Patna High Court – Orders
Guddu Kumar @ Guddu Bhaiya vs The Union Of India Through Narcotics … on 5 March, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.15597 of 2025
Arising Out of PS. Case No.-12 Year-2021 Thana- N.C.B (GOVERNMENT OFFICIAL)
District- Patna
======================================================
Guddu Kumar @ Guddu Bhaiya, Son of Suraj Narayan Paswan Mohalla-
Vishnupuri, Ambedkar Chowk,,Purani Bhatti, P.S. - Gardanibagh, District
-Patna
... ... Petitioner
Versus
The Union of India Through Narcotics Control Bureau, Patna Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioner : Mr. Madhukar Anand, Advocate.
Mr. Shubham Kumar Singh, APP
For the Union of India (NCB) : Mr. Ram Anurag Singh, CGC
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL ORDER
2 05-03-2025
Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner seeks bail in connection with Special
Case No. 173 of 2023/53A of 2021 arising out of NCB Crime
No. 12 of 2021 dated 04.06.2021, registered for the offences
punishable under Sections 8(c) read with Sections 21(c), 25 and
29 of N.D.P.S. Act, 1985.
3. As per allegation, 710 grams brown coloured
substance appearing to be Morphine was recovered from the
house of co-accused Sunni Kumar where, besides Sunni
Kumar, Munna Ravidas and Raju Prasad were also present and
all of them were arrested and as per confessional statements of
Patna High Court CR. MISC. No.15597 of 2025(2) dt.05-03-2025
2/9
co-accused Sunni Kumar, Munna Ravidas and Raju Prasad, the
names of co-accused Mithlesh Kumar and Rahul Samrat
transpired and in the confessional statement of Mithlesh Kumar
as recorded under Section 67 of the NDPS Act, the name of the
present petitioner transpired as Supplier of the contraband to the
co-accused. It has also come in the confessional Statement of
co-accused Rahul Kumar @ Samrat that he used to deposit
money in the account of the petitioner. However, there is no
allegation of recovery of any contraband from the possession of
the petitioner.
4. Learned counsel for the petitioner submits that the
petitioner is innocent and has falsely been implicated in this
case on account of inadmissible material which can not be
converted into evidence during the trial. Even the claim of the
prosecution that co-accused Rahul Kumar @ Rahul Samrat used
to deposit money in the account of the petitioner is based on
confessional statement of the co-accused Rahul Kumar @ Rahul
Samrat which has no evidentiary value.
5. He further submits that the whole case against the
petitioner is based on the confessional statement of the co-
accused as recorded under Section 67 of the NDPS Act which is
not legally admissible and cannot be converted into evidence
Patna High Court CR. MISC. No.15597 of 2025(2) dt.05-03-2025
3/9
during the trial of the petitioner. Hence, his liberty is being
curtailed without any legal basis by detaining the petitioner for
about two years since 07.02.2023.
6. He also submits that aforesaid co-accused Rahul
Kumar @ Rahul Samrat has been already granted regular bail
by Hon’ble Apex Court vide order dated 11.09.2023 passed in
Cr. Appeal No. 2760 of 2023 whereas co-accused Rohit Kumar
has been granted bail by this Court vide order dated 03.11.2023
passed in Cr. Misc. No.72814 of 2023 and the co-accused
Mithilesh Kumar has been also enlarged on bail vide order dated
26.04.2024 passed by a coordinate Bench of this Court in Cr.
Misc. No. 71756 of 2023.
7. He also submits that though he has three criminal
antecedents, all the previous criminal cases are also based on
inadmissible material.
8. It is also stated in paragraph no. 2 of the bail
petition that the petitioner has earlier moved this Court for
regular bail and the same was rejected vide order dated
10.05.2024 passed in Cr. Misc. No. 15044 of 2024.
9. However, learned counsel for the Central
Government, Mr. Ram Anurag Singh, vehemently opposes the
prayer of the petitioner for bail submitting that the alleged
Patna High Court CR. MISC. No.15597 of 2025(2) dt.05-03-2025
4/9
offence is serious in nature and this name has transpired in the
confessional statement of the co-accused as recorded under
Section 67 of the NDPS Act.
