J.B. Pardiwala, J. - (1.) THIS is an application for regular bail filed by an accused, who has been arrested in connection with a complaint lodged by the Intelligence Officer of the Narcotics Control Bureau, Ahmedabad, bearing F. No. NCB/AZU/Cr -03/2003, under Sections 8(c), 20(b)(ii)(c), read with Sections 29, 27(A) and 25 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short "the Narcotics Act"). The same has culminated in the NDPS Sessions Case No. 1/04, pending as on today in the Court of the learned Third Additional Sessions Judge, Nadiad.
(2.) THE case of the Department may be summarized as under: - - "2.1 A specific information was received on 15.7.2003 by one of the Officers of the Narcotics Control Bureau, AZU, Ahmedabad, that "A person named Anwar Amir Mirja Baig @ Raju who is an absconding offender and now a days is doing business of "Charas" at Balasinor. Currently, Anwar @ Raju along with one person named Illiyas Pathan have brought a big consignment of Charas from Kashmir in TATA Sumo vehicle having registration number GJ -2K -7281. Anwar @ Raju is going to deliver a part of this consignment of Charas to Ganibhai Mohammadbhai R/i Baroda at College Bus Stand, Sevalia Road, Balasinor on 15.7.2003 at around 4.00 P.M. Ganibhai is coming to take the delivery of Charas in white Maruti Car No. GJ -6 -A -1400." 2.2 The said information was reduced in writing and was placed in a sealed cover bearing seal No. 6 NCB. AZU. A team comprising of the Officers and other staff members of the NCB, Ahmedabad including the local Police was formed. Two persons were called and briefed about the information and were asked to act as the panch witnesses for the purpose of carrying out the personal search of the suspects. 2.3 A close vigil was kept near the College Bus Stand, Sevalia Road, Balasinor. At around 4 P.M., on 15.7.2003, two persons came at the Bus Stand from the direction of Balasinor on a silver coloured Passion Motorcycle and waited there. After some time, a white coloured Maruti car was spotted coming from the direction of Baroda, bearing Registration No. GJ -6 -A -1400. The car came and stopped near the two persons who had come on the motorcycle and were standing at the bus stand. The driver of the car came out and shook hands with the driver of the motorcycle. The pillion rider handed over a bag to the driver of the motorcycle, who in turn handed over the bag to the driver of the car. The raiding team immediately rushed at the spot and were able to intercept all the three persons. The driver of the motorcycle introduced himself as Anwar Amir Mirja @ Raju and the other person disclosed his name as Hidayatkhan Pathan @ Raju. The driver of the Maruti car introduced himself as Ganibhai Mohammadbhai Shaikh, a resident of Baroda. On being asked about the contents of the bag, it was disclosed by Anwar Amir Mirja @ Raju and Ganibhai Mohammadbhai Shaikh that it contained "Charas". The necessary procedure of search and seizure was undertaken in accordance with the law. The contraband was seized and sealed in accordance with the provisions of the law. A sample was drawn from the packet containing the contraband and the same was tested positive for "charas" with the aid of the Field Drug Testing Kit, being a narcotic substance. 2.4 On further inquiry, Hidayatkhan Pathan disclosed that a vehicle i.e. a Tata Sumo had been parked at the residence of his brother Illiyas Pathan (the present applicant -accused), near the Taluka Panchayat Office, Balasinor, in which Anwar Amir Mirja @ Raju and Illiyas Pathan had brought the contraband charas from Kashmir. Thereafter, the members of the raiding party along with the panchas and the three persons caught at the Bus Stand reached at the place described by Hidayatkhan Pathan. A white coloured Tata Sumo bearing Registration No. GJ2 K -7281 was found parked at that particular place. The car was not locked. Anwar Amir Mirja @ Raju disclosed that a cavity had been formed beneath the luggage carrier on the roof of the vehicle. Anwar Amir Mirja and Hidayatkhan Patan opened the luggage carrier and removed the same. On the roof of the vehicle, few screws were noticed and on opening the screws, the upper sheet was removed. On the sheet being removed, the cavity was noticed and thirteen packets were recovered from the cavity. 2.5 The three persons who were intercepted at the Bus Stand were issued summons under Section 67 of the NDPS Act. Their statements were recorded, wherein they disclosed the mode and the manner in which the consignment of Charas was brought from Kashmir by the applicant herein and Anwar Amir Murja @ Raju. Anwar Amir Mirja @ Raju, in his statement recorded under Section 67 of the NDPS Act stated that on the day, he along with the other two was intercepted, Illiyaskhan Pathan, the applicant herein, at around 3 to 4 P.M had taken out two packets of charas from the cavity of the Tata Sumo No. GK2 -K 7281 and had instructed to deliver the same to Ganibhai, a resident of Baroda. The applicant herein instructed his brother Hidayatkhan @ Raju to assist Anwar in delivering the packet of charas to Ganibhai at the College Bus Stand, Sevalia Road, Balasinor. 