied upon “Kishan Singh ..vs.. State of Rajasthan” [1995 CRI.L.J.3947], wherein it has been held that the confessional statement under section 67 of the N.D.P.S., Act can be admissible in evidence only as against the person who has made such confession but the same cannot be made the sole basis even for framing charge against other accused person in the absence of any independent affirmative evidence. In the case of “Monish H. Bhalla ..vs..Satya Prakash Bahl” [2005 CRI.L.J.1827], also relied upon by the learned Advocate Shri Bhangde, it has been held that a confessional statement made by co-accused implicating other accused cannot be a ground for holding that accused guilty and that such confessional statement is not substantive piece of evidence, but only corroborative evidence. Both the above citations, I am afraid, do not help the applicant. Based on the information supplied by co-accused, evidence in the form of call details has been collected. The involvement of the applicant is prima facie known from the said statements of co- accused read with the Call Details. The presence of the applicant in custody is required for custodial interrogation and for recording his statement under section 67 of the N.D.P.S.,Act, in order to get the knowledge of any conspiracy, if any, and to know as to where else, such contraband has been sent and who else is involved, etc. 11. The offence under section 20 of the N.D.P.S.,Act, pertaining to the commercial quantity of Ganja provides for 5 punishment of rigorous imprisonment for a term which may extend to ten years and to fine which may extend to one lakh rupees. There is now an increasing problem of traffic of drugs which needs to be controlled. Grant of anticipatory bail in such cases, in my view, is not advisable. The applicant is resident of Orissa State and could not be traced by the police, as yet. 12. Hence the application is rejected. JUDGE SMP