O.B. Exh.

CRI.BAILAPPLN.NO.326/16

ORDERBELOWEXH.1INCRI.BAILAPPLN.NO.
326/16
1]

Thisapplicationisfiledbyapplicantforgrantof

bailundersection439ofCr.P.C.onthegroundsthatapplicant
wasarrestedinconnectionwithcrimeregisteredbyZonalUnit
of Narcotic Control Bureau, Mumbai under section 8(c), 23,
28,29ofNDPSAct,1985anditisthecaseoftheprosecution
againsttheapplicantthatapplicantaccusedisinvolvedinthe
matter as per statement under section 67 of accused
Pramodkumar Pande and was further alleged that
Pramodkumar Pande used to send contraband such as
Alprzolam,Diazepam,Xoltetc.toapplicantforillicitbusiness
of contraband. According to applicant bankaccountsof the
present applicant were freezed by NCB office and being
aggrievedbythesaidfreezingorderapplicantapproachedthe
courtandcourtvideorderdated27.07.2015waspleadedto
defreezetheaccountswiththeobservationsthatprocedurewas
notfollowedanditisdifficulttoacceptthatsomeamountwas
lyingintheaccountforalmostperiodofsixmonthsorsotouse
thatamountforthepurchaseofcontraband.Hence,according
to the applicant except statement of accused Pramodkumar
Pande there is absolutely nothing on record to connect the
presentapplicantwiththecrime.
2]

According to applicant accused, he was taken in

custody in 25.01.2016 and since then is in judicial custody.

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CRI.BAILAPPLN.NO.326/16

According to accused he himself has made complaint of

illtreatmentanduseofthirddegreemethodforobtaininghis
statementbeforethecourtandthereafterhewassentforcivil
hospitalformedicalcheckupandthereaftersincethenheisin
judicialcustody.Accordingtotheapplicanthehasbeenfalsely
implicated in the matter and at the relevant time of alleged
incidentaccusedwasnotevenpresentorwasnotevenshown
aswantedorabscondingaccused. Accordingtotheapplicant
nocontrabandwasseizedattheinstanceofaccusedandthere
are no allegations of possessing any contraband against
accused. Hence, according to the applicant, except the
statement made by accused Pramodkumar Pande there is
nothing on record to connect the applicant with the present
crime.Accordingtotheapplicant,hepossessahotelatPatna
which is under construction and the brother of accused
Pramodkumar Pande viz. VikashPandeyishisemployee and
the fatherofVikash Pande wasundergoingtreatment.Ashe
wasshiftedtoMumbaiforfurthertreatment,wasinneedof
money. Hence, Mr. Vikash has requested the accused for
monetaryhelpandaccusedhasprovidedmonetaryhelptohim.
According to applicant amount transferred in the amount of
Vikash Pande for the treatment of his father and there are
documents of the hospital to show that it was for ongoing
treatment. Accordingtotheapplicantthesamebankaccount
wasfreezedbyNCBofficewhichwasdefreezedbythiscourton
theaforesaidobservation. Hence,accordingtotheapplicant
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CRI.BAILAPPLN.NO.326/16

his detention is unauthorized and the allegations of the

prosecution are unfounded. Applicant amongst the other
groundhasthereforerequestedtoreleasehimonbail.
3]

SayofNCBwascalledforandNCBofficershasfiled

detailsaybelowExh.4therebyobjectingtheapplicationonthe
ground that accused arrested on the basis of statement
recordedundersection67ofNDPSActofPramodkumarPande
statingthereinthatPramodkumarusedtosendcontrabandon
theorderoftheapplicantaccusedwhothoughIndianNational
is resident of Philippines. According to learned Special
Prosecutor,applicantwasdetainedatKolkattawhilereturning
toIndiafromPhilippinesandthenhewasshownarrestedin
thecrime. AccordingtolearnedP.P.on17.01.2016statement
undersection67oftheActwasrecordedandtheapplicantwas
placed under arrest at 09.00 hours at 18.01.2016 under
provisionsofNDPSAct.AccordingtolearnedP.P.applicantwas
neversubjectedtoanythirddegreemethod.Accordingtothe
submissions,applicantaccusedisinvolvedindistributionofthe
contrabandalongwithhisassociatePramodkumarPandeand
hasspreadhisnetworkofdistributionintheinternationalarea.
According to the submissions applicant was conducting
financialtransactionwithPramodkumarPandeforthepurposes
ofsendingmoneyformedicallypurposesistotallyuntruebut
the financial transaction at the regular interval with
Pramodkumarwasforthepurposesofsupplyofpsychotropic
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CRI.BAILAPPLN.NO.326/16