10. He further submits that the petitioner is the king-
pin of the whole illegal trade of contraband and as per the
prosecution case emerging from the confessional statement of
the co-accused, there was a talk between the petitioner and the
co-accused, Sunni Kumar and Mithlesh Kumar and there is also
deposit of money by Rahul Kumar @ Rahul Samrat in the
account of the petitioner.
11. He also refers to Section 30 of the Evidence Act to
submit that confessional statement of co-accused is relevant and
admissible against the accused petitioner.
12. I considered the submission advanced by both the
parties and perused the material on record.
13. I find that the whole case of the prosecution is
based on confessional statement of co-accused as recorded
under Section 67 of the NDPS Act and the petitioner is the sole
accused in the present trial and the trial of the co-accused is
going on separately.
14. Here it would be pertinent to refer to Tofan Singh
Vs. State of T.N. 2021 (4) SCC 1 wherein Hon’ble Supreme
Patna High Court CR. MISC. No.15597 of 2025(2) dt.05-03-2025
5/9
Court has clearly held that the confessional statement of the
accused as recorded under Section 67 of the NDPS Act is not
admissible. Here it has been explained that the powers conferred
on the empowered officers under Section 41 and 42 of the
NDPS Act 1985 read with Section 67 of the NDPS Act 1985 are
limited in nature conferred for the purpose of entry, search,
seizure and arrest without warrant along with safeguards
enlisted thereof. The “enquiry” undertaken under the aforesaid
provisions may lead to initiation of an investigation or enquiry
by the officers empowered to do so either under Section 53 of
the NDPS Act 1985 or otherwise. Thus, the officers who are
invested with powers under Section 53 of the NDPS Act are
“police officers” within the meaning of Section 25 of the
Evidence Act, as a result of which any confessional statement
made to them would be barred under the provisions of Section
25 of the Evidence Act, and cannot be taken into account in
order to convict an accused under the NDPS Act.
15. In recent judgement of Najmunisha v. State of
Gujarat, 2024 SCC OnLine SC 520, AIRONLINE 2024 SC
306, Hon’ble Supreme Court has again held, relying upon Tofan
Singh Case (supra) that a statement recorded under Section 67
of the NDPS Act cannot be considered to convict an accused
Patna High Court CR. MISC. No.15597 of 2025(2) dt.05-03-2025
6/9
person under the NDPS Act 1985.
16. Here it would be also pertinent to refer to
Dipakbhai J. Patel Vs. State of Gujrat, (2021) 16 SCC 547.
Though this judgment has been delivered by Hon’ble Supreme
Court in the context of framing of charge, the observation made
herein is relevant even in the present context. Here, Hon’ble
Apex Court has held that the material on the basis of which
charge could be framed must be such material which could be
translated into evidence during the trial. The relevant part of the
judgment reads as follows:
“23. At the stage of framing the charge in accordance with
the principles which have been laid down by this Court,
what the court is expected to do is, it does not act as a
mere post office. The court must indeed sift the material
before it. The material to be sifted would be the material
which is produced and relied upon by the prosecution. The
sifting is not to be meticulous in the sense that the court
dons the mantle of the trial Judge hearing arguments after
the entire evidence has been adduced after a full-fledged
trial and the question is not whether the prosecution has
made out the case for the conviction of the accused. All
that is required is, the court must be satisfied that with the
materials available, a case is made out for the accused to
stand trial. A strong suspicion suffices. However, a strong
suspicion must be founded on some material. The material
must be such as can be translated into evidence at the
stage of trial. The strong suspicion cannot be the pure
subjective satisfaction based on the moral notions of the
Judge that here is a case where it is possible that the
accused has committed the offence. Strong suspicion must
be the suspicion which is premised on some material
which commends itself to the court as sufficient to
entertain the prima facie view that the accused has
committed the offence.”
