- (1.) HEARD. Perused the case diary as well i \s the challan papers in extenso.
(2.) THE S. H. O. Police Station, Nimbahera has filed a challan against the present petitioner for the offence punishable under Section 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the Act) in the court of Special Judge, N. D. P. S. Act, Cases, Pratapgarh. THE allegation against the present petitioner is that during interrogation of the principal accused Amba Lal, it was transpired that the latter was carrying 361. 500 kg. of opium, out of which 13 kg. of opium was to be delivered to petitioner Bhima, but the same could not be delivered to him, because in the encounter with the police party he got injured and his jeep carrying the said contraband article was seized. However, from this possession a slip, wherein there was a mention of "bhima 13 kg. of opium was recovered. THE another incriminating evidence against petitioner Bhinya Ram is that he in his interrogation made by the S. H. O. , Police Station, Nimbahera had informed that he used to send for the opium, that accused Amba Lal was the carrier of such contraband articles and that due to Police encounter on 2. 5. 1993, the consignment of opium to be delivered to him, could not reach. Mr. M. L. Garg, the learned counsel for the petitioner has strenuously contended that the disclosers alleged to have been made by co-accused Amba Lal and petitioner Bhima in the form of interrogation notes amount to their confessional statements, which are inadmissible in evidence under section 25 of the Evidence Act. For this he has placed reliance on the case of Raj Kumar Karwal vs. Union of India & Ors. (1 ). His another contention is that even the confessional statement of co-accused Amba Lal can not be read against the present petitioner. He has, therefore, prayed that there do not exist reasonable grounds to believe that petitioner has committed the offence punishable under section 29 of the Act and that he is likely to commit such offence which on bail. On the other hand Shri Lalit Kawadia, the learned Public Prosecutor has stoutly opposed this bail petition on the ground that so far an incomplete charge-sheet has been filed against the accused persons and that investigation is still going on under section 173 (8) Cr. P. C. He has submitted that there exist reasonable grounds to believe that the petitioner had either abetted or was a party to a criminal conspiracy for committing various offences punishable under the Act and that it is not at all necessary to establish are that any offence punishable under the Act was committed, in consequence of such abatement or in pursuance of such criminal conspiracy. I have given my most anxious and earnest consideration to the rival contentions. In slip marked No3, which is alleged to have been seized from the possession of co-accused Amba Lal, name of Bhimji and quantity of 13 kg. of opium have been mentioned. In that slip neither Bhim Ji's parentage nor his caste nor his village find mention. In Raj Kumar Karwal vs. U. O. I. & Others (Cited supra), the Apex Court after surveying and scanning the scheme, object and various provisions of the Act has held that officers of the Department of Revenue Intelligence, who have been invested with the powers of an officer-in-charge of a police station under section 53 of the Act, are not 'police officers' within the meaning of Section 25 of Evidence Act, 1872. It has observed that as Section 25 of the Evidence Act engrafts a wholesome protection, it must not be construed in a narrow and technical sense, but must be understood in a broad and popular sense. But at the same time Section 25 Evidence Act can not be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred under Section 53 of the Act within the category of police officers. The Supreme Court also negatived the contention that an officer appointed under Section 53 of the Act, other than a police officer, is entitled to exercise "all' the powers under Chapter XII of the Cr. P. C. including the power to submit a report or charge-sheet under Section 173 of the Code. Hence the resultant of the above dictum is that if any discloser is made by an accused person under section 67 of the Act before a police officer then the said statement/discloser shall be hit by the provisions of Section 25 of the Evidence Act, but if such statement/discloser has been recorded by any officer of Narcotics Department or Department of Revenue Intelligence, invested with the powers of an officer incharge of a police station under section 53 of the Act, then such statement/discloser shall be relevant and admissible, in evidence. In the instant case, admittedly, the alleged interrogation notes of co- accused Amba Lal and petitioner Bhima have been recorded by the S. H. O. , Police Station, Nimbahera. Therefore, in view of the law laid down by the Supreme Court and the express provisions of Section 25 of the Evidence Act those are not admissible in evidence.
(3.) BESIDES this, in Khalid vs. State (2), it has been held that a confession made before the police officer in an N. D. P. S. Act case by an accused is not admissible against a co-accused person and that such confession may be relevant only against the maker of such statement. It may also be pointed out here that in the interrogation note of co-accused Amba Lal, he has stated that he used to deliver opium to Bhima resident of village Pithabas, whereas the present petitioner Bhima is resident of village Dangiabas, as is evident from his arrest memo dated 26. 5. 1993. Mr. Garg has submitted that thee is no other evidence against the petitioner and that there is no ground to believe that in future the petitioner is likely to commit such an offence while on bail. The learned public Prosecutor has not been able to rebut this. ;