Jasbir Singh v. Narcotics Control Bureau

16. It is stated that in his statements, he admitted and accepted the complicity in commission of NDPS offences and he further identified Mr. Sarvothaman Guhan as his online friend.

17. In his statement under Section 67 of the NDPS Act, the Applicant stated that he had dealt with Accused No.1/Mr. Sarvothaman Guhan once on behalf of Accused No.5/Ms. Shradha Surana @ thebanksy @ thetrippylanes @ Phyonix and one, Accused No.14/ Mr. Parichay Arora @ pptheplug. He further admitted that he along with Ms. Shradha Surana and Mr. Parichay Arora was involved in drug business through “dark net” and ordered drugs from USA and Canada for the purposes of reselling. He also disclosed that he was introduced to one, “Orient Express Group” on Telegram by Ms. Shradha Surana. He disclosed usernames of several other people being involved in the said Telegram group – namely one Mr. Naman Sharma @ Chico, one Mr. Krunal Golawala @ theprimememester @ Fluffy and one Ms. Dixita Golawala @ Pheobe. He also stated that his Telegram handle was “@optimusprime” which was later changed to “@thekaliyuga”.

18. He further disclosed that the payments of drugs were sent to the Applicant through Ms. Shradha Surana‟s bank account and bank account of Mr. Neil Singhvi, a cousin of Ms. Shradha Surana. He also disclosed the tracking number of one shipment in transit which was ordered by Accused No. 8/Raghunath Kumar.

19. In the complaint, it is alleged that the Applicant was an active and verified vendor on the “Orient Express Group”, procured drugs from vendors in and outside India to various addresses provided by Ms. Shradha Surana, and thereafter, resold the same to customers on the ARORA group.

20. On 01.09.2021, the Applicant was arrested under Section 8/20/29 of the NDPS Act, on the basis of recoveries and his confessional statements recorded under Section 67 of the NDPS Act. He has been in custody since then.

21. On the basis of disclosure statement of the Applicant, Ms. Shradha Surana was also served notice under Section 67 of the NDPS Act, and her statements were recorded on 04.09.2021, 06.09.2021, 11.09.2021, 12.09.2021, 13.09.2021, 14.09.2021, and 15.09.2021 under Section 67 of the NDPS Act.

22. It is stated that Ms. Shradha Surana admitted her complicity in commission of NDPS offences and also admitted to being a member of the Telegram group “Orient Express”, which was used for illegal ganja business. She also admitted to consuming and distributing contraband to close friends, for which she used to receive payments through UPI on several bank accounts used and controlled by her.

23. She also informed that she had been arrested by NCB, Kolkata earlier in a different NDPS case and was out on bail in the said case. She admitted to knowing both Accused No. 14/Parichay Arora and the Applicant. Accused No. 5 further stated that she had been in a relationship with the Applicant for the past 4-5 years. It is alleged that she admitted of being aware of the Applicant‟s procurement of illegal contrabands from various countries such as USA, Canada, Spain etc. She also allegedly admitted to carrying out financial transactions relating to drugs through the bank account of her cousin, Neil Singhvi.

24. She also allegedly disclosed about Accused No. 8/Raghunath Kumar, ARORA who was present on „wickr‟ with the username „Shopperstop‟. She allegedly also made disclosures about one Suvashish Roy @ Jesse Pinkman (Accused No. 7), who was said to be involved in the procurement and sale of drugs with her and Accused No. 14. Consequent to her statements, Accused No. 5 was arrested.

25. It is further stated that on the same day, i.e., 04.09.2021, Accused NO. 6/Naman Sharma also appeared before the NCB-KZU and his statement under Section 67 NDPS Act was recorded. On 04.09.2021, Accused No. 6 allegedly admitted to being a member of a group on „Telegram‟, which was used for illegal ganja business. He allegedly stated that he used to procure the parcels of ganja, through the said group from various sellers like the Applicant (identified as the Kaliyuga), Accused No. 5/Shradha Surana, Accused No. 9/Krunal Golawala and others, at his address for consumption and distribution among friends.

26. On 08.09.2021, the statement of Neil Singhvi, the cousin of Accused No. 5 was recorded under Section 67 NDPS Act. It was previously alleged through the statements of the Applicant and Accused No. 5 that the bank account of Neil Singhvi was allegedly controlled and managed by Accused No. 5 for receiving and sending proceeds of crime from drugs to and from several persons including the Applicant.

27. In his statement under Section 67 NDPS Act, Neil Singhvi denied having any knowledge on the alleged operation of drugs business and stated that his bank account was being managed and controlled by Accused No.5 on the pretence of doing trading business. Subsequently, on 17.09.2021, the statement of Neil Singhvi was recorded before a ARORA Magistrate under Section 164 CrPC. Neil Singhvi did not mention the Applicant in any manner in his statement recorded under Section 164 CrPC. Though, in his statement under section 67 NDPS Act, he had stated that he had knowledge about several persons including the Applicant with whom there were frequent transactions.

28. Based on the disclosure statement of the Applicant in relation to parcel bearing No. CH 138942752US being in transit for delivery at Kolkata, the parcel was searched after due permission. The consignee of the said parcel was Mr. Rahul Bahadur, R/o 115/B, Cripper Road, Konnagar, Hooghly, West Bengal-712414. The search of the parcel showed cannabis paste (solid) weighing 39.700 grams and cannabis liquid weighing 2.530 grams.