2.6 All the three persons were thereafter, arrested and were remanded to judicial custody. A summons under Section 67 of the NDPS Act was also issued to the applicant herein, but he failed to respond to the said summons and absconded. The three persons i.e. the co -accused were put to trial in the Sessions Case No. 1/04. All the three were held to be guilty of the offence under the NDPS Act. 2.7 Anwar Shaikh @ Raju who had brought the contraband along with the applicant herein was awarded death penalty, as in one another case No. NCB -CR -04/1991, he was found guilty by the Court and was sentenced to undergo ten years of imprisonment. He was ordered to be released on parole after his conviction and while on parole, he jumped the parole and absconded. He once again indulged in the same activity along with the present applicant. Since it was his second conviction, he was awarded death penalty so far as the other two co -accused are concerned, they were sentenced to undergo imprisonment for a period of ten years with fine. 2.8 It appears from the materials on record that in the past, two cases were registered against the applicant herein, one being C.R No. I -93/04 and the other being C.R No. I -75/11, of the offence under Section 326 IPC, with the Balasinor Police Station. It also appears that the applicant herein remained absconding from 2003 onwards and abruptly, he was arrested on 27th May, 2014 by the local Police in connection with the two offence referred to above. After being arrested in the two offence referred to above, the NCB was informed about his arrest and thereafter, by a transfer warrant, the NCB took him in custody. 2.9 It appears that the summons was issued under Section 67 of the NDPS Act on 27.4.2014 and was served upon the applicant herein. His statement under Section 67 was recorded, wherein he admitted about the ownership of the car containing a cavity, which was being made at the cost of Rs. 10,000/ -. He also admitted that he used to keep charas and liquor in the cavity for the purpose of carrying it to a particular place for being delivered. He also admitted that it was within his knowledge that his brother and the two co -accused were arrested in connection with the seizure of 40 kgs. of charas. He also admitted that apprehending arrest by the Department, he fled away. He has also admitted that he used to visit Balasinor discretely for the purpose of meeting his family members. He has also admitted that he knew Anwar @ Raju i.e. the co -accused who had brought charas from Kashmir along with the applicant herein. Of course, he has not admitted that he had also gone to Kashmir along with Anwar to get charas. 2.10 The complaint against the applicant herein was lodged on 4th September, 2014 and the same has culminated in NDPS Sessions Case No. 2 of 2014. The complaint against the applicant herein was filed under Section 36A(d)(iv) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (as amended). 2.11 The applicant herein, after his arrest, filed a bail application in the Court of the learned Sessions Judge, Kheda at Nadiad. The learned Third Additional Sessions Judge, Kheda, vide order dated 20th October, 2014, rejected the same. Being dissatisfied, the applicant has filed the present application seeking bail." Mr. Qureshi, the learned advocate appearing on behalf of the applicant vehemently submitted that his client was not absconding and was very much available all through out at Balasinor. He submitted that no summons under Section 67 of the NDPS Act in the year 2003 was served upon him. He submitted that his client was available all through out, but no steps were taken by the Department to arrest the applicant. He submitted that no warrant was issued for his arrest and no proceedings were initiated for declaring the applicant as a proclaimed absconder. In such circumstances, the stance of the Department that the applicant -accused was absconding for a period of almost 11 years is not tenable and should be ignored. 