substance. According to learned P.P. statement of applicant

under section 67 of NDPS Act compressively mentions his
involvement in distribution of contraband to various
destinationsinUnitedStatesandmodusoperandiemployedto
hisnetworkforthepurposesofdrugtraffickingisadmittedin
the statement. According to the submissions accused
Pramodkumar has identified present accused during
identificationparadewhenphotographofapplicantwasshown
tohim.Accordingtothesubmissionsiftheapplicantisgranted
bailatthispreliminarystageofinvestigationthatwillcertainly
hampersinvestigationandbesideithastobeborneinmind
that applicant has his base in Philippines and there is every
possibility of applicant absconding and leaving country and
fleeingfromjustice. Hence,bythesaidreplySpecialP.P.has
requestedtorejecttheapplication.
Thane
Date:07.04.2016
4]

(HemantM.Patwardhan)
D.J.6&Addl.SessionsJudge,

Thane

Heard rival advocates. Perused various remand

reports by which present accused was apprehended and

detained by NCB office. On perusal of said document it is
apparent on the face of record that though accused was
apprehended in connection witholdcrime registeredagainst
Pramodkumar Pande and his associates who were arrested
either with him or later on were already facing trial on a
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CRI.BAILAPPLN.NO.326/16

complaint lodged by concern intelligence officer. In that

particular complaint the accused name has appeared as the
person who has provided amount for purchase of the
contrabandthroughthebankers.Exceptthesaidallegationthe
intelligence officer was not able to show any direct link
connecting with the present applicant to his other associate
accused.Areferenceofaccusedbeingarrestedonthebasisof
statement of Pramodkumar Pande has been made. During
courseofreplytheobjectionfiledbyNarcoticControlBureau,
Mumbaiismainlyrestuponstatementundersection67either
of the accused himself or by the associate accused Mr.
PramodkumarPande.Ontheotherhanditisthegroundofthe
applicationthattheaccusedwasforcedtogivestatementsoas
tosuitecaseofNCBoffice.Hence,requesthasbeenmadeto
considerbailapplication.
5]

In the present matter applicant has put forth the

groundsthathisstatement,whenitwasrecordedundersection
67 of the NDPS Act he was compelled and forced to give
incriminatingstatementandhehasalreadyfiledRetractionof
it.Accordingtohim,exceptthestatementoftheapplicantand
the coaccused there is absolutely nothing on record to
implicatehiminthepresentmatter.Accordingtotheground's
nothing was seized from his person or from anything which
wasinhispossessionattherelevanttimetoconnecthimwith
thesaidcrime.LearnedSpecialProsecutorhasthereforerelied
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CRI.BAILAPPLN.NO.326/16

upon the Judgment of Hon'ble Apex Court in case of

KanhaiyalalV/s.UnionofIndiawhereinithasbeenobserved
bytheirLordshipthatstatementbyaccusedundersection67is
notsameasstatementundersection161ofCr.P.C.andcanbe
usedasconfessionagainsthimmoresoifitiscorroboratedby
otherevidence. ExcepttheparticularfacttheNCBofficehas
notputforthanycorroboratingevidencewhichindicatesthat
applicantwasreallyrelatedwiththeparticularcrime.
6]

Admittedly,inthepresentmatternothingwasseized

either from the person of accused or at his instance at the

relevanttimewhenhewasarrested. Reliancewasplacedon
the statement of the accused himself and coaccused which
allegedly state various facts involving the applicant in the
particularcrime.However,ifweconsiderthelawlaiddownby
ApexCourtincaserelieduponbytheapplicantaccusedincase
of FrancisStanly@StalinV/s.IntelligenceOfficer,Narcotic
ControlBureau,Thiruvananthapuramthenitappearsthattheir
Lordship have held that confessional statement of the
coaccusedcannotbeagroundofconvictionparticularlywhen
no other evidence was made available against him. In the
instant case also except the statement under 67 of the Act
eitheroftheapplicantorcoaccusedtherearenoallegationsof
NCBofficethatapplicantwasreallyfoundinpossessionofany
Narcoticdrug.

