Judgment 1. The petitioner has filed this petition seeking to enlarge him on bail in connection with the case registered against him by the respondent in R.R. No. 4 of 2013 for the offences punishable under Section 8 (c) read with Section 22, 25 and 28 of Narcotic Drugs and Psychotropic Substances (in short NDPS) read with Section 135 of Customs Act, 1962. 2. The case of the prosecution is that on the basis of a tip off received by them that a parcel weighing 50 kgs of substance covered under the NDPS Act is being transported from New Delhi to Chennai by M/s. Rama Trading Company, New Delhi to M/s. Sri Balaji Enterprises, Chennai through Railway Parcel Service Operator M/s. Kamadenu Express Cargo Movers, Chennai and arriving on 29.01.2013, the officials of the respondent inspected Kamadenu Express Cargo Movers, Chennai. During such search, the petitioner was interrogated by the officials of the respondent and he introduced himself as Proprietor of Kamadenu Express Cargo Movers. The petitioner also produced the relevant documentary records sought for by the officials of the respondent. During the course of examination, the officials of the respondent examined a parcel containing 50 kilograms of Methaguualone, a psychotrophic substance. After observing all the formalities, the officials of the respondent seized all the materials with relevant records and also issued summons to the petitioner for his appearance. Accordingly, the petitioner appeared and a statement under Section 67 of the NDPS Act was recorded from him. The respondent thereafter arrested the petitioner and remanded him to judicial custody on 30.01.2013. 3. Upon arrest, the petitioner has filed Crl.OP No. 8198 and 14894 of 2013 before this Court and they were dismissed by this Court on 20.06.2013. Thereafter, the present petition seeking bail has been filed by the petitioner on the ground that there is a change of circumstances in the case. According to the petitioner, the investigating agency has now filed the final report in the case and it was taken on file as C.C. No. 4 of 2013 before the learned Additional Chief Metropolitan Magistrate, EO-II, Egmore, Chennai and therefore, present petition is maintainable. 4. The learned counsel for the petitioner would contend that in the Criminal Case in C.C. No. 4 of 2013, the petitioner was arrayed as A-1, his brother Ramachandra Pandit and Somnath Pal were arrayed as A-2 and A-3. 4. The learned counsel for the petitioner would contend that in the Criminal Case in C.C. No. 4 of 2013, the petitioner was arrayed as A-1, his brother Ramachandra Pandit and Somnath Pal were arrayed as A-2 and A-3. According to the counsel for the petitioner, the petitioner has given a statement under Section 67 of the NDPS Act before the officials of the respondent and that was duly recorded. Thereafter, 11 specific questions have been posted to the petitioner to ascertain his involvement or knowledge about the transaction relating to the psychotrophic sybstance. The petitioner answered all the questions explaining his innocence and gave an exculpatory statement. Inspite of such statement and categorical assertion with regard to non-involvement, the petitioner was arrested and remanded to judicial custody. 5. The learned counsel for the petitioner brought to the notice of this Court the subsequent development in this case. According to the counsel for the petitioner, the brother of the petitioner, who was incharge of the Delhi office was arrested. Further, the person, who booked the consignment in the Delhi office was also arrested. The only person who is absconding in the present case is Shafi, who was supposed to come and collect the parcel from the petitioner at Chennai. However, the prosecution has not so far taken any steps to arrest Shafi. In any event, the petitioner is in judicial custody for more than a year and he is innocent. 6. The learned counsel for the petitioner mainly contend that the petitioner has merely received the parcel at Chennai without knowing its content. Further, the brother of the Petitioner Ramachandra Pandit submitted a petition to the Deputy Director, DRI, New Delhi stating that as soon as the consignment in this case was seized by the respondent, on the same day on 29.01.2013, the very same person who booked the consignment came to his office to book another consignment of similar nature and he was caught by the petitioner's brother, however, within a few hours, a mob of persons took him away at knife point leaving a sim card bearing No. 9910804131 and it was also sent by him to the officials as a proof. However, the officials of the respondent did not take any efforts to bring them on record. However, the officials of the respondent did not take any efforts to bring them on record. There is lacuna on the part of the investigating agency in apprehending the real culprits who are responsible for the offence. This is evident that the petitioner has no role to play and he is not guilty of the offence. The petitioner did not know the contents of the consignment. The petitioner earned his livelihood by doing the railway booking parcel service and his arrest had shattered the entire family consisting of his 4 children of tender age. The petitioner's elder daughter is 19 years and she has attained marriageable age. The petitioner was made a scape goat. 7. The learned counsel for the petitioner vehemently would contend that Section 37 of the NDPS Act is not a bar as far as the petitioner is concerned. The petitioner, through his statement under Section 67 of the NDPS Act has established that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. While so, the petitioner is entitled for the discretionary relief of bail. In this context, the learned counsel for the petitioner relied on the unreported decision of this Court rendered on 13.04.2008 made in Crl.OP No. 6734 of 2008 wherein this Court held that the confession of a co-accused cannot be placed reliance by the prosecution as against the petitioner and it is open to the prosecution to prove its case against the petitioner by adducing incriminating evidence against him. Inasmuch as the prosecution failed to prove the guilt of the petitioner by producing any material evidence to implicate him, the petitioner is entitled for bail and therefore he prayed for allowing this petition. 