29. On 13.09.2021, the Respondent examined Accused No. 8/Raghunath Kumar who was allegedly named by the Applicant and other coaccused persons as a drug dealer/vendor on wickr as „shopperstop‟ and who was lodged at Bellary Jail, Karnataka. Accused No. 8 allegedly named the Applicant, Accused No. 5/Shradha Surana, Accused NO. 14/Parichay Arora and Accused No. 9/Krunal Golawala. Accused No. 8 also stated that he used to get 10% commission on certain transactions of the Applicant‟s through bitcoins.

30. On 14.09.2021, the respondent wrote a letter to DDG (Ops) NCB to freeze the bitcoin wallets held with localbitcoins.com. Resultantly, a request was made to concerned authorities in Finland to freeze the bitcoin wallets.

31. On 08.10.2021 and 26.10.2021, an email was sent to the NCB, Helsinki (Finland) in response to the request of NCB-DZU. The NCB, Helsinki ARORA (Finland) disclosed that no account on their server existed with respect to the credentials disclosed.

32. On 14.09.2021, the statement of Mr. Karan Kumar Gupta was also recorded, who stated that he delivered parcels containing drugs from Ms. Shradha Surana to the Applicant. He delivered the parcels to a place at Mogra, West Bengal and received some money for his services without being aware of the contents of the parcel. He does not name the Applicant but referred to the Applicant as ‗Mogra wale bhaiya‘.

33. Accused No.9/Krunal Golawala in his statement under Section 67 of the NDPS Act admitted to being a part of the telegram group „Orient Express‟ as a vendor and also admitted to being associated with the Applicant. He also produced certain chats with one deleted account and stated that the deleted account belonged to the Applicant. He stated that the Applicant approached him to ship drugs on his behalf for which he would receive a commission from the Applicant.

34. On 25.09.2021, the name of Accused No.11/Devesh Vasa surfaced from the bank account statement of Neil Singhvi. Accused No. 11 stated that he had previously ordered ganja and LSD from the Applicant, through his Telegram account „The Optimus Prime‟ and that he made payments for the same to Neil Singhvi‟s UPI ID.

35. On 25.09.2021, the Applicant was arrested in case arising out of NCB Case No. VIII/52/DZU/2021 and was remanded to fourteen (14) days police custody of the Respondent.

36. Accused No. 14/ Parichay Arora in his section 67 statement admitted to being an active member and an admin of the group „Orient Express‟ on Telegram along with Accused No. 6/Naman Sharma and Accused No.

37. On 21.10.2021, the statement of Tareena Bhatnagar was recorded under Section 67 NDPS Act. She stated that the Applicant approached her for selling ganja and that she procured the same from him from time to time, the payment of which was made to Neil Singhvi‟s bank account. However, she does not refer to any specific transactions in this regard. She further introduced Accused No. 1/Sarvothaman Guhan to the Applicant, post which Accused No. 1 ordered drugs from the Applicant.

38. On 06.12.2021, the Applicant was produced before the Ld. Chief Metropolitan Magistrate, Bankshal Court, Kolkata, in relation to the five (5) cases registered by the Kolkata Zonal Unit against inter alia the Applicant, bearing Case No. 780/2021, Case No. 781/2021, Case NO. 801/2021, Case No. 802/2021 and Case No. 803/2021. On the same day, the Applicant was granted regular bail in all the five (5) cases on such grounds that the quantities of drugs/contraband recovered in those cases were below small quantity, and because the offences were bailable.

39. On 31.01.2022, the respondent NCB filed the complaint under Sections 8(c)/20(b)(ii)(A)/20(b)(ii)(B)/21(b)/22(c)/23 and 29 of the NDPS Act against 15 accused persons.

40. On 23.09.2021, the learned Special Judge (NDPS), Patiala House Courts, New Delhi dismissed the bail application of the Applicant on the grounds that the offences are serious in nature and investigation was pending. In addition, the bar of Section 37 of the NDPS Act was also applied.

41. Broadly, the case of the respondent is that all the aforementioned accused persons hatched a criminal conspiracy and abetted each other by indulging in sale, purchase, possession, consumption, import and export, and inter-state movement of narcotics drugs and psychotropic substances and that the accused persons thereby conducted illegal trade of contraband by misusing internet and social media platforms.

42. Mr. Sidharth Agarwal, learned senior counsel for the Applicant has argued that the Applicant is entitled to bail on the following grounds:a. No recovery of contraband from the Applicant. b. No recovery from any of the premises controlled by the Applicant. c. The shipment intercepted on the basis of the Applicant‟s information contained cannabis paste (solid) weighing 39.700 grams and cannabis liquid weighing 2.530 grams and hence, is small quantity. d. The reply from NCB, Helsinki clearly shows that there is no money which has been received by the Applicant in the form of bitcoin currency. e. The statement of the Applicant under Section 67 of the NDPS Act cannot be looked into unless it leads to discovery of some fact not in the knowledge of the police officer.

