Bombay High Court Grants Bail to Accused in NDPS Case: Emphasizes Inadmissibility of Section 67 Confessions, Insufficient Evidence from Co-Accused Statements, and Lack of Corroboration for CDRs and WhatsApp Messages

Court’s Decision

The Bombay High Court allowed the bail applications of Accused Nos. 2 and 4 under Section 439 of the Code of Criminal Procedure (Cr.P.C.). The decision was primarily based on the absence of admissible evidence, particularly confessions recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The Court held that statements of co-accused and call detail records (CDRs) lacked corroborative evidence and could not meet the threshold required under Section 37 of the NDPS Act for denying bail.

The Court imposed strict bail conditions, including the surrender of passports, periodic reporting to the investigating officer, and cooperation with the trial.

Facts

1. Background of the Case:
   • A parcel booked from the Netherlands in the name of Accused No. 1 was intercepted by officials of the Narcotic Cell Customs Preventive Rummaging and Intelligence Wing at the Foreign Post Office (FPO), Mumbai.
   • The parcel contained 45 grams of MDMA and 0.64 grams of cocaine, which are classified as narcotic substances under the NDPS Act.
2. Prosecution’s Case:
   • The prosecution alleged that Accused No. 4 orchestrated the smuggling operation.
   • Accused No. 2 was said to have surveilled the area outside the FPO while Accused No. 1 attempted to collect the parcel.
   • The involvement of Accused No. 4 was primarily based on phone calls, WhatsApp messages, and the statement of Accused No. 1.
3. Controlled Delivery Operation:
   • The FPO officers attempted a controlled delivery of the parcel twice, which failed.
   • On the third attempt, Accused No. 1 came to collect the parcel but was apprehended, and he pointed to Accused No. 2 as an accomplice.

Issues

1. Whether the confessional statements recorded under Section 67 of the NDPS Act are admissible as evidence.
2. Whether sufficient evidence exists to establish a prima facie case of conspiracy and possession of contraband against the applicants.

Petitioner’s Arguments

1. Accused No. 4:
   • He was not present at the scene, and there was no evidence linking him directly to the parcel.
   • His alleged involvement was based solely on co-accused statements, which are inadmissible.
   • There was no money trail, transaction, or other corroborative evidence to support the allegations.
2. Accused No. 2:
   • He merely accompanied Accused No. 1 and had no possession of the contraband.
   • The evidence against him was limited to WhatsApp messages and co-accused statements, which are insufficient to prove knowledge or involvement in the crime.

Respondent’s Arguments

1. The prosecution claimed that Accused No. 4 was the mastermind behind the operation, having instructed his employees to collect the parcel.
2. Accused No. 2 was alleged to have surveilled the area and informed Accused No. 4 about the presence of government officials near the FPO.
3. The prosecution relied on CDRs, WhatsApp messages, and co-accused statements to establish the conspiracy.

Analysis of the Law

1. Admissibility of Statements Under Section 67 of NDPS Act:
   • The Court relied on the Supreme Court’s judgment in Toofan Singh vs. State of Tamil Nadu (2021), which held that confessions recorded under Section 67 of the NDPS Act are inadmissible as they are akin to confessions made to police officers under Section 25 of the Indian Evidence Act, 1872.
2. Threshold Under Section 37 of NDPS Act:
   • Section 37 imposes strict conditions for granting bail in cases involving commercial quantities of contraband. The accused must prima facie not be guilty, and there should be no likelihood of reoffending.
   • The Court found that the prosecution failed to meet these conditions as there was no evidence of conscious possession or direct involvement by the accused.
3. Call Detail Records and WhatsApp Messages:
   • The Court observed that reliance on CDRs or WhatsApp messages without corroborative evidence is insufficient to establish a prima facie case at the bail stage.

Precedent Analysis

1. Toofan Singh vs. State of Tamil Nadu:
   • Confessions recorded under Section 67 of the NDPS Act are inadmissible as evidence.
2. Vikramjit Singh vs. Narcotics Control Bureau:
   • Statements of co-accused require corroboration to be admissible.
3. Bharat Chaudhary vs. Union of India:
   • WhatsApp messages alone cannot establish guilt at the bail stage.
4. Phundreimayum Yas Khan vs. State (NCT of Delhi):
   • Co-accused statements are inadmissible without corroborative evidence.

Court’s Reasoning

1. The prosecution’s case relied heavily on statements of co-accused recorded under Section 67, which are inadmissible as per Toofan Singh.
2. There was no direct evidence of conscious possession or knowledge of the contraband by the applicants.
3. The alleged conspiracy could not be established based on uncorroborated CDRs or WhatsApp messages.
4. The Court noted the importance of balancing societal concerns about drug offenses with the individual liberty of the accused, particularly in light of prolonged trials and overcrowded prisons.

Conclusion

The Court directed the release of Accused Nos. 2 and 4 on bail, subject to the following conditions:

1. Furnishing a personal bond of ₹50,000 with sureties.
2. Regular reporting to the investigating officer.
3. Cooperation with the trial and adherence to all dates of hearings.
4. Restrictions on leaving the state without prior permission and surrender of passports.

The Court clarified that these observations were limited to the bail stage and would not influence the trial.

Implications

This judgment reinforces the importance of adhering to evidentiary standards under the NDPS Act. It highlights the judiciary’s role in safeguarding individual liberty while addressing societal concerns regarding drug offenses. The decision underscores the inadmissibility of confessions recorded under Section 67 and the need for corroborative evidence to establish guilt.

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