The Bombay high court (HC) recently granted bail to two persons who were booked and arrested by the Narcotics Control Bureau (NCB) in April 2018 based on statements by two other accused, who later retracted their statements. The court held that statements recorded under section 67 of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985 were not admissible and as the bank statements and call records did not confirm the role of the two in the syndicate as alleged by the NCB. The court hence granted them bail.
Section 67 of the NDPS Act states that any authorised officer may, during any inquiry, may call for information from any person to satisfy himself whether there has been any contravention of the provisions of the Act.
The single bench of justice Prakash D Naik, while hearing bail applications of Shashikant Prabhu and Harshad Gawde, was informed by advocates Rajendra Shahasane and Vinay Nair that the evidence recorded under section 67 of the NDPS Act was not admissible in the court as evidence. They further submitted that the statements under the said section had been retracted by the other co-accused, and as there was no corroborative evidence, the two should be granted bail.
The advocates submitted that the bail applications of their clients had been rejected by the special court in December and October 2018, respectively.
The first three accused had been arrested in March 2018 by the NCB, and recovery of 4kg of hashish was made from them. While recording the statements of the three accused under section 67 of the NDPS Act, the names of the current applicants came up. While Prabhu was arrested for selling drugs, Gawde was arrested for running the business of buying, selling and procuring drugs on behalf of accused No 2, who owned a restaurant.
However, the special public prosecutor for NCB opposed the applications and submitted that the offences were of a serious nature and the applicants were part of the drug syndicate that trafficked hashish and other drugs since 2017. He also submitted that there was evidence in the form of bank transactions between Gawde and accused No 2, and call records between Prabhu and accused No 2.
After hearing the submissions, the bench observed, “Prima facie, there is nothing to indicate that the amount was relating to sale or procurement of the drug. No other incriminating evidence to show involvement of the applicants is on record. There is no recovery from the applicants.”
The court also referred to the October 2020 Supreme Court judgement in the Tofan Singh vs state of Tamil Nadu case wherein the Apex court had held that the statement under section 67 of the NDPS Act cannot be relied upon. “In any case, there is no corroborative evidence to substantiate the averment in the statements of the accused. Hence, the embargo under section 37 of the NDPS Act would not cause impediment for granting bail to the applicants,” the court said.