(1.) HEARD Mr. Ramrao Adik, Learned Sr. Counsel for the applicant and Mrs. Kantharia, learned Special Public Prosecutor for the N.C.B./respondent No.1.
(2.) THE applicant, who is the original accused No.1, and accused No.2 Zakir Husain were convicted for the offence punishable under Section 29 r/w section 21 of N.D.P.S. Act and were sentenced to undergo R.I. for ten years and fine of Rs. 1,00,000.00 in default to pay fine of Rs.. 1,00,000.00 to undergo S.I. for six months. The applicant has preferred an appeal challenging the conviction and sentence. The appeal is admitted. By his application, he seeks to be released on bail, pending final hearing and disposal of the appeal.
(3.) THE whole case of the prosecution is thus barred on Intelligence received and the confessional statements of some of the accused persons recorded under section 67 of N.D.P.S. Act. No heroin or any drug was recovered or seized from anybody. The recovery was only of amount of Rs. 15 lakh. Mrs. Kantharia, learned Special Public Prosecutor, contended that the statement recorded under section 67 of Intelligence officer is admissible in evidence and relying on certain authorities, she contended that the conviction can be based on the confessional statement alone. However, in the cases she has referred the contraband drug was actually recovered and besides that there were confessional statements under section 67 of N.D.P.S. Act. In M. Prabhulal V. Assistant Director , Director of Revenue Intelligence, 2003 (8) S.C.C. 449, 66.1 Kgs. Hashish was recovered from three accused persons and thereafter the confessional statements were also recorded. It was held that the confessional statement is admissible in evidence. In R.N. Kaker V. Shabir Fidahusein and another, 1990 CRI.L.J. 144. It was held that the statement under Section 67 NDPS Act recorded by Revenue Intelligence Officer is admissible and is not hit by section 25 of Evidence Act. However, in that case also, 1 Kg. of brown sugar i.e. Heroin was actually recovered. However, in the present case, the Intelligence Authorities recovered no Heroin and drug. The whole case is based only on recovery of amount of Rs.15 Lakh and some confessional statements. The accused persons are in jail since July, 2002. and final hearing of appeal itself may take some more years, taking into consideration the heavy pendency. In view of the circumstances, I find that the bail may be granted to the applicant pending final hearing and disposal of the appeal with certain conditions.