Bombay High Court Grants Bail to Customs Clearance Agent in 191.6 Kg Heroin Case: “Statements Recorded Under Section 67 of the NDPS Act Cannot Be Treated as Confessions During Trial”

1. Court’s Decision

The Bombay High Court granted bail to the applicant, accused of involvement in an NDPS Act violation concerning 191.6 kg of heroin. The court underscored that prolonged incarceration (three years) without trial violates the fundamental right to a speedy trial under Article 21 of the Constitution. It imposed strict bail conditions, including:

• A personal bond of ₹1 lakh with two solvent sureties.
• Regular attendance at trial proceedings.
• Prohibition on leaving India without court permission.
• Surrender of the applicant’s passport.

2. Facts

The Directorate of Revenue Intelligence (DRI) seized a consignment containing 191.6 kg of heroin from a container at Navkar Corporation in Raigad, Maharashtra. The applicant, a clearing agent and partner in a logistics firm, was implicated through statements recorded under Section 67 of the NDPS Act. The prosecution alleged his involvement in facilitating the clearance of the consignment. The applicant has been in custody since August 2021. Despite the passage of over three years, the trial involving 54 witnesses has not progressed, and charges have not yet been framed.

3. Issues

The court addressed two primary legal issues:

1. Right to a speedy trial: Does prolonged incarceration without trial warrant bail under Section 37 of the NDPS Act?
2. Admissibility of evidence: Can statements recorded under Section 67 of the NDPS Act be used as evidence?

4. Petitioner’s Arguments

The applicant’s counsel made the following key arguments:

• The applicant only assisted with customs clearance and had no knowledge of the narcotics concealed in the consignment.
• Statements recorded under Section 67 of the NDPS Act are inadmissible as evidence following the Supreme Court ruling in Toofan Singh v. State of Tamil Nadu.
• Over three years of incarceration without trial violates the applicant’s right to a speedy trial under Article 21 of the Constitution.
• The applicant has no prior criminal record and is willing to comply with all bail conditions.

5. Respondent’s Arguments

The respondents (DRI) opposed the bail, contending:

• The applicant’s role in facilitating the consignment’s clearance was confirmed by co-accused statements and WhatsApp communications.
• The large quantity of heroin seized triggers the stringent provisions of Section 37 of the NDPS Act, which creates a high threshold for granting bail.
• Laboratory tests confirmed the presence of heroin in the consignment, indicating serious allegations against the applicant.

6. Analysis of the Law

The court analyzed the following legal principles:

1. Admissibility of Section 67 Statements:
   • Relying on Toofan Singh v. State of Tamil Nadu, the court reaffirmed that statements recorded under Section 67 of the NDPS Act cannot be treated as confessions during trial.
   • Such statements are inadmissible because officers empowered under Section 53 of the NDPS Act are deemed “police officers” under Section 25 of the Indian Evidence Act.
2. Right to Speedy Trial:
   • The court cited the Supreme Court’s decisions in Union of India v. K.A. Najeeb and Satender Kumar Antil v. CBI, which held that prolonged incarceration without trial infringes on the fundamental right to a speedy trial.
   • The principle of conditional liberty overrides statutory embargoes like those under Section 37 of the NDPS Act when trial delays are unreasonable.

7. Precedent Analysis

The court referred to several significant judgments:

• Javed Gulam Nabi Shaikh v. State of Maharashtra: Recognized long incarceration as a violation of Article 21.
• Dheeraj Kumar Shukla v. State of Uttar Pradesh: Granted bail despite commercial quantities being involved due to trial delays.
• Mohd. Muslim alias Hussain v. State (NCT of Delhi): Emphasized a broad assessment of evidence rather than a meticulous examination at the bail stage.

8. Court’s Reasoning

The court reasoned as follows:

• The primary evidence against the applicant relied on inadmissible Section 67 statements and call records, which only established contact between the accused parties but did not demonstrate knowledge of the narcotics.
• The applicant’s business activities as a clearing agent naturally involved processing consignment documents, which cannot infer knowledge of the contraband.
• Prolonged incarceration of over three years without trial, with no charges framed or significant progress in the case, violates the applicant’s constitutional rights under Article 21.
• The court balanced the stringent requirements of Section 37 of the NDPS Act against the applicant’s right to liberty and found the latter to prevail in light of the delays.

9. Conclusion

The court concluded that the applicant is entitled to bail, given the lack of corroborative evidence, inadmissibility of Section 67 statements, and the inordinate delay in trial proceedings. However, the court imposed strict conditions to prevent misuse of liberty.

10. Implications

• Impact on NDPS Prosecutions: The judgment reinforces limitations on the admissibility of Section 67 statements, impacting ongoing and future NDPS cases.
• Right to Speedy Trial: The ruling highlights the judiciary’s commitment to upholding Article 21, even in cases involving serious offences like drug trafficking.
• Conditional Liberty: Courts may increasingly grant bail when trial delays render incarceration unjustifiable, even under stringent laws like the NDPS Act.

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