Criminal Procedure Code, 1973
Section 438—Anticipatory bail—Recovery of heroin—FIR registered under Section 21/25/29 of the NDPS Act—Petitioner’s name has been mentioned by co-accused but undisputedly neither any recovery of contraband has been made from co-accused nor from the present petitioner—Recovery is from other co-accused persons and there is no material on record to connect the petitioner to the said accused persons—Only incriminating material against petitioner is the disclosure statement of co-accused and CDRs showing the petitioner’s family being in touch with the said co-accused—Though disclosure statement of co- accused under Section 67 of the NDPS Act is not admissible per se in view of the decision of the Supreme Court in (2021) 4 SCC 1, but even if the advantage of the same is not extended to the petitioner at this stage of considering his anticipatory bail application in view of the decision of Supreme Court in Crl.A.1005/2022, wherein it has been observed that the advantage of (2021) 4 SCC 1 perhaps can only be taken at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial but not at the stage of anticipatory bail, still it cannot be overlooked that co-accused, who has named the present petitioner has already been granted regular bail on the ground that no recovery of contraband has been made from her—Recovery from co-accused was also of intermediate quantity and there is nothing on record to connect her to the petitioner on one hand and to the main accused on the other hand—Though the petitioner has been previously involved in three criminal cases but none of alleged cases are under the NDPS Act—Apart from there being no recovery from petitioner, as well as from co-accused, who had named the petitioner, this Court cannot shut its eyes to the fact that ASI and one middleman, have been arrested by the CBI while accepting bribe amount of rupees ten lakhs in connection with the present case—At this stage false implication of some of accused including petitioner cannot be ruled out—Insofar as the CDRs are concerned, the evidentiary value of the same shall be seen at the stage of the trial and it cannot be a ground to deny anticipatory bail to the petitioner at this stage—Application allowed.
[Paras 17 to 26]