43. He states that the genesis of the entire prosecution story is bitcoin. Once the NCB, Helsinki (Finland) has given in writing that there is no bitcoin account of the Applicant with them, the entire fulcrum of the argument of the prosecution becomes baseless. NCB Helsinki, in their ARORA email dated 08.10.2021, categorically stated that they have not found any account with the username singh.jasbir2006@gmail.com at LocalBitcoins.

44. He further states that Ms. Shradha Surana was in a relationship with the Applicant for a period of 5 years and hence, the financial transactions were there between the Applicant and Ms. Shradha Surana. Mr. Neil Singhvi is a cousin of Ms. Shradha Surana, hence, all the transactions between the Applicant, Ms. Shradha Surana and Mr. Neil Singhvi were in the ordinary course of living together.

45. He contends that the primary basis underlying the allegations against the Applicant are his statements recorded under Section 67 NDPS Act. The same are not admissible as evidence against the Applicant as per the mandate under Section 25 of the Evidence Act and in light of the judgment of Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1 which categorically held that Section 67 NDPS Act is hit by Section 25 of the Evidence Act. Therefore, neither can the statements nor their contents be accepted as evidence qua the Applicant.

46. He relies on Section 27 of the Indian Evidence Act (hereinafter “IEA”) to say that in order for applicability of section 27 IEA, the fact so discovered is admissible when accompanied by recovery of an object and does not include pure mental or psychological facts.

47. He states otherwise Section 25 and 26 IEA will kick into force and a statement under Section 67 of the NDPS Act is a statement to a Police Officer and cannot be relied upon. He further states that a fact can only be discovered once and not again and again.

48. He states that the Applicant‟s statements recorded under Section 67 ARORA NDPS Act have been derived by the Respondent from the statements made by Accused No. 5/Shradha Surana and Accused No. 6/Naman Sharma. The Applicant‟s first two statements were recorded on 01.09.2021 and on 07.09.2021. Accused No. 5‟s first two statements were recorded on 04.09.2021 and 06.09.2021, and the statement of Accused No. 6 was recorded on 04.09.2021. The Applicant‟s statement recorded on 01.09.2021 contains details about Accused No.1/Sarvothaman Guhan, Accused No. 5/Shradha Surana, Accused No. 14/Parichay Arora, and on the Applicant‟s alleged “P-Cloud” credentials. However, Accused No. 5‟s first two statements were recorded on 04.09.2021 and 06.09.2021 and the statement dated 06.09.2021 contains crucial details relating to the alleged conspiracy such as the alleged „Orient Express‟ group along with details of its members including the alleged usernames.

49. Information pertaining to „Orient Express‟ group and details of its admins being Accused No. 14/Parichay Arora and Accused NO. 12/Mohd. Aslam along with respective alleged usernames was disclosed by Accused No. 6 on 04.09.2021. However, the said information finds mention in the Applicant‟s statements recorded only on or after 07.09.2021. It is submitted that the existence of the „Orient Express‟ group and the alleged usernames are crucial to the case of the conspiracy of the Respondent and without the same, the theory of the Respondent cannot stand.

50. He states that Ms. Shradha Surana has already given all these facts on 06.09.2021 and 11.09.2021, which were verbatim repeated by the Applicant on 07.09.2021 and 12.09.2021.

51. Hence, addressing the argument of Section 27 of the Evidence Act, since identical statement of Ms. Shradha Surana is already on record having been made prior in time to that of the Applicant, the statement of the Applicant under Section 67 of the NDPS Act will not be covered by the exception of section 27 IEA.

52. Mr. Agarwal, learned senior counsel for the Applicant states that once the statement under Section 67 of the NDPS Act cannot be looked into, it would result in a finding that there is no recovery of commercial quantity of contraband at the instance of the Applicant and he would be entitled to bail as: (a) He has been incarcerated for more than 1 year; (b) He is a 26 year old young person;

(c) The complaint has already been filed, and hence, no investigation is required.

53. He states that the respondent has failed to show as to why the custody of the Applicant is required. He also states that since no commercial recovery has been made from the Applicant, the rigours of the Section 37 NDPS Act will not apply.

54. Mr. Bansal, learned standing counsel per contra has stated that the disclosure statement of the Applicant led to recovery of contraband of commercial quantity from Mr. Krunal Golawala. He states that the phone of Mr. Krunal Golawala shows chats with regard to contraband with one deleted account and as per the statement of Mr. Krunal Golawala, the deleted account belongs to the Applicant.

55. He states that the Applicant disclosed about a parcel bearing No. CH138942752US which arrived in India from USA and was in transit ARORA at Kolkata. Upon search of said parcel at Foreign Post Office, 12, Kiran Shankar Roy Road, Kolkata, it led to recovery of 39.700 grams Paste of cannabis and 2.530 gram liquid of cannabis.

56. He further states that during investigation of the Applicant, details of the telephone no. 9537387776 and pseudo name of Phoebe had surfaced, and it revealed that the real name was Mrs. Dixita Golawala who is wife of Krunal Golawala residing at Surat. Subsequently, on 24.09.2021, the search were carried at the premises of Krunal Golawala which led to recovery of 1 Kg 30 grams of Ganja from residence of Krunal & Dixita Golawala; 955 grams Ganja (imported), 96.[6] grams Charas, 363 Ecstasy tablets (284 grams) (MDMA); 286 LSD blots (5.[6] grams), 171 grams Hashish Chocolate from the Office of Krunal Golawala & Dixita Golawala.

