Page No.# 1/7 GAHC010022062025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./302/2025 P. SOUL AND 2 ORS. SON OF PHIZU, RESIDENT OF VILL TAPHOU NAGA, P.S. - P.O. SENAPATI, DISTRICT SENAPATI, MANIPUR - 795106. 2: P. MARAIPA S/O PHIZU R/O VILL-TAPHOU NAGA P.S. AND P.O. SENAPATI DIST.SENAPATI MANIPUR-795106 3: SAHIL GURUNG S/O PRAKASH GURUNG R/O VILL-TAPHOU NAGA P.S. AND P.O. SENAPATI DIST.SENAPATI MANIPUR-79510 VERSUS THE UNION OF INDIA (REPRESENTED BY THE STANDING COUNSEL, DRI Advocate for the Petitioner : MR. A M BORA, MS. C CHOUDHURY,MR. V A CHOWDHURY,MR. D GAGAI Advocate for the Respondent : SC, DRI, Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 13.03.2025 1. Heard Mr. A. M. Bora, learned senior counsel assisted by Mr. V. A. Chowdhury, learned counsel for the petitioners. Also heard Mr. S. C. Keyal, learned standing counsel for the DRI. 2. This application under Section 483 has been filed by the petitioners, namely, 1. P. Soul, 2. P. Maraipa and 3. Sahil Gurung, who are detained behind the bars since 14.12.2024 (for last 88 days) in connection with DRI Case No. 21/CL/NDPS/HEROIN/DRI/GZU/2024-25 registered under Sections 8(c)/21(c)/22(c)/23(c)/25 of the NDPS Act, 1985. 3. The gist of accusation in this case is that on 13.12.2024, on receipt of an information through reliable sources by the Officers of DRI Guwahati Zonal Unit that a truck bearing Registration No. AS-25-EC-3517 carrying two male persons and closely escorted by one white colour Toyota Fortuner car bearing Registration No. UK-07-BS-0189 carrying two male persons and one female person are coming from Jorabat side, a team of DRI officers were constituted and a search operation was conducted. The search team intercepted one Tata truck bearing Registration No. AS-25-EC-3517, where the person sitting in the front cabin of the said truck was identified as P. Soul (petitioner No. 1) in this case as well as one Sailash Sephen, who is the driver of the said truck. The search team also intercepted one Toyota Fortuner car bearing Registration No. UK-07-BS-0189 and the occupant of the said vehicle were identified as Sahil Gurung, Pretty Thoitak and P. Maraipa. 4. During interrogation of the occupants of the vehicle, Sailash Sephen Page No.# 3/7 i.e., the driver of the said truck and Ms. Pretty Thoitak revealed that there are 274 numbers of soap cases concealed in specially built cavity/chamber in the driver's cabin of the said truck. 5. Accordingly, a search was conducted and 274 soap cases containing about 3180.83 grams of suspected heroin was seized. 6. The learned senior counsel for the petitioners has submitted that the petitioner No. 1 was travelling in the truck from where the contraband was seized. However, petitioner Nos. 2 and 3 were travelling in the Toyota Fortuner car from where nothing was seized. He further submits that the complaint filed by DRI would reveal that the driver of the truck as well as one of the female occupant of the vehicle revealed regarding concealing of the seized contraband in secret chambers in the cabin of the truck and they have not implicated the present petitioners in any manner. 7. The learned senior counsel for the petitioners has submitted that the petitioners were unaware about the fact that the truck which was seized in this case was carrying contraband in hidden chambers. 8. The learned senior counsel for the petitioners further submits that as the petitioners were unaware about the fact of carrying contraband in hidden chambers, they were neither in constructive possession nor in conscious position of the contraband seized in this case, hence, there is reasonable ground to believe that they are not guilty of the offence alleged in the complaint petition filed by the DRI. He further submits that in the complaint filed by DRI, there is no accusation regarding the conscious possession of the present petitioners of the seized contraband. He, therefore, submits that the petitioners are entitled to get bail in this case. Page No.# 4/7 9. The learned senior counsel for the petitioners has submitted that only material which might be there against the petitioners may be the statement of the apprehended accused persons recorded under Section 67 of the NDPS Act, 1985 which he submits that cannot be used against the petitioners in view of the decision of Tofan Singh –Vs- State of Tamil Nadu” reported in “(2021) 4 SCC 1”. 10. On the other hand, Mr. S. C. Keyal, learned standing counsel for the DRI has vehemently opposed the grant of bail to the present petitioners on the ground that the seized contraband was recovered from the conscious possession of the present petitioners as apparent from the seizure list where all the petitioners have put their signatures at the time of seizing of the recovered contraband. 