3.1 Mr. Qureshi submitted that besides the statements of the three co -accused who were tried earlier and convicted, there is no other material against the applicant herein. In such circumstances, according to Mr. Qureshi, the question which arises for consideration is whether the bare confession of one of the accused implicating the other accused, can be treated as substantive evidence. He submits that the statements of the co -accused have been recorded under Section 67 of the NDPS Act. Those statement may be inculpatory and may be involving the present applicant also. However, there is no provision under Section 67 of the NDPS Act like one under Section 15 of the TADA Act, which makes the statement of an accused admissible against the co -accused, conspirators or abettors. He further submitted that the Court should not start with the confession of a co -accused. It must begin with the other evidence adduced by the prosecution, and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the confession whether there are any reasonable grounds to believe that the accused is guilty of the offence under the Act. He submitted that the confession of a co -accused can be looked into only to provide corroboration to the other evidence against the accused, but when there is no other evidence the question of corroboration from the confession of such a co -accused would not arise. He submitted that under Section 30 of the Evidence Act, the confession made by one accused is not substantive evidence against the co -accused. It has only a corroborative value. 3.2 Mr. Qureshi has placed strong reliance on a decision of the Supreme Court in the case of Noor Aga v. State of Punjab and anr. reported in : (2008) 16 SCC 417, wherein the Supreme Court has doubted the correctness of the statement of law made in its earlier decision in the case of Kanhaiyalal v. Union of India, reported in : AIR 2008 SC 1044, so far as the evidentiary value of the statements recorded under Section 67 of the NDPS Act is concerned. Mr. Qureshi submitted, relying on the decision of Noor Aga (supra) that the statement recorded by the Investigating Officer under Section 67 of the Act cannot be treated as a confessional statement and the same would be hit by Sections 24 and 25 of the Evidence Act. 3.3 Mr. Qureshi also placed reliance on a recent decision of the Supreme Court in the case of Tofan Singh v. State of T.N, reported in : 2013 Criminal Law Journal 4990, wherein the Supreme Court considered the conflict between the case of Kanhaiyalal (supra) and Noor Aga (supra), and thought fit to refer the issue before the Hon'ble the Chief Justice for constituting a Larger Bench in that regard. He has also relied upon a decision of the Supreme Court in the case of Nirmal Singh Pehlwan @ Nimma v. Inspector, Customs, reported in : (2011) 12 SCC 298, wherein it has been observed that in Kanhaiyalal (supra), the Bench had not examined the principles and the concepts underlying Section 25 of the Evidence Act, 1872 vis   -vis Section 108 of the Customs Act and the powers of a Customs Officer, who could investigate and bring for trial an accused in a narcotic matter. The Bench further observed in the said case that it would be proper for them to follow the ratio of the judgment in Noor Aga (supra). Thus, according to Mr. Qureshi, there being no prima -facie case against the applicant herein, he deserves to be enlarged on bail subject to any terms and conditions, which this Court may deem fit to impose.
(3.) THIS application has been vehemently opposed by Mr. K.T. Dave, the learned counsel appearing for the Department. Mr. Dave submitted that this application for bail should be rejected solely on the ground that the applicant -accused was absconding for a period of eleven years. Mr. Dave submitted that there is no need to go into any other issues like the evidentiary value of the statements under Section 67 of the NDPS Act. Mr. Dave pointed out that the applicant, in his own statement recorded under Section 67 of the NDPS Act, has confessed that he was absconding and he knew everything about the arrest of the other co -accused and their conviction. Mr. Dave submitted that the argument canvassed on behalf of the applicant that his statement recorded under Section 67 of the NDPS Act is exculpatory is not correct. According to Mr. Dave, there are many admissions made by the applicant in his statement under Section 67 of the Act, which goes to show that on his instructions, the packet of charas was delivered to the co -accused namely Ganibhai and he had also asked his own brother, who is also one of the co -accused and a convict, to assist Anwar @ Raju for delivering the packet. Mr. Dave submitted that in his statement under Section 67, he has also admitted about making of a cavity in his own vehicle registered in his name, in which he used to clandestinely store drugs and liquor. 4.1 Mr. Dave submits that taking into consideration the provisions of Section 37 of the NDPS Act, no case is made out for the release of the applicant on bail. Mr. Dave pointed out that the Supreme Court, in Tofan Singh's case (supra), has directed the registry to place the matter before the Hon'ble the Chief Justice for the decision on the issue by a Larger Bench, but that would not dilute or nullify the principles of law explained by the Supreme Court in the case of Kanhaiyalal (supra). Till the issue is decided by a Larger Bench, the dictum of law as laid down in Kanhaiyalal (supra) would still hold the field and could be said to be the law within the meaning of Article 141 of the Constitution of India.;