57. Even the Wefast app rider i.e. Karan Kumar Gupta, who accepted rides for transmission of drugs from different landing addresses to the address of the Applicant, has given evidence regarding identification of Applicant by identifying photos of Accused 5 and the Applicant.

58. He contends that the modus operandi for trafficking of contraband was being marketed on social media platforms and then delivered to the customers/consumers through parcels. The high quality ganja as well as other contraband was all ordered from abroad through darknet by use of crypto currency.

59. He states that based on financial transactions with Accused Devesh Vasa disclosed by the Applicant and Accused No.5, the same was examined by NCB Kolkata and confirmed by the account statement of Neil Singhvi (Cousin brother of Accused No.5 Shraddha). During ARORA examination, it came to light that accused Devesh Vasa was involved with the Applicant and Accused 5/Shradha Surana for purchasing drugs for personal use and his friend. It was found that a parcel bearing No. K 51641295 belonging to Devesh Vasa was lying at DTDC, Camac Street branch, Kolkata. The said parcel was searched and 05 Blots of LSD (0.05 gram) were seized from the same. The receiver‟s name mentioned on the parcel was fake but the correct house address and mobile number of Devesh Vasa was mentioned on the said parcel. Further scrutiny and examination revealed a wickr chat of Devasha & one blemonkush[1], wherein they had conversation about Tracking No. K 51641295, in which Devesh Vasa was enquiring about the arrival and dispatch of the said parcel. The chats also showed payment of Rs. 4,500/- for purchase of the same 05 blots of LSD.

60. He argues that the Applicant has committed the offence of criminal conspiracy with other accused persons and also indulged in illicit trafficking of drugs i.e. commercial quantity of contraband and as such there is embargo under section 37 of NDPS Act for grant of bail on the Applicant. In this regard, he has relied upon the judgment of State of Kerala and Ors. v. Rajesh and Ors. (2020) 12 SCC 122. ANALYSIS:-

61. I have heard learned counsel for the parties.

62. The following questions arise for determination:

A. WHETHER THE STATEMENTS OF THE APPLICANT ARE

INADMISSIBLE IN EVIDENCE AND THEY DO NOT LEAD ARORA TO DISCOVERY OF ANY ‘FACT’ IN TERMS OF SECTION 27 OF THE INDIAN EVIDENCE ACT, 1872?

63. As statements recorded under Section 67 NDPS Act are inadmissible being hit by Section 25 IEA, the only way to make any part of such statements admissible, is by way of Section 27 IEA which creates an exception and allows only such part of a confessional statement, being information leading to discovery of some fact not previously in the knowledge of the police officer. In the present case, none of the statements of the Applicant lead to any discovery of a „fact‟, and hence, the statutory bar to their admissibility and reliability is attracted.

64. Section 25 IEA reads as under:

65. Section 27 IEA reads as under:

66. Section 67 NDPS Act reads as under: “67. Power to call for information, etc.—Any officer referred ARORA to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act,— (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;

(c) examine any person acquainted with the facts and circumstances of the case.”

67. With regards to applicability of Section 27 IEA, the fact so discovered is admissible when accompanied by the recovery of a material object and does not include purely mental or psychological facts. It is relevant to note the observations of this Hon‟ble Court in State v. Navjot Sandhu @ Afsan Guru Crl. A. No. 80/2003 wherein this Hon‟ble Court, after placing reliance on Pulukuri Kottaya and Ors v. The King-Emperor 1946 SCC OnLine PC 49, and several other judgments of the Hon‟ble Supreme Court and other courts, summarized the law governing Section 27 IEA as follows:

68. Therefore, for any part of the alleged disclosures of the Applicant to be admissible, it was necessary that such disclosure led the Respondent to recovery of any contraband, or any other „fact‟ related to the alleged offences. Given that none of the disclosures of the Applicant, except (at best for the recovery of a contraband involving quantity lesser than small quantity) led to the discovery of any object, or a “new fact” thereby, such disclosures under section 67 NDPS Act are held inadmissible in evidence.

69. All the other disclosures made by the Applicant had already been disclosed by Accused No. 5/Shradha Surana. Therefore, only that part of disclosure of the Applicant would be hit by the exception of section 27 IEA which was not already disclosed by Accused No. 5.

70. The disclosures pertaining to the Applicant‟s pseudonyms being ARORA „Optimus Prime‟, „The Kaliyuga‟, „Agent Ressler‟, etc. towards the operation of „Orient Express‟ group, and other such groups, and the Applicant‟s role in it, are inadmissible in evidence, as the same have not led the Respondent to discover any physical object or new fact.

71. Additionally, a „fact‟ under Section 27 IEA can only be discovered once, and once such a „fact‟ is discovered, the same cannot be rediscovered or discovered again. A perusal of the complaint filed by the Respondent and documents relied upon therein would show that the contents of the statements of the Applicant have been largely borrowed from the statements of Accused No. 5/Shradha Surana.

