JUDGMENT 1. - Present Application has been filed under I Section 439 Cr.P.C. for grant of regular bail to the petitioner in a case arising out of F.I.R. No. VIII (IO)11/NCB/JZOV/2013, registered at Police Station, Narcotic Bureau, Jodhpur, for commission of offences punishable under Sections 8/20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Prosecution version is that three persons, namely Sanjay Rajoria, Anop Singh and Ashok Chauhan were arrested. From all the three accused, 18.800 grams 'ganja' was recovered. Accused, during interrogation have made the statement under Section 67 of the Act that they had procured 'ganja from the present petitioner. 3. The learned Counsel appearing on behalf of the petitioner has submitted that the statement made by the co-accused, who were under arrest to the Officers of Narcotic Bureau, is hit by Section 25 of the Indian Evidence Act, as for all intent and purposes the officials of the Narcotic Bureau were acting as Police Officials. 4. Mr. Tej Prakash Sharma, the learned Special Public Prosecutor appearing on behalf of the Narcotic Bureau, has controverted this preposition canvassed by the learned Counsel appearing for the petitioner, and has further submitted that official of the Narcotic Bureau is not a Police Officer, therefore, any statement made to him is admissible in evidence. 5. Controversy raised is not new to the Courts. It has drawn attention of the Hon'ble Supreme Court from time to time. Recently, in the case of Tofan Singh v. State of Tamil Nadu, reported in 2013 X AD (SC) 440 the Apex Court considering the entire gamut has referred the matter to the Larger Bench. 6. Relevant Paras of the aforesaid judgment reads as under "38. In our view the aforesaid discussion necessitates a re-look into the ratio of Kanhiyalal case. It is more so when this Court has already doubted the dicta in Kanhaiyalal (supra) in the case of Nirmal Singh Pehalwan, (2011) 12 SCC 298 , wherein after noticing both Kanhiyalal as well as Noor Aga, this Court observed thus : "15. We also see that the Division Bench in Kanhaiyalal case, 2008 (4) SCC 668 ; (2008) 2 SCC (Cri.) 474 , had not examined the principles and the concepts underlying Section 25 of the Evidence Act vis-a-vis. We also see that the Division Bench in Kanhaiyalal case, 2008 (4) SCC 668 ; (2008) 2 SCC (Cri.) 474 , had not examined the principles and the concepts underlying Section 25 of the Evidence Act vis-a-vis. Section 108 of the Customs Act the powers of Custom Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar's case (supra). The latest judgment in point of time is Noor Aga's case which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga's case particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with." 39. For the aforesaid reasons we are of the view that the matter needs to be referred to a Larger Bench for re-consideration of the issue as to whether the officer investigating the matter under NDPS Act would qualify as police officer or not. 40. In this context, the other related issue viz., whether the statement recorded by the Investigating Officer under Section 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as Police Officer also needs to be referred to the Larger Bench, inasmuch as it is intermixed with a facet of the 1st issue as to whether such a statement is to be treated as statement under Section 161 of the Code or it partakes the character of statement under Section 164 of the Code." 7. After hearing the learned Counsel for the parties, this Court is of the view that if the statement recorded under Section 67 of the NDPS Act, 1985 are excluded, there remain no evidence with the prosecution to connect the present petitioner with the alleged crime. 8. Since, the Larger Bench of Apex Court may interpret the question referred, in any manner, therefore, till the decision is taken by the Apex Court, the benefit has to flow to the accused so far his bail is concerned, as his liberty is involved and he is behind the bars and suffering incarceration. 8. Since, the Larger Bench of Apex Court may interpret the question referred, in any manner, therefore, till the decision is taken by the Apex Court, the benefit has to flow to the accused so far his bail is concerned, as his liberty is involved and he is behind the bars and suffering incarceration. Therefore, on this count alone, the present application is, hereby, accepted and the petitioner is ordered to be released on bail during the pendency of the trial to the satisfaction of the Trial Court.Bail application allowed. *******