8. The learned Special Public Prosecutor appearing for the respondents vehemently opposed the petition for bail by relying on the counter filed by the investigation officer. According to the learned Special Public Prosecutor, the petitioner is not innocent, as portrayed by the counsel for the petitioner. The petitioner has approached this Court with unclean hands. The petitioner had earlier dealt with a consignment of similar nature with Shafi on 11.01.2013 without even receiving the delivery charges and such delivery charges was received subsequently on 19.01.2013. This was also admitted by the petitioner in his statement under Section 67 of the Act. The petitioner has approached this Court with unclean hands. The petitioner had earlier dealt with a consignment of similar nature with Shafi on 11.01.2013 without even receiving the delivery charges and such delivery charges was received subsequently on 19.01.2013. This was also admitted by the petitioner in his statement under Section 67 of the Act. As far as the present consignment is concerned, Shafi contacted the petitioner over phone twice on 29.01.2013 and enquired about the arrival of the consignment. Soon after the consignment arrived, the petitioner contacted Shafi over phone and informed him that the consignment had arrived. According to the learned Special Public Prosecutor, the petitioner had delivered the earlier consignment on the promise made by Shafi that he will regularly transact with such goods. When the consignment was delivered to Shafi by the petitioner for the first time, the fact that the petitioner did not verify his name, address and other credentials of Shafi before delivering the goods would disprove the contention of the petitioner regarding his innocence. However, the petitioner, during his statement has stated that he did not know the whereabouts of Shafi. Even on verification of the details of Shafi furnished by the petitioner, he was found to be a non-existing person. In other words, there is no such person called as Shafi. Therefore, this is a clear case where the petitioner had knowledge about the consignment and dealt with it for some pecuniary gain. It is stated by the learned Special Public Prosecutor that the confession of the petitioner also is a relevant factor for consideration in this case. 9. According to the learned Special Public Prosecutor, earlier, when the petitioner has filed the first bail application, his brother was absconding. The brother of the petitioner did not respond to the summons dated 29.01.2013 issued by the respondent and he was absconding. However, a letter dated 22.02.2013 was addressed by the petitioner's brother to the Deputy Director, DRI, New Delhi stating that on 23.01.2013, two parcels were booked from Delhi to Chennai weighing 50 kgs with the consignor name indicated as Rama Trading Company, Delhi. The name of the consignee indicated is Sri Balaji Enterprises, Chennai. On 29th January 2013, the same person had come by a vehicle bearing No. DL 3C BW 1245 to get a similar parcel booked with the invoice in the name of Universal Trading Company. The name of the consignee indicated is Sri Balaji Enterprises, Chennai. On 29th January 2013, the same person had come by a vehicle bearing No. DL 3C BW 1245 to get a similar parcel booked with the invoice in the name of Universal Trading Company. It was further stated in the letter that the petitioner's brother refused to book the parcel and detained him in his office. However, the petitioner's brother obtained his name and address as Somnath Pal of New Delhi. Subsequently, Somnath Pal was set free at knife point at the instance of his men who gathered in the shop of his brother. According to the brother of the petitioner, even though the vehicle number and mobile number of Somnath Pal has been given, the police did not take any action. It is also stated by the petitioner's brother that at that time, he could not call the police due to the commotion and confusion prevailing in the scene of occurrence. Such a version of the petitioner's brother, according to the learned Special Public Prosecutor, cannot be accepted. According to the learned Special Public Prosecutor, Somnath Pal has already involved himself in a case relating to possession of ephedrine, a controlled substance under the NDPS Act registered by the Directorate of Revenue Intelligence, New Delhi and subsequently he was transmitted to Chennai. According to the learned Special Public Prosecutor, all the above said persons are part of a larger network involved in illicit transaction in psychotrophic substance pursuant to a conspiratorial arrangement to illicitly transport it out of India. It is further stated that the contraband seized in this case is found to be a Ketamine Hydrochloride weighing 50 kgs, which is a psychotrophic substance besides the quantity seized is a commercial quantity which has an international grey market value. Therefore, the learned Special Public Prosecutor would contend that the plea of bail sought for by the petitioner attracts the provisions of Section 37 of the NDPS Act and there is a clear bar for releasing the petitioner on bail. The statement given by the petitioner clearly indicates his involvement in this case and it does not in any way establishes innocence on his part. In fact, the statement would reveal that the petitioner has consciiously shielded Shafi and others and pleaded innocence. The statement given