72. The first statement of the Applicant does not disclose any details of the „Orient Express‟ group or its participants, and it‟s only after the detailed statement of Shradha Surana recorded on 06.09.2021 that the Applicant‟s statement under section 67 NDPS disclosed the details of the group, its participants and other information relating to the offences. Hence, the Respondent having prior knowledge of such facts from the disclosure of Accused No.5/Shradha Surana on 06.09.2021 and 11.09.2021, before the Applicant disclosed them on 07.09.2021 and 12.09.2021, acts as a bar to attract the provisions of Section 27 IEA.

73. The relevant portion of the statement of Accused No.5/Shradha Surana recorded on 04.09.2021 reads as under: “I, Shradha Surana, D/o Sh. Ravi Surana, am unmarried and my family consists of my mother, aged about 51 years and father, aged about 61 years. They live with me at the aforesaid address. I ARORA completed by MBA degree from I.B.S. College, Mumbai in the year

2020. Before that, I did my B.S.c from Shri Shikshayatan College, Kolkata. During my studies at college, I became friends with Jasbir and we started getting to know each other. After finishing my college studies, in 2018, I went to Mumbai for my MBA studies and we used to converse over call during that time. Jasbir had come to meet me once, around 2 weeks before the lockdown. After that, I came back to Kolkata in July, 2020. During January- February, 2021, Jasbir got some money deposited in my account, by giving my UPI Id to someone. Once, out of trust, he asked me to give him some addresses of my locality and I gave him some addresses by trusting him. I did not know what goods he was ordering. He only told me that some parcels would arrive which were to be sent to him. A person named Karan Kumar Gupta delivered the parcels to Jasbir. On the parcels getting caught, Karan revealed NCB everything about me. NCB, Kolkata registered a case on the 8 parcels (875 gms) caught by them. They arrested me and put me in jail. Due this, I spent 7 days in jail and am currently on bail. A case is going on against me at Bankshal Court. On being asked, I state that I was in contact with certain people through Instagram and bitcoin in my mobile. I know Parichay Arora through bitcoins. Apart from this, I had a relationship with Jasbir for 4 years. When Jasbir asked for addresses before, I did not know what the contents of the parcels. Later on, after I questioned him a lot, I came to know that he did business of illegal drugs from foreign (USA, Canada, ARORA Spain). Unknowingly, I kept assisting him. When he asked me for addresses, while I wanted to get out of all of this, I asked Karan Gupta and he gave me his address for some money. I met Jasbir last on 24.07.2021 when he snatched away phone. On the next day, I went to police station and got an FIR registered against Jasbir. This is my statement. The answers to questions put to me by NCB officers are as follows:

1. Your mobile number – 8558058332

2. Your Aadhar card and Pan card number Ans. – 411575455274. I do not remember my Pan Card.

3. Please state your email ID Ans. – me1tsush@gmail.com

4. Please state your bank account number Ans. – I do not remember.‖

74. The relevant portion of the statement of Applicant dated 01.09.2021 is reproduced below: “ I, Jasbir Singh S/O Ashok Kumar Singh, r/o- Mogra, Kantapukur, G.T. Road, Hooghly, Kolkata stated I am 25 years old and living with my Grand Father and Grandmother. I am not living with parents. On asking by NCB officers about my role in the seizure of ganga from the possession of one person namely Sarvo @ Sarvotham Gutam in NCB Delhi. I told that 15 days ago some office of NCB came to my house and served a notice under section 67 of NDPS regarding my involvement in the cases of ganga seized in NCB Kolkata from the parcels. At that ARORA time I was not present at the house because I lived in Abdul at known Gopal uncles house at Chuna Bhati More Andul about 70 kms far from my house. I am living there since 2014 and have been working at my Truck Business. I come home at weekends to meet grandparents. My Grandmother toked me about the notice from NCB Kolkata. Then I was scared and hired an advocate Mr. Sinha and after his advice I deleted all the data from my mobile and give the mobile to him. After that he advised me to surrender before the Honorable Court of CMM, Howrah on 01/09/2021 and also told me to come in the advocates Uniform on his advice I went to the court in lawyers uniform. On asking by NCB officers about Sarvo @ Sarvotham Gutam of Delhi, I told that he is my online friend who is in ganja business. I also dealt with him once on behalf of Shradha Surana and Parichay Arora from Delhi of Rs. 6 Lakh, which I gave it to the Shradha Surana and Parichay Arora directly through Sarvo@ Sarvothman Guhan. Shradha and Parichay both are also involved in this darknet business of sales purchase of ganja from USA and Canada. I can provide my PCloud credentials to support which is glitch1004@protonamail.com, Password: ―glitch1004". This is my statement which I gave without any peer pressure. Sd/- Jasbir Singh Question: What is your mobile number Answer: 9830408094 ARORA Ques: What is the mobile number of Sarvo? Ans: I don‘t remember as Shradha and Parichay spoke to him directly. Ques: Do you know that dealing in Narcotics Drugs as ganja is an punishable offense in India? Ans: Yes. Ques: What is the mobile number of Shradha? and adress? Ans: Mobile number is in my mobile not that I remember and she lived in Tollygunj and her father name is Mr Ravi Surana. I met Shradha on a dating app Okcupid at 2017. Ques: What is the address and phone number of Parichay Arora? Ans: He is from Delhi and I do not know where he lived in Delhi as I have never met him personally he is a very close friend of Shradha – communication with the mobile phone. I am not remember. Available in my phone. Ques: What is the account number? Ans: Dena Bank Hooghly. Ques: What is immovable property in your name Ans: No any property in my name.‖