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7]

CRI.BAILAPPLN.NO.326/16

Hence,asondateitselfexceptstatementrecorded

undersection67oftheAct,theNCBofficerhasnowhereput
forthanyotherincriminatingcircumstancesorfactstoprima
facieimplicatetheapplicantinthematter. IncaseofTofan
SinghV/s.StateofTamilNadu, 2014(1)SCJ493 thatHon'ble
ApexCourthasreferredthemattertolargerbenchtodecide
whether the said statement recorded under section 67 can
really be treated as Confessional Statement as under section
161ofCr.P.C.andinthesamematterhasheldthatmereonthe
basis of such statement without any corroborative evidence,
accusedcannotbeconvicted.Hence,ifthesaidlatestviewof
theApexCourtisconsidered,thenprimafacieasondateof
statement of coaccused or present accused is not certainly
primafaciesufficienttoimplicatehimwiththetransportation
orpossessionofdrugs.
8]

Onfurtherperusalofsection54thereappearsto

bepresumptionforpossessionofillicitarticlesandprovision
itself lays down that in trials under this Act, it may be
presumed,unlessanduntilthecontraryisproved,accusedhas
committed an offence under this Act for the possession of
which he fails toaccountsatisfactory.Therefore,evenin the
presumption under section 54 of the Act it appears that
presumption of illicit articles including articles referred in
section54wereofmaterialimportancesofarastrialinthe
matterisconcerned.However,asstatedbytheapplicantinhis
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CRI.BAILAPPLN.NO.326/16

applicationthereappearstobeabsolutelynorecoveryeitherat
hisinstanceorfromhisperson. Therefore,thepresumption
also primafacie cannot be madeapplicable in the particular
case.Hence,exceptthestatementofcoaccusedthereappears
tobenomaterialonrecordwhichreallyrelatestheapplicantto
thepresentcrime.
9]

Fromtheaforesaidfactsinmyopinionexplanation

reasonablegroundswhichnowherehasbeendefinedinthe
Act has been properly established on record to prima facie
cometotheconclusionthatimplicationoftheaccusedinthe
particularcrimeprimafacieisagainsttheprovisionsofsection
67 and 54 of the Act. Having regards to these facts in my
opinionassaidfactsaresufficienttosayabouttheprimafacie
consideration of the fact that involvement of the accused is
doubtful and considering the fact that he is in jail since his
arrestin18.01.2015inmyopinionreliefofbailcanbegranted
tohim.
10]

Further accused nos. 3 and 4 as referred by the

applicantwerereleasedonbailonthegroundthattheywere
alsonotpossessinganysuchcontrabandasallegedbytheNCB
officer. Hence, on the groundofparityalsothecase ofthe
applicantstandsonthebetterfootingthanthatoftheaccused
nos. 3 and 4. Having regards to these facts in my opinion
applicant deserves to the relief claimed by him. However,
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CRI.BAILAPPLN.NO.326/16

considering the apprehension of the NCB officers some

stringentconditionsarerequiretobeimposedwhilegranting
bailtohim.Withthesaidobservation,theorder.
ORDER
1]

ApplicationofaccusedKrishanmbujKumaris
allowed.

2]

HebereleasedonbailonhisexecutingP.R.&S.B.
ofRs.50,000/withoneortwosolventsuretyinthe
likeamount.

3]

Applicantaccusedshallnotleavejurisdictionofthis
courtwithoutpriorpermission.

4]

ApplicantaccusedshallattendNCBofficetwiceina
monthonevery1stand3rdMondayanytime
between10.00a.m.to5.00p.m.andshallnotmake
anyattemptstotamperwiththeprosecution
evidence.

5]

Heisfurtherdirectedtoattendthiscourtregularly
ondatefixforhearing.

6]

Accusedisdirectedtoproducehisaddressproof
andphotoidentityalongwithhiscloseblood
relativesonrecord.

7]

Informpassportauthorityaboutconditionno.3and
pendencyofthematter.

8]

Applicationisaccordinglyallowed.

Thane
Date:18.04.2016

(HemantM.Patwardhan)
D.J.6&Addl.SessionsJudge,

Thane
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