by the petitioner clearly indicates his involvement in this case and it does not in any way establishes innocence on his part. In fact, the statement would reveal that the petitioner has consciiously shielded Shafi and others and pleaded innocence. It is also stated that even though charge sheet has been filed in this case, still, Shafi, the so-called person who said to have taken delivery of the parcel from the petitioner is yet to be identified and traced. It is the petitioner who knows Shafi and no one else could identify him. If the conduct of the petitioner is taken note of then this Court would satisfy that he is not entitled for the discretionary relief of grant of bail in this case. The plea of the petitioner that he is in jail for than one year will not be a ground for him to seek bail and it need not be considered in a case of this nature involving commercial quantity. In the absence of any proof to show that the petitioner is not guilty of the offences and that he is not likely to commit similar offence in future, Section 37 is a bar for grant of bail to the petitioner. Therefore, the learned Special Public Prosecutor prayed for dismissal of the Petition. 10. In support of his contention, the learned Public Prosecutor relied on the decisions reported in (i) (Babua @ Tazmul Hossain vs. The State of Orissa) 2001 (1) Supreme 411 (ii) (Narcotic Control Bureau vs. Raju @ Natarajan) (2006) 9 SCC 712 and (iii) (N.R. Mon vs. Moho Nasimuodin) 2008 6 SCC 721 to contend that Section 37 of the Act is a bar for grant of bail to the petitioner. In the aforesaid decisions, it was also held that unless there are material to come to the conclusion that the accused could not be held guilty of the charges levelled against him, the Court should not exercise its discretionary relief to grant bail to the accused. 11. I heard the counsel for both sides and perused the mateirlas placed on record. This is the second petition filed by the petitioner seeking bail. The first petition for bail was dismissed by this Court on 20.06.2013. 11. I heard the counsel for both sides and perused the mateirlas placed on record. This is the second petition filed by the petitioner seeking bail. The first petition for bail was dismissed by this Court on 20.06.2013. The present petition for bail has been filed by the petitioner contending that the investigating agency has filed the charge sheet in this case besides that the petitioner's brother and another accused Somath Paul have been arrested in this case. According to the petitioner, at the time when he filed the first bail petition, the petitioner alone was arrested and the investigating agency did not file the charge sheet. Therefore, the petitioner would contend that there is a change of circumstance in this case and the petitioner is therefore entitled to file this petition. Moreover, the petitioner is in jail for more than one year and therefore also, the present petition seeking bail has been filed. 12. In this case, before the arrest of the petitioner, his statement was recorded under Section 67 of the NDPS Act. Similar statements were also obtained from the brother of the petitioner. However, the third accused in this case namely Somnath Pal refused to give any such statement to the investigation agency. The petitioner also pleads that the marriage of his daughter is in the process and therefore also his claim for bail shall be considered by this Court. 13. First of all, this is a case involving commercial quantity of 50 kgs of psychotrophic substance and it is duly covered under the provisions of Section 37 of the NDPS Act. The chemical analysis report dated 20.03.2013 obtained in this case from the office of the Joint Director, Central Revenues Laboratory, Custom House, No.60, Rajaji Salai, Chennai reveal that the contraband seized in this case is that of a ketamine hydrochloride. 14. With this backdrop, it has to be examined as to whether Section 37 of the NDPS Act is a bar for grant of bail in favour of the petitioner. In this context, the statement given by the petitioner under Section 67 of the NDPS Act before his arrest requires to be considered. In his statement, the petitioner categorically revealed that prior to the delivery of consignment in question, already, he had delivered a similar consignment to Shafi, however, for having delivered such consignment, the petitioner did not even receive any delivery charges. In his statement, the petitioner categorically revealed that prior to the delivery of consignment in question, already, he had delivered a similar consignment to Shafi, however, for having delivered such consignment, the petitioner did not even receive any delivery charges. It is also admitted by the petitioner himself that he has not verified the credentials of the said Shafi or he had taken note of his mobile number, residential address or contact details prior to handing over delivery of the earlier consignment. It is also the admission of the petitioner that it was the first time when he handed over a consignment to Shafi. If it is so, the petitioner ought not to have handed over the consignment to Shaji without even verifying his credentials. Moreover, the petitioner merely delivered the consignment without even collecting the delivery charges and it creates a suspicion about the involvement of the petitioner. It is unlikely that the petitioner, who is the proprietor of a Cargo handling company, had delivered the earlier consignment to Shafi without even collecting the delivery charges especially when he met Shafi for the first time during the course of his business. The consignment delivered by the petitioner is also a huge consignment of 50 kgs. When such a big parcel is handed over for the first time to an unfamiliar person, the petitioner ought to have identified his credentials and collected the charges thereof. However, even according to the petitioner, he did not collect any charges for the ealirer consignment. This would only go to show that the petitioner and the said Shafi knows each other and had acquaintance with each other for some time and that is the reason why the petitioner allowed the said Shafi to take delivery of the earlier consignment without even receiving the delivery charges. Therefore, this part of the statement given by the petitioner creates suspicion about the involvement of the petitioner. 