JUDGMENT
Rajendra Saxena, J.
1. Heard. Perused the challan papers.
2. It appears that on receipt of a written secret information, Superintendent, Customs, Range Ramgarh issued a search warrant and in compliance thereof Shri S.K. Khatri, Customs Inspector made a search of the house of Mangal Singh, resident of village Netsi in presence of motbirs and other Customs Department officials. It is alleged that a bag containing 10 packets was recovered therefrom. The contents of those packets were tested by the drug detection kit and it was found that those packets contained heroin weighing 10.175 Kg. The samples were taken from those packets and those were seized and sent to the Government Opium & Alkaloid Works, Neemuch and also to the Central Revenues Control Laboratory, New Delhi for chemical analysis. Statement of Mangal Singh was recorded Under Section 67 N.D.P.S. Act and Under Section 108 Customs Act, who denied his knowledge about the heroin, but stated that the said bag containing those packet was stored by one Hazi son of Mando resident of village Kujalari, Distt., Jaisalmer 2-3 days before the alleged recovery. Mangal Singh was found to be a disabled person. During investigation, it transpired that the said contraband article was supplied by co-accused Hazi at the Indo Pak border and that same was kept by his father Mando in the house of Mangal Singh. The statements of Mando & Khamisha were also recorded Under Section 67 of the N.D.P.S. Act. The statement of petitioner- Talab Khan was also recorded on 7.2.94 Under Section 67 of the N.D.P.S. Act read with section 108 of the Customs Act, wherein he specifically admitted that Hazi’s father Mando had assured him to pay an amount of Rs. 1500/- for keeping those packets of heroin, which Hazi had imported from Pakistan. He also admitted that Hazi had handed him over a plastic bag containing 10 packets of heroin and asked him to deliver that consignment to his father Mando. The petitioner in his statement further admitted that he had concealed that plastic bag in his ‘Gol’ (dhani) and handed over the same to Mando next day. He further stated that on 30.1.94 he had also accompained Mando, who had gone to the house of Mangal Singh in village Netsi and placed that consignment there. He also stated that when Mangal Singh inquired as to who he was, Mando had told him that he was ‘Hazi’.
3. The contention of Shri Khatri is that the petitioner has retracted his alleged statement recorded Under Section 67 N.D.P.S. Act in the court, that there is not a fringe of evidence connecting the petitioner with any offence punishable under the provisions of the N.D.P.S. Act. His another contention is that as per chemical analysis report dated 18.3.94 of the Government Opium & Alkaloid Works, Neemuch after qualatative & quantative analysis the contents of the samples sent to it were found to be opium derivatives i.e. Diacetyl morphine within the meaning of section 2(xvi) of N.D.P.S. Act, 1985, whereas the report of the chemical examiner of the Central Revenues Control Laboratory, New Delhi dated 16.3.94 discloses that each of the two samples sent to it did’ not answer positive test for diacetyl morphine, but those were positive for Benzo diazepines (diazepam), Barbiturates (Pheno bonbital) and Phenolphthalein. Thus, according to him the findings of the two chemical examiners’s report are divergent. He has, therefore, prayed that the petitioner be released on bail.
4. On the other hand, Shri U.S. Bhargava, the learned Standing Counsel for the Union of India has vehemently opposed this bail petition on the ground that the learned Special Judge after hearing the arguments of the parties has framed the charge against the petitioner for the offence Under Section 21 & 22 N.D.P.S. Act, 1985, that at this stage, the statements of the petitioner and other persons recorded Under Section 67 of the N.D.P.S. Act can not be brushed aside and ignored. According to him as per chemical reports from Neemuch and New Delhi Laboratories the contents of the seized packets contained narcotic & psycho tropic substances.
5. Shri Khatri has relied on the case of Arvind Mehram Patel v. Intelligence Officer, Narcotics Control Bureau, Bombay reported in 1991 (2) Excise & Food Adulteration Reports-440. In that case, the accused persons were illegally detained and assaulted and thereafter their statements were recorded in the form of confessions Under Section 67 of the N.D.P.S. Act. Those statements were subsequently retracted. It was held by the Bombay High Court that those statements could not be made basis for fair trial and granted bail. But such are not the facts of the case in hand. There is no allegation that the petitioner was illegally detained and assaulted and that their statements were recorded under duress. In Arvind Mehram Patel’s case (supra), it has also been clearly held that the statements recorded Under Section 67 of the N.D.P.S. Act are admissible in evidence, but if such statements are procured by illegal detention of the accused as long as for four days without the authority of the court and the accused were subjected to assault and third degree menthods, then such a statement will not be voluntary and the same can not be made basis for trial. At this stage while deciding this bail petition, I do not feel inclined to comment as to whether the statement of the petitioner Under Section 67 N.D.P.S. Act was recorded by employing threat or illegal methods.
6. Shri Khatri has also relied upon the case of Gurbax Bhiryant v. Narcotic Control Bureau, reported in 1993 (1) E.F.R.- 465. In that case the accused was facing trial for offence Under Sections 23 & 29 of the Act, 1985 and there was a charge of conspiracy and abetment of export of heroin from India. The charge was based on confessional statements of the accused person, which were retracted immediately. Co-accused persons were also granted bail. In such circumstances the Delhi High Court granted bail to the accused-petitioner. Evidently the facts of Gurbax’s case are at poles apart from the facts of the case in hand.
7. A large quantity of contraband article is alleged to have been recovered from the house of an invalid person, which was placed/concealed there by co-accused Hazi with whom the present petitioner had also accompained. The petitioner is alleged to have received the consignment of contraband articles from co-accused Hazi, who imported the same from Pakistan.
8. Therefore, keeping in view all the facts & circumstances of this case, I do not find valid and sufficient ground to believe that the petitioner has not committed any offence punishable under the N.D.P.S. Act, 1985 and that he is not likely to commit such offence in future. Hence, to my mind, it is not at all a fit case wherein the petitioner should be granted bail. Accordingly this bail petition stands dismissed.