NCB Officers Are Police Officers U/S 25 Of Evidence Act, Confessional Statement Made To Them U/S 67 NDPS Act Inadmissible: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court recently held that the officers of the Narcotics Control Bureau are police officers within the meaning of Section 25 of the Evidence Act. Having held so, Justice Mohan Lal noted that a confessional statement recorded under Section 67 of the NDPS Act would remain inadmissible in the trial for an offence under the NDPS Act.

The petitioner had moved an appeal under Section 439 of the Code of Criminal Procedure seeking bail in a case for the commission of offences under Sections 8/20/29 of the Narcotics Drugs and Psychotropic Substances Act. It was averred that there is no evidence against the petitioner in the whole of the complaint. Moreover, the trial is pending in the court of Sessions Judge, whereby the petitioner is entitled to be admitted to bail by way of the law laid down by the apex court in Toofan Singh v. State of Tamil Nadu.

Advocate M.A. Bhat, appearing for the petitioners argued for bail and submitted that the petitioner is implicated in the case merely based on the confessional statement of the co-accused and on his confession under Section 67 of NDPS Act as there is no other evidence to substantiate allegations against the petitioner. Moreover, as per the rationale in Toofan Singh's Case, the statement under Section 67 of NDPS Act is hit by the provisions of section 25 of Evidence Act, and the said confessions cannot be used as evidence against the co-accused. Once the material of confessional statements relied upon the prosecution cannot be translated into evidence no charge can be framed against accused.

Additional Solicitor General of India, Vishal Sharma, opposed by arguing that the offense committed is very heinous and against society at large and involves harsh punishment; therefore, to restore the general public's confidence in the administration of the justice system, the present bail application deserves to be dismissed. It was also contended that an individual's liberty is subject to reasonable exceptions. In the present case, the petitioner is guilty of offences under the NDPS Act and has been found in possession of a commercial quantity of Narcotics contraband and therefore does not deserve any leniency in granting him any liberty; thus, the bail application deserves to be dismissed/rejected.

The Court discussed the precedent set by the apex court in Toofan Singh, where it discussed Section 67 of the NDPS Act and held that a statement recorded under section 67 of the NDPS Act could not be used as a confessional statement in the trial of an offence under the NDPS Act.

The Court noted that the CDR details of the accused would be examined at the stage of a trial. If no recovery of commercial quantity of contraband is effected, the rigor of Section 37 of the NDPS Act will not be applicable, and the accused will be entitled to bail.

Case Title: Ghulam Mohd Bhat v. Narcotics Control Bureau

Citation: 2022 LiveLaw (JK) 33

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