15. It is seen from the records that soon after the arrest of Shafi, his brother absconded and he did not respond to the summons issued by the DRI, New Delhi. Rather, the petitioner's brother wrote a letter stating that Somnath Pal earlier came to his office for booking a consignment and when he came to his office for the second time, he detained him and questioned his credentials. Rather, the petitioner's brother wrote a letter stating that Somnath Pal earlier came to his office for booking a consignment and when he came to his office for the second time, he detained him and questioned his credentials. However, even according to the brother of the petitioner, he did not call the local police by dialing 100'. While so, it was alleged that Somnath Pal was rescued from his custody by a group of persons at knife point. However, the brother of the petitioner was arrested subsequently. Somnath Pal, who allegedly booked the consignment at New Delhi was also arrested. The investigating agency has also recorded the confession of the petitioner's brother but the other accused Somnath Pal refused to give any such statement. Somnath Pal is the person who booked the consignment in Delhi through the brother of the petitioner. The Delhi office is managed by the brother of the petitioner. All these instances happened after the arrest of the petitioner in this case. In such circumstances, it cannot be said that the petitioner is innocent. In other words, there is no material available to come to such a conclusion that the petitioner is innocent. 16. The learned counsel for the petitioner relied on the decision of this Court rendered on 13.04.2008 in Crl.OP No. 6734 of 2008 wherein this Court held that the confession of a co-accused cannot be placed reliance by the prosecution as against the petitioner and it is open to the prosecution to prove its case against the petitioner by adducing incriminating evidence against him. In this case, the petitioner has not been implicated on the basis of any statement made by the co-accused. In fact, only after the arrest of the petitioner, the co-accused were apprehended. Further, the facts involved in that case are distinguishable inasmuch as it relate to a transaction of “Ganja” and therefore, the decision cited by the counsel for the petitioner has no application to this case. 17. The learned Special Public Prosecutor relied on the decisions of the Honourable Supreme Court. Further, the facts involved in that case are distinguishable inasmuch as it relate to a transaction of “Ganja” and therefore, the decision cited by the counsel for the petitioner has no application to this case. 17. The learned Special Public Prosecutor relied on the decisions of the Honourable Supreme Court. In the decision rendered in the case of (Babua @ Tazmul Hossain vs. The State of Orissa) 2001 (1) Supreme 411 wheein it was held that as per Section 37 (1) (b) of the Act, unless there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail, the accused is not entitled for the relief of bail. 18. In the case of (Narcotic Control Bureau vs. Raju @ Natarajan) reported in (2006) 9 SCC 712 the Honourable Supreme Court finds that the High Court granted bail to the accused simply on the ground that the sample did not contain presence of narcotic and psychotropic substance, which is legally impermissible and thereby cancelled the bail granted to the accused therein. The Honourable Supreme Court also held that the accused was in jail for a period of six months is not a reason to release him on bail in a crime of this nature. 19. The learned Special Public Prosecutor further relied on the decision of the Honourable Supreme Court in the case of (N.R. Mon vs. Moho Nasimuodin) 2008 6 SCC 721 wherein it was held that unless the accused satisfies the Court with regard to the twin conditions that there are reasonable ground for believing that he is not guilty and he is not likely to commit any offence while on bail, the accused is not entitled for the relief of bail. Such satisfaction has to be arrived at by the Court on the basis of materials available on record. The reasonable grounds indicated in Section 37 of the Act means more than the prima facie grounds and it requires adequate material to believe that the accused is not guilty of the offence. 20. A cumulative reading of all the decisions would indicate that the petitioner must satisfy this Court that there are no material available to implicate him and that he will not commit or repeat any such offence while on bail. 20. A cumulative reading of all the decisions would indicate that the petitioner must satisfy this Court that there are no material available to implicate him and that he will not commit or repeat any such offence while on bail. As far as the first requirement is concerned, this Court could only hold that there are more than prima facie case against the petitioner in the form of a statement rendered by the petitioner himself under Section 67 of the NDPS Act. As mentioned above, the statement given by the petitioner creates doubt as to his innocence. The fact that immediately after the arrest of the petitioner his brother was at large and could be arrested only subsequently is a factor to be taken note of by this Court. Therefore, this Court holds that Section 37 of the NDPS Act is a bar for grant of bail to the petitioner. Accordingly, the Criminal Original Petition is dismissed.