Confessional statement recorded u/s 67 of NDPS Act will remain inadmissible in trial of offence under such Act, reiterates Top Court

Read Order: STATE BY (NCB) BENGALURU & ORS. vs. PALLULABID AHMAD ARIMUTTA & ORS. 

Pankaj Bajpai

New Delhi, January 24, 2022: While quoting the judgment in Tofan Singh Vs. State of Tamil Nadu , (2021) 4 SCC 1, the Supreme Court has recently opined that the arrests made by the NCB, on the basis of the confession/voluntary statements of the co-accused u/s 67 of the NDPS Act, cannot form the basis for releasing the accused persons on bail. 

A Larger Bench of Chief Justice N.V Ramana, Justice Hima Kohli and Justice Surya Kant however observed that an accused cannot seek parity with the co-accused and no such benefit could have been extended to him in view of Section 37 of the Act when he was found to be in conscious possession of commercial quantity of psychotropic substances, as contemplated under the NDPS Act.

The observation came pursuant to a petition filed by Narcotic Control Bureau (Petitioner – NCB) challenging the order, whereby the High Court of Karnataka has released PALLULABID AHMAD ARIMUTTA & ORS (Respondents) on bail for the offences punishable u/s 8(c), 8A r/w/s 20(b), 21, 22, 27A, 27B, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), as the case may be. 

Going by the background of the case, the NCB had received information that two persons i.e., Nausheer Mohammed [first Accused] and Noushad Mannakkamvalli [second Accused] were going to carry drugs and travel to Doha by Oman Airways from Bengaluru International Airport. Immediately on receiving such information, a team of NCB officers arrived at the airport and on searching the luggage, seized 4.525 Kgs of Hashish, 965 Grams of Amphetamine and 30 Grams of Cocaine. Accordingly, they were arrested along with others (Respondents). However, all the accused persons were granted bail. 

After considering the submissions, the Larger Bench found that except for the voluntary statements of first & second accused and that of the respondents themselves recorded u/s 67 of the NDPS Act, it appears, prima facie, that no substantial material was available with the prosecution at the time of arrest to connect the respondents with the allegations levelled against them of indulging in drug trafficking. 

It has not been denied by the prosecution that except for the respondent in SLP (Crl.) No. 1569/2021, none of the other respondents were found to be in possession of commercial quantities of psychotropic substances, as contemplated under the NDPS Act, added the Bench. 

Speaking for the Bench, Justice Hima Kohli highlighted that the CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. 

Accordingly, the Top Court dismissed the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents. 

However, the Apex Court bail cancelled the bail granted to the second Accused and he is directed to surrender before the Sessions Court/Special Judge (NDPS) within a period of two weeks, for being taken into custody.