75. The relevant portion of the statement of Accused No.5 dated 06.09.2021 reads as under: “Statement of Shradha Surana during custody:- I, Shradha Surana D/O Ravi Surana R/O Moore Exotica, Kolkata – 700040 aged 25, appearing before NCB officer during NCB ARORA custody, on asking by NCB officer regarding my involvement in the Case number 46/21 which is registered in NCB, Delhi. I said that I am an MBA graduate from IBS, Mumbai and was working as an analyst in Private Sector. After the lockdown in 2020, I came back to Kolkata in July, 2020. On being asked that, I got in touch with one Naman Sharma on Instagram, regarding dealing in drugs (weed) and he suggested me to join the group – The Orient Express regarding the sale and purchase of weed (Ganja), LSD, MDMA, Cocaine etc. as decided mutually I entered the Telegram group and Naman (Walter White) was having the admin rights of the group. The said group was being managed by one Pptheplug (Parichay Arora) and Chico (Md. Aslam). When I entered the group, I found that the drug dealings were happening on the said group as I knew that Jasbir was also selling Ganja, LSD, Ecstacy etc, I made him join the group. He was using user Ids Optimus Prime, and later TheKaliyuga. I was using the Id TheBansky. I had my own clientele and used to sell my stuff to the customers. I further said that I used to receive payments through UPI and I used to pay on the same. For this purpose, I had used the following UPI Ids – me1tsush@paytm, 8013151511@paytm, me1tsush@dbs, me1tsush123@kotak, 8013151511@kotak, 9692149325@paytm and also I convinced my cousin brother Neil to provide his UPI Id for receiving and paying the sale proceeds. He (Neil) did not know about the reason of the payment and just did as I directed. I had ARORA told him that I was dealing in bitcoin and these were payments for that. I used to provide addresses to Jasbir and he would use them to order on those addresses. On all those addresses contact number of either me or Karan or any other member was mentioned so that we could receive the parcel instead of the original address holder. On being asked about Jasbir, I said that I know him since 2017 as a friend and after that we got into a relationship. However, his clientele was different to that of mine. He used to order from Shopperstop. I used to pay him as well to pass on my drug parcel to their destination. The parcels would come from India Post, Jasbir would provide the tracking ID just before the parcels would be out for delivery, I would receive them from the post man and would either pass the parcels to a Wefast rider named Karan Kumar Gupta. He did not know of the contents of the parcel. Karan had volunteered that he can personally take the parcel and deliver it to Jasbir‘s address for an extra charge. As Karan had delivered my personal gift item at Jasbir‘s address once, I referred him and he delivered the parcel to Jasbir‘s address. There were around 5 - 8 parcels which were accepted by me and forwarded to Jasbir. In the month of April, 2021 around 8 parcels were caught in customs, after which I did not want to cooperate with Jasbir and did not want to help him retrieve the parcels. On the other side I carried on my drug shipping business. … On asked by NCB officer, I told that I introduced Arpan and one ARORA more guy who agreed to do the shipping for 10 % commission. Jasbir would forward the addresses along the quantity of blots and the shippers would ship the blots as directed to the given address. Whenever the amount was sent to my UPI – 8013157571@paytm, me1tsush-1@okaxis, me1tsush-1@okicici, me1tsush@kotak, me1tsush-2@ohstri, 9692149325@paytm and 9777905747@paytm. I would forward the amount to Jasbir either via UPI or he would ask me to convert the amount to bitcoin and then transfer it to him. I had a localbitcoin.com account which was a verified account as I was interested in investment and analysis of crypto currency. (Credential - me1tsush@gmail.com, Password-J@cosbobby) I received three addresses on from Neil also, on which on parcel was sent. This parcel was for a person who goes by the name Psychbaba and a DTDC courier guy came to collect the same day and was sent to Ahmedabad. Neil had no knowledge of the reason of payments and only transferred the amount as I asked him to. Neil was never involved in any of the contents of the parcels also. I had told him that the payment were for bitcoin payments. In the group there were 6 sellers – Pptheplug (Parichay Arora), Optimus Prime/ The Kaliyuga (Jasbir Singh), Fluffy/ The Primememester (Krunal Golawal), Bansky (Me), Pheobe, Chico (Md. Aslam). While the others were buyers in the group. The identity of all the users were anonymous but as sellers, we interacted from time to time. Payment was done ARORA through GPay. In the meanwhile I got to know of a lot of the narcotics network in India, which I willingly disclosed. I understood the working of the DarkNetMarketIndia and the Big names, who were procuring and supplying narcotics from abroad, Like – Shopperstop (Raghunath Kumar – known to supply LSD), Vagator (known to supply cannabis in tons in India), Blofferdaddy (known to supply Gammagoblin LSD in India), Psychbaba, Only Love, PpDelhi. Shopperstop has a deep network in Mumbai, Nagpur, Noida. Naturesbasket, Delyaidstore are the two names of the shops where people on darknet used to order contrabands. Vagator has a deep network in Gujarat and Maharashtra and Kolkata. PpDelhi/ Pptheplug (Parichay Arora) has a deep network in Noida and Delhi. He has a friend known as EL Jessie/ Jessie Pinkman (Shubhasish Roy) who works with him and helps in the orders. Down Town Cartel was his shop name where he would sell MD, Cocaine and other contrabands.‖