(Emphasis supplied)
Patna High Court CR. MISC. No.15597 of 2025(2) dt.05-03-2025
7/9
17. Similar view has been expressed by Hon’ble
Supreme Court in Karan Talwar Vs. The State of Tamilnadu
(2024) SCC Online SC 3803, holding as follows relying upon
Dipakbhai J. Patel case (supra) :
“10. …………………….There is absolutely no
case that any recovery of contraband was recovered from
the appellant. As regards the confession statement of the
appellant in view of Section 25 of the Indian Evidence
Act, 1872 there can be no doubt with respect to the fact
that it is inadmissible in evidence. In this context it is
worthy to refer to the decision of this Court in Ram Singh
v. Central Bureau of Narcotics, (2011) 11 SCC 347. In
the said decision, this Court held that Section 25 of the
Indian Evidence Act would make confessional statement
of accused before police inadmissible in evidence and it
could not be brought on record by prosecution to obtain
conviction. Shortly stated, except the confessional
statement of co-accused No. 1 there is absolutely no
material available on record against the appellant.
………………………………………………………….
12. As noted hereinbefore, the sole material
available against the appellant is the confession statement
of the co-accused viz., accused No. 1, which undoubtedly
cannot translate into admissible evidence at the stage of
trial and against the appellant. When that be the position,
how can it be said that a prima facie case is made out to
make the appellant to stand the trial. There can be no
doubt with respect to the position that standing the trial is
an ordeal and, therefore, in a case where there is no
material at all which could be translated into evidence at
the trial stage it would be a miscarriage of justice to make
the person concerned to stand the trial.”
(Emphasis supplied)
18. Even reference to and reliance of learned APP
upon Section 30 of the Evidence Act does not help the
prosecution. A careful reading of Section 30 shows that even as per
Section 30, only legally admissible confession of the co-accused is
Patna High Court CR. MISC. No.15597 of 2025(2) dt.05-03-2025
8/9
relevant and admissible against the accused, because the condition
precedent for making the confessional statement of the co-accused
relevant against accused is that there should be not only a joint trial
of the accused along with the co-accused, even the confessional
statement should be such which could be proved in the trial. Needless
to say that inadmissible confession cannot be proved during the trial.
As such, confession as referred to in Section 30 of the Evidence Act
means only admissible confession and not such confession which is
hit by Section 25 of the Evidence Act.
19. In view of the aforesaid facts and circumstances, I
find that the prosecution case against the petitioner is based only
on inadmissible material which could not be translated into
evidence against the accused/petitioner during his trial. Hence, it
would be travesty of justice to curtail the liberty of the
accused/petitioner under such facts and circumstances.
20. Accordingly, this application is allowed,
directing the petitioner, above-named, to be enlarged on bail on
his furnishing bail bonds in the sum of Rs. 10,000 /- (Ten
Thousand) with two sureties of the like amount each to the
satisfaction of learned Exclusive Special Judge, NDPS Act,
Court No.01, Patna, in connection with Special Case No. 173 of
2023/53A of 2021 arising out of NCB Crime No. 12 of 2021, on
the following conditions:
Patna High Court CR. MISC. No.15597 of 2025(2) dt.05-03-2025
9/9
(i) The petitioner will make himself available for
interrogation by a police officer/court as and when required.
(ii) The petitioner will undertake that
investigation/trial will not get hampered on account of his
absence or non-cooperation. He must be available to the police
or the court whenever his presence is required.
(iii) The petitioner shall not, directly or indirectly
make any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the court or to any police officer.
(iv) In case, it is brought to the notice of the court
below that the petitioner has criminal antecedents other than the
disclosed one, learned court below shall cancel the bail bonds of
the petitioner after hearing him and getting satisfied that the
petitioner has concealed his criminal antecedents despite his
knowledge of the same.
(v) In case, it is brought to the notice of the court
below that statement regarding previous bail petition is wrong,
learned court below shall cancel the bail bonds of the petitioner.
(Jitendra Kumar, J)
S.Ali/-
U T
[ad_1]
Source link