11. The learned standing counsel for the DRI has produced the case diary of DRI Case No. 21/CL/NDPS/HEROIN/DRI/GZU/ 2024-25 and has submitted that the investigation is still going on and there are materials against the petitioners in the case diary which would implicate them in the offence alleged in the complaint petition. 12. The learned standing counsel for the DRI has also relied on a ruling of the Apex Court in the case of “Union of India through Narcotics Control Bureau – Vs- Nawaz Khan” reported in (2021) 10 SCC 100” wherein the Apex Court has observed that “if the contraband is seized from the vehicle in which the accused persons were also travelling it can be held that the accused persons are in conscious possession of the seized contraband”. 13. The learned standing counsel for the DRI has also cited a ruling of the Apex Court in the case of “Rakesh Kumar Raghuvanshi –Vs- the State of Madhya Page No.# 5/7 Pradesh” reported in “2025 0 INSC 96” wherein the Apex Court had dealt with the meaning of conscious possession in case involving offence under the NDPS Act, 1985. 14. The learned standing counsel for the DRI has also submitted that in the statement recorded under Section 67 of the NDPS Act, 1985, the apprehended accused persons there are incriminating materials. He also submits that though as per the decision in the case of “Tofan Singh –Vs- State of Tamil Nadu” reported in “(2021) 4 SCC 1”, the statement cannot be used as evidence in the trial of offence involving NDPS Act, 1985 however, same may be utilized by the Investigating Authority during the stage of investigation. 15. I have considered the submissions made by the learned counsel for both the sides as well as perused the materials available on record including the case diary produced by learned standing counsel for the DRI. I have also gone through the rulings cited by learned counsel for both the sides in support of their submissions. 16. In the instant case, the investigation is still going on and final complaint is yet to be filed by DRI. 17. On perusal of the case diary, it appears that the seized contraband is of huge quantity, i.e., 3180.83 grams of heroin, which was transported in the secret chambers of vehicle bearing Registration No. AS25EC3517. The petitioner No. 1 was found as one of the occupant of the said vehicle. 18. The said truck was being escorted by another vehicle, i.e. Toyota Fortuner car bearing Registration No. UK07BS0189, where other two petitioners were found. What is interesting to note that the lady accused, namely, Pretty Thoitak, was also found as an occupant of the said vehicle and it was she as Page No.# 6/7 well as the driver of the truck who disclosed the place in the Tata truck where the contraband which were seized were concealed. 19. It is also important to note that the secret information received by the Officers of DRI on 13.12.2024 was to the effect that the contraband was transported in the Tata truck, which is escorted by Toyota Fortuner car. The apprehended accused persons in their statement recorded under Section 67 of the NDPS Act, 1985 have disclosed that the present petitioners were engaged by Pretty Thoitak to escort the transportation of seized contraband. They were promised to be paid Rs. 25,000/- each for doing the same. 20. Though, in view of the judgment of “Tofan Singh –Vs- State of Tamil Nadu” (Supra), it is no longer res integra that the statement of the accused recorded under Section 67 of the NDPS Act, 1985 cannot be used as an evidence in the trial of offence under NDPS Act 1985. However, this Court is of considered opinion that same may be used as a material during investigation, which would give lead to the investigating agency in collecting admissible evidence during the course of the investigation. 21. In the instant case, the Toyota vehicle was found escorting the truck in which the seized contraband was found, as informed by the reliable sources. 22. As in the instant case, the petitioner No. 1 was found in the truck from which the seized contraband were recovered, as well as petitioner No. 2 and 3 were found in the vehicle which was escorting the truck where the seized contraband were found, at this stage of the investigation, it is difficult to hold that there are reasonable grounds for believing that the petitioners are not guilty of the offence involved in this case. Hence, the embargo of Section 37 of the NDPS Act, 1985 would be applicable in this case. Page No.# 7/7 23. This is not a case where the petitioners are not found at the place of recovery and the only material against them is the statement of co-accused as well as their statement. In this case, the petitioners were found in the vehicle in which the seized contraband was recovered as well as in the vehicle escorting the vehicle carrying the seized contraband. 24. Therefore, the petitioners have failed to overcome the embargo of Section 37 of the NDPS Act, 1985 at this stage. Hence, the prayer for bail is rejected. JUDGE Comparing Assistant