76. The relevant portion of Applicant‟s statement dated 07.09.2021 reads as under: ―Statement of Jasbir Singh during custody:- I, Jasbir Singh son of Ashok Kumar Singh, Age: 25 Male, R/o Mogra G.T. Road, Kantapukar, Hooghly, Kolkata-712148 arrested by NCB officer in Case No. 46/21 registered in Delhi Zonal Unit ARORA during the remand / custody in NCB office, asking by NCB Officers of my involvement in the trafficking of narcotics substances, I told NCB office that I am in the business from October, 2020. In the beginning I was only in Telegram. Then I was introduced to a Telegram group named The Orient Express by Shradha Surana, she already was a vendor there, there were lots of people in the group over 300, owner of the group was pptheplug namely Parichay Arora, the other Admins / Vendors in the groups were Chico and Heisenburg (NAMAN SHARMA, from Kolkata), @ Theprimememester (previously known as Fluffy) (from Surat), Pheobe (Fiance of Fluffy), @ Thebanksy (Shradha Surana from Kolkata) (Also goes by the handles namely @ Thetrippylanes, @ Pyhonix) and @ The Kaliyaga (Jasbir Singh from Kolkata) (Previously known as Optimus Prime). I used to source narcotics from shopperstop (Raghunath Kumar, from Bihar now lodged in jail in Karnataka, Bellary Jail (I think) in the beginning as he sends within Indian an wickr, also I have ordered from Vagator for sourcing weed within India and send them at the addresses provided by Shradha Surana. On being asked by NCB Officers about my phones, when Sharadha Surana was caught I had destroyed one phone by throwing it away and the other phone was left with the lawyer when I went to the Court at Kolkata. The telegram group named The Orient Express was involved in the selling and purchasing of drugs, where vendors were the ones selling the narcotics in the group, and members in the group participated in the purchase of the drugs. On asking by NCB ARORA officers about the residence and mobile number of Pptheplug @ Parichay Arora, Chico and Heisenburg @ Naman Sharma I told that Parichay Arora is from Delhi, H-22, Shastri Park, and I told Naman Sharma is from Kolkata, House No. 143, Bhajrang Vatika and I didn‘t know any details regarding Chico. Shradha Surana and Naman Sharma came to NCB offices escorted by NCB officers. They were identified by me correctly and told to NCB officers that they are Shradha Surana and Naman Sharma. Payments used to be received and paid by Shradha Surana as she had all the UPIs maintained by Shradha with IDs i.e. her own, Neil, Tanya Singh Kushwah, 9692149325@paytm – Balia Hansala, sunita 3499@okicici – Anjali Anant Warankar, 9777905747@paytm – Sulochana Bhuyan, 9088263140 – Shradha and then the money used to be converted into crypto - currencies which was paid ahead for sourcing narcotics and other payments which were supposed to be made. Payment made to Jasbir Singh (Singh.jasbir 2006-1 @oksbi) through Neil‘s account; Shradha Surana‘s accounts i.e. me1tsush-01@oksbi, 8013151511@paytm. Payments were also made to Karan Kumar Gupta for providing addresses and receiving it. Known UPIs of Parichay Arora are Pptheplug@ybl, ps954581@okaxis. Known UPI of @ theprimememester is theprimememester@ybl. Parcels used to come from USA, Amsterdam and India, which was sold on the groupB.‖

77. Similarly, the statements recorded on 11.09.2021 of Shradha Surana ARORA and statement of the Applicant recorded on 12.09.2021 are more or less on the similar lines.

78. A comparison of the statements reproduced above clearly show that crucial details regarding the functioning of the drug cartel were revealed by Accused No.5 on 06.09.2021, that is prior to disclosure made by the Applicant on 07.09.2021.

79. I am of the view that the respondent has relied on statements made under section 67 NDPS which are inadmissible in evidence by virtue of section 25 IEA. The first statement of the Applicant dated 01.09.2021 does not disclose any information which is not already known to the Respondent. In the aforesaid first statement of the Applicant, there are no disclosures pertaining to any „Orient Express‟ group, or his alleged pseudonyms therein being „optimus prime‟ or „kaliyuga‟.

80. The Respondent was already aware of Accused No. 5/Shradha Surana, as she was previously arrested by the NCB in July-August 2021. The Applicant‟s disclosure of Accused No. 14/Parichay Arora was limited to the fact that the Applicant knew some person by this name i.e. Parichay Arora and no details of any possible recovery of contraband finds mention in his statement. No physical details of these co-accused persons were provided.

