SURESH Vs. STATE OF M P

JUDGEMENT

(1.) By this application filed under section 439 of the CrPC, applicant Suresh has moved the application for grant of bail being implicated in Crime No. 518/11 registered by police station Neemuch Cantt. District Neemuch for offence under sections 8/18 r/w 29 of NDPS Act. Counsel for the applicant has vehemently urged the fact that the applicant has been falsely implicated in the matter. He submitted that there is not an iota of evidence on record except a memo under section 27 of the Evidence Act of co-accused Balkishan and Omprakash. It was stated by the co-accused that the contraband weighing 10 kg of opium found in the Bolero Jeep was supplied to them by the present applicant Suresh and except this piece of evidence, there is nothing on record against the applicant. Moreover Counsel submitted that the investigation is complete and the applicant is not required for any other investigation. He candidly admitted that this is third application moved on behalf of the applicant and that there is one other case for offence under sections 376, 366 and 366/34 of the IPC registered against the applicant. He had been convicted and sentenced to three years RI; however, the criminal appeal is pending before this Court. More importantly counsel urged the fact that the conviction cannot be based on the statement of co-accused under section 27 of the Evidence Act. It is only a corroborative peace of evidence and relying on several cases, counsel submitted that the facts disclosed under section 27 of the Evidence Act can be used only against the person making disclosure and not against any other person. Similarly he submitted that section 67 of the NDPS Act was also different from section 27 of the Evidence Act and only an authorised officer under the provisions of section 42 of the NDPS Act during the course of any enquiry in connection with the contravention of the provisions of the NDPS Act with intention to collect the information and if any person voluntary intending to give confessional statement may record the same and if ultimately it is found that the confessional statement was recorded voluntarily by the person concerned, then that statement is admissible in evidence and can be used for the person making the same. However, counsel urged that even such a statement under section 67 of the NDPS Act, is not admissible and in the present case co-accused persons have implicated the applicant; then there can be no conviction of that person only on the basis of their statement. He relied on KANHAIYALAL V/S UNION OF INDIA, 2008 4 SCC 668 and RAJU PREMJI; ARUN KANUNGO V/S CUSTOMS NER SHILLONG UNIT; D PAKYNTEIN, 2009 16 SCC 496. He also relied on Sharif v. State,1997 2 MPWN 173, Gotulal v. State [Criminal Revision No. 650/02], Sadique v. State [Criminal Revision No. 383/03], and Kanhaiyalal v. State [Criminal Revision No. 652/2000] to bolster his submissions. Besides he produced a list of cases in which the applicant accused solely on the basis of memo prepared under section 27 of the Evidence Act was granted bail by the Court in several cases i.e. Miscellaneous Criminal Case No. 6722/12 (Prahlad v. State of M.P.), Miscellaneous Criminal Case No. 156/13 (Kailash v. State of M.P.), Miscellaneous Criminal Case No. 1571/13 (Shivlal v. State of M.P.) Miscellaneous Criminal Case No. 154/13 (Bhagwatilal v. State of M.P.), Miscellaneous Criminal Case No. 6556/13 (Dilip Singh v. State of M.P.), Miscellaneous Criminal Case No. 711/13 (Vinod Singh v. State of M.P.) and Miscellaneous Criminal Case No. 4850/13 (Bhopalsingh v. State of M.P.). Counsel prayed for grant of bail since the applicant has been arrested on 22.7.2012.

(2.) Counsel for the respondent State per contra has opposed the contentions put forth by the counsel for the applicant and categorically stated that the accused has already been convicted for another offence and does not deserve any sympathy. Besides more than the commercial quantity of the contraband as prescribed under the provisions of the NDPS Act i.e. contraband opium weighing 10 kg. was seized from the possession of co-accused Balkishan and Omprakash and although their memos have been prepared under section 27 of the Evidence Act, the case of the petitioner being supplier is hit by section 37 of the NDPS Act which bars grant of bail to the accused since more than commercial quantity of contraband opium has been recovered. Besides section 67 of the NDPS Act empower the officers when read with section 42 of the NDPS Act and such statements are admissible in evidence. Counsel prayed for dismissal of the application primarily on the grounds that looking to the gravity of the offence and the bar under section 37 of the NDPS Act. He urged that the application is without merit.

(3.) On considering the above submissions, and looking to the materials available in the case diary, I find that bail cannot be allowed to the present applicant. However, dealing with the controversy raised regarding the admissibility of the statements under section 27 of the Evidence Act recorded first; I find that unless it is established that the statements were obtained by the officers by subjecting the accused to coercion or procured under duress the statements are admissible in evidence under section 67 read with section 42 of the NDPS Act.