1. Heard Sri Arun Sinha, learned counsel for the accused-applicant, Ms. Shikha Sinha, learned counsel for NCB and perused the record.
2. The present bail application has been filed by the accused-applicant in NCB Crime No. 18 of 2020, under Sections 8/ 18/ 29 N.D.P.S. Act, District Lucknow.
3. 13.8 Kg opium was allegedly recovered from Truck No. U.P. 25 DT 4386, which was driven by co-accused Kauser Husain. The truck was coming from Latehar, Jharkhand to Lucknow via Bareilly. Present accused-applicant is the owner of the truck. Co-accused, Kauser Hussain in his statement recorded before his arrest under Section 67 of the N.D.P.S. Act had stated that the accused-applicant was the main person who sent his truck to Latehar, Jharkhand to bring the opium, which was meant to be delivered to the accused-applicant. Call details of the present accused-applicant and co-accused at Latehar, Jharkhand from whom the opium was procured would demonstrate that they were in constant touch and they had spoken to each other several times, during this period.
4. Sri Arun Sinha, learned counsel for the accused-applicant submits that in view of the judgment of the Supreme Court in the case of Tofan Singh Vs. The State of Tamil Nadu, delivered in Criminal Appeal No. 152 of 2013, it has been held that the statements recorded under Section 67 of the N.D.P.S. Act are not admissible and they are the statement as police records under Section 161 Cr.P.C. On the basis of the statement recorded under Section 67 of the N.D.P.S. Act, the conviction cannot be take place of an accused. He further submits that except the statement of the co-accused there is no evidence against the accused-applicant and, therefore, he is entitled to be enlarged on bail.
5. On the other hand Ms. Shikha Sinha, learned counsel for N.C.B. has opposed the bail application and submitted that it is not only the statement of the co-accused recorded under Section 67 of the N.D.P.S. Act, which is against the accused-applicant, but the truck belongs to him. Call detail records would disclose that the accused-applicant was the main accused in the offence and looking at the quantity of the opium involved in the offence, it is not a case for grant of bail to the accused-applicant. She further submits that the accused-applicant does not satisfy the conditions of Section 37(1-B) of the N.D.P.S. Act and, therefore, this bail application is liable to be rejected.
6. I have considered the submissions advanced by learned counsel for the accused-applicant and learned counsel for the N.C.B.
7. The quantity of opium involved in the case is much more than the commercial quantity as prescribed under the N.D.P.S. Act. The accused-applicant is the truck owner. CDR regarding the conversation between the accused-applicant and co-accused has been placed on record, which would demonstrate that both were in constant touch. The phone record between accused-applicant and Jai Kishore Gupta, a resident of the Latehar from where the opium was loaded is on record. Therefore, at this stage, it cannot be said that only the statement recorded under Section 67 of the N.D.P.S. Act is against the accused-applicant, but there is other evidence as well.
8. Considering these facts of the case and without entering into the merit of the case, I do not find any good ground where the accused-applicant should be enlarged on bail, at this stage and, therefore, the present bail application is hereby rejected.
Order Date :- 25.1.2021 Abhishek Singh