81. In Jaffar Hussain Dastagir v. State of Maharashtra (1969) 2 SCC 872, the Court observed as under: ―11. In our view Gaud must have learnt that Parekh and or accused No. 3 had the custody of the diamonds. Therefore the statement of the appellant that accused No. 3 had the custody of ARORA the diamonds would not be something unknown to the police so as to constitute "a fact deposed to as discovered in consequence of the information received" from the appellant. The discovery, if any, merely related to the whereabouts of accused No. 3. There was no discovery of any fact deposed to by the appellant within the meaning of Section 27. If the police had not gone to the office of the Bombay Samachar and had not learnt of the complicity of the third accused with the crime, the statement of the appellant would amount to information received from him relating to the discovery of the diamonds in the custody of accused No. 3.

12. In the result although the statement might otherwise have been admissible in evidence, there was no discovery of a fact connecting the appellant with the receipt of the diamonds which were stolen within the meaning of Section 27 of the Evidence Act because the police already knew that the third and/or the fourth accused had the diamonds. The appeal must be allowed and the appellant directed to be set at liberty.‖

82. Therefore, in view of the above discussion, I am of the opinion that the disclosure statements made by the Applicant did not lead to discovery of a new fact or object as the facts had already been disclosed earlier by Accused No. 5/Shradha Surana.

83. Thus, the statements of the Applicant are inadmissible in evidence, and they do not lead to discovery of any „fact‟ in terms of Section 27 of IEA.

B. WHETHER RECOVERY INVOLVING COMMERCIAL

QUANTITY ARE ATTRIBUTABLE TO THE APPLICANT?

84. It is the Applicant‟s submission that there have been no recoveries of any drugs from the Applicant, in person or from him house. Having perused the facts and circumstances of the case, in my opinion the only recovery that can, at best, be attributed to the Applicant is one which took place pursuant to the alleged statement of the Applicant dated 07.09.2021, being a parcel lying at Foreign Post Office, Kolkata. The said recovery consisted of 39.[7] grams of cannabis paste and 2.53 grams of cannabis liquid and the same constitutes „small quantity‟ as notified under the NDPS Act.

85. It is alleged that Applicant led them to arrest of Accused No.7/Suvashish Roy, Accused No. 9/Dixita Golawala and Accused No.10/Krunal Golawala. Recoveries were made wherein, inter alia 16 grams of ecstasy pills (MDMA) was recovered from Accused No.7 and imported ganja weighing 955 grams, charas weighing 96.[6] grams, 363 Ecstasy tablets weighing 284 grams, 286 Ecstasy Blots weighing 5.[6] grams and hashish chocolate weighing 171 grams was recovered from the office of Accused No. 9 and Accused No.10 and 1 kg 30 grams contraband from the residence of Accused No.9 and Accused No.10.

86. The Respondent having prior knowledge of such details from the disclosure of Accused No.5/Shradha Surana on 11.09.2021, before the Applicant disclosed them, the exception to section 27 IEA is not attracted.

87. Hence, the recoveries of commercial quantity of contraband from ARORA Accused No. 7/Suvashish Roy and Accused No.10/Krunal Golawala cannot be attributed to the Applicant as the same was duly in the knowledge of the Respondent prior to disclosure statement of the Applicant. The only recovery which can be attributed to the Applicant is one involving small quantity.

88. In addition, none of the ingredients of section 19, 24, 27A NDPS Act are attracted to the facts of the present case. Hence, the rigors of Section 37 NDPS Act do not apply to the Applicant. In addition to the above, (1)TELEGRAM CHATS ALLEGEDLY PRODUCED BY ACCUSED NO. 10 KRUNAL GOLAWALA DO NOT MAKE OUT A CASE AGAINST THE APPLICANT

89. The Respondent has relied on some Telegram chats allegedly produced by Accused No. 10/Krunal Golawala, alleging that the same took place between him and the Applicant.

90. I am of the view that the said chats do not make out a case against the Applicant as a perusal of the same shows that the chats are with a „Deleted Account‟ and there is no corroborative prima-facie evidence to show that the said deleted account belongs to the Applicant except the disclosure statement of Accused No. 10/Krunal Golawala. (2)BANK ACCOUNT STATEMENTS DO NOT MAKE OUT A CASE AGAINST THE APPLICANT ARORA

91. The Respondent has relied on the bank account statements of Accused No. 5/Shradha Surana, and that of one Neil Singhvi, cousin of Shradha Surana, and allegedly controlled by her to show that there were bank transactions of the Applicant with Shradha Surana and Neil Singhvi. It is the case of the Respondent itself that the Applicant was in a relationship with Shradha Surana for the past few years and the bank transactions could be in normal course of events.

92. The said bank account transactions cannot by themselves be used to place any culpability upon the Applicant in light of Section 34 IEA which mandates that even though books of accounts, such as bankaccount statements, can be proved, there is a requirement for other evidence to prove an allegation with respect to such books of accounts against a person. Merely because there are transactions between the Applicant and Accused No.5/Shradha Surana, the same do not automatically prove that the transactions were related to the alleged offences or that they implicate the Applicant of conspiracy with other accused persons.

93. Section 34 IEA reads as under:

ARORA

94. Reliance in this regard is placed on the judgment of the Hon‟ble Supreme Court in CBI v. V.C. Shukla and Ors., (1998) 3 SCC 410 wherein it was observed that: