The Bombay High Court while granting bail in a 191 kg heroine haul case has observed that Clearing Agent or a person who is facilitating the agent to clear the consignment is not supposed to know an exact material which is found in the said consignment though bills required to be mentioned about it.

The Court was considering a bail application filed by a man who was working as a Clearing Agent and was made an accused in a drug seizure case.

The single-bench of Justice Bharat P. Deshpande observed, "The Clearing Agent or a person who is facilitating the agent to clear the consignment is not supposed to know an exact material which is found in the said consignment though such bills required to be mentioned about it. Admittedly such consignment was received from a foreign country and it requires customs clearance since the customs authorities suspected some foul play, they alerted the DRI and accordingly raid was conducted."

The Applicant was represented by Advocate Dr. Sujay Kantawala while the Respondent was represented by Advocate Thakker Ruju.

The Counsel for the applicant submitted that he was working as a Clearing Agent and was related to Accused No. 1. and was only helping the latter in clearing some consignment. However, he had no connection at all with respect to the drugs which are found in the said consignment. He submitted that the Accused No.2 is alleged to have transported the said drugs and thus except the statements recorded under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985, there is no corroborative material to implicate present Applicant with the said offence. He further submitted that the progress of the trial is sluggish and the applicant has been in custody for considerable period of three years.

He also submitted that Applicant is having a right to a speedy trial and if such right is denied to him, rigors of Section- 37 of the NDPS Act cannot be made applicable.

On the other hand, Special PP submitted that statement of Accused No. 1 was recorded under Section 67 of NDPS Act and role of present Applicant was revealed. He was accordingly summoned and was summoned and his statement was recorded and his involvement was found along with Accused No.1 and other Accused persons.

As far as confessional portion recorded under Section 67 of the NDPS Act was concerned, the court cited the settled legal position through Supreme Court's judgement in Toofan Singh Vs. State of Tamilnadu wherein it was submitted that statement under Section 67 of NDPS Act cannot be used as confessional statement in the trial of an offence under the provisions of the NDPS Act since 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 and as a result of which any confessional statement made to such police officer would be barred under the provisions of Section 25 of the Evidence Act and cannot be taken into account in any inquiry or trial.

"Thus it is clear that any statement of the present Applicant recorded under Section 67 of the NDPS Act cannot be used against him as confession or admission as the case may be for the purpose of trial. Similarly, statements of other Accused persons recorded under Section 67 of the NDPS Act, also cannot be used against the Applicant," the Court observed.

The Court further noted that sending the documents of a consignment for clearance to Accused No.1 through WhatsApp chat cannot be suspected as tried to be canvassed on behalf of Respondents since the Applicant was Acting as Clearing Agent, he was bound to receive his fees for the purpose of clearing of the consignment.

"The transactions which have been pointed out on behalf of the respondent are only with regard to charge of fees with regard to clearance of the consignment. Such amounts are only in few thousand and not having any suspicion with regard to the contention of dealing in drugs," the court observed.

The Court also stressed that a Clearing Agent or a person who is facilitating the agent to clear the consignment is not supposed to know an exact material which is found in it.

"Applicant was not present when the consignment was opened and search was carried out. It was Accused No.1, who was present during the search of the said consignment and he was responsible for clearing the said consignment though claimed for and on behalf of Accused Nos.2 and 4. Thus the material which has been collected by the complainant qua the present Applicant is not enough to sufficiently corroborating the case and existence of the call details and forwarding of the bills to Accused No.1 cannot be considered as presumption of the knowledge of the Applicant about the drugs concealed in the said consignment," the Court observed.

The Court also pointed out there is no corroborative evidence to substantiate the avernments in his statement so as to detain him further.

The Application was accordingly allowed.

Cause Title: Kondiba Gunjal vs. The Union of India (2024:BHC-AS:45480)

Appearances:

Petitioner- Advocate Dr. Sujay Kantawala, Advocate Karan Jain, Advocate Agastya Desai

Respondent- Advocate Thakker Ruju, Advocate Priyanshi Doshi, APP C. D. Mali

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Bombay High CourtCustoms ActBailBail PetitionDrugs Case

Sheetal Joon