Sunday 25 August 2024

Supreme Court: Statement Under S.67 NDPS Act is Inadmissible to convict a person under said Act

We may note that the Trial Court and High Court have

relied upon the appellant's statement under Section 67 of the

NDPS Act. In paragraph 158 of the decision of this Court in the

case of Tofan Singh(2021) 4 SCC 1, this Court held thus:

“158. We answer the reference by stating:

158.1. That the officers who are invested with

powers under Section 53 of the NDPS Act are

“police officers” within the meaning of Section

25 of the Evidence Act, as a result of which any

confessional statement made to them would be

barred under the provisions of Section 25 of the

Evidence Act, and cannot be taken into account

in order to convict an accused under the NDPS

Act.

158.2. That a statement recorded under

Section 67 of the NDPS Act cannot be used

as a confessional statement in the trial of an

offence under the NDPS Act.”

(emphasis added)

Therefore, the appellant's statement recorded under Section 67

of the NDPS Act is not admissible in evidence and cannot be

read in evidence. {Para 9}

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 878 OF 2019

AJAY KUMAR GUPTA  Vs UNION OF INDIA 

Author: ABHAY S. OKA, J.

Citation:  2024 INSC 619.

Dated: August 22, 2024.

FACTUAL ASPECTS

1. The appellant is accused no.2. Along with other coaccused, he was prosecuted for the offences punishable under

the Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short, ‘the NDPS Act’). The case of the prosecution is that the

Narcotics Control Bureau (for short, ‘NCB’) received secret

information on 21st December 2013 that a consignment of

pentazocine, a psychotropic substance, was being transported

illegally from Hajipur to Lucknow by train for being sold in the

market as an intoxicating item. The NCB team mounted

surveillance near the parcel house of Hajipur station. When

accused no.1 - Jasvinder Singh reached there, he was

intercepted. According to the prosecution case, accused no.1

identified the consignment he had booked from the railway

parcel house. During the search of the booked consignment,

Criminal Appeal No. 878 of 2019 Page 2 of 10

30 cartons of pentazocine (Fortwin injections) manufactured by

Ranbaxy company were found. A statement of accused no.1

was recorded under Section 67 of the NDPS Act. He admitted

that he used to purchase medicines from Patna and sell them

in Lucknow, Uttar Pradesh. He claimed that he bought Fortwin

injections from the appellant-accused no.2 and one Arun Singh

on several occasions.

2. Even the appellant's statement under Section 67 of the

NDPS Act was recorded in which he stated that he runs a

medical shop in Katra Market, Govind Mitra Road, Patna,

under the name and style of M/s Mangalam Drug Agency. He

disclosed that he had a valid licence issued by the Office of

Controller of Drugs, Bihar. He stated that accused no.1 came

to his shop and demanded 40 cartons of Fortwin injections. He

could provide only 30 cartons against payment of cash. The

consignment of 30 cartons was obtained by the appellant from

accused no.3 – Sanjay Kumar, who was also running a medical

store in the name of M/s Maheshwari Pharma. On the request

made by the appellant, accused no.3 sent 30 cartons of Fortwin

injections to accused no.1. The case of the prosecution is that

the appellant produced his drug licence before the officers of

NCB. On trial, the Special Court convicted the appellant and

accused nos.1 and 3 for the offences punishable under Section

22(c) and Section 29 of the NDPS Act. For the offence

punishable under Section 22(c), the appellant was sentenced

to undergo rigorous imprisonment for 10 years and to pay a

fine of Rs. 1,00,000/-. Separate punishment was not imposed

Criminal Appeal No. 878 of 2019 Page 3 of 10

for the offence punishable under Section 29 of the NDPS Act.

The conviction of the appellant has been confirmed by the High

Court by the impugned judgment.

SUBMISSIONS

3. The first submission of the learned senior counsel

appearing for the appellant is that the charge framed against

the appellant and accused no.1 was only for the offence

punishable under Section 22(c) of the NDPS Act. The allegation,

as stated in the charge, was that on 21st December 2013, the

appellant and accused no.1 gave cartons of Fortwin injections

for interstate transportation without any valid licence and in

contravention of Section 8(c) of the NDPS Act. He submitted

that no charge was framed against the appellant for the offence

punishable under Section 29 of the NDPS Act. He submitted

that the finding of the High Court is that the appellant has been

prosecuted and convicted for having sold contraband to an

unauthorised person, leading to the presumption that the

contraband was sold to be used as an intoxicant. He submitted

that there is no evidence to show that the contraband

contained in the consignment booked by the accused no.1 was

purchased from the appellant. He submitted that the Courts

have placed reliance on the statement of the appellant recorded

under Section 67 of the NDPS Act, which is not admissible in

evidence as held by this Court in the case of Tofan Singh v.

State of Tamil Nadu1. He submitted that apart from prejudice

caused to the appellant on account of non-framing of proper

charge, the allegation of conspiracy under Section 29 of the

NDPS Act was not put to the appellant in his statement

recorded under Section 313 of the Code of Criminal Procedure,

1973 (for short, ‘CrPC’). He submitted that unless a charge of

conspiracy under Section 29 was proved, the appellant could

not be punished under Section 22(c) of the NDPS Act.

4. The learned senior counsel appearing for the respondent

submitted that the accused no.3, who examined himself as a

defence witness, placed on record invoices issued to the

appellant for sending the Fortwin injections. She submitted

that the fact that 30 cartons of Fortwin injections were supplied

by accused no.3 at the instance of the appellant has been

established through evidence. She submitted that there is

enough evidence on record to show that the contraband was

supplied to accused no.1 at the instance of the present

appellant by the accused no.3.

CONSIDERATION OF SUBMISSIONS

5. We have perused the notes of evidence and considered

the submissions. Under Section 8(c), there is a complete

prohibition on possessing and transporting any narcotic drug

or psychotropic substance. Section 22 of the NDPS Act reads

thus:

“22. Punishment for contravention in relation

to psychotropic substances.—Whoever, in

contravention of any provision of this Act or any

rule or order made or condition of licence

granted thereunder, manufactures, possesses,

sells, purchases, transports, imports inter-

Criminal Appeal No. 878 of 2019 Page 5 of 10

State, exports inter-State or uses any

psychotropic substance shall be punishable,—

(a) where the contravention involves small

quantity, with rigorous imprisonment for a term

which may extend to [one year], or with fine

which may extend to ten thousand rupees, or

with both;

(b) where the contravention involves quantity

lesser than commercial quantity but greater

than small quantity, with rigorous

imprisonment for a term which may extend to

ten years, and with fine which may extend to

one lakh rupees;

(c) where the contravention involves

commercial quantity, with rigorous

imprisonment for a term which shall not be less

than ten years but which may extend to twenty

years, and shall also be liable to fine which shall

not be less than one lakh rupees but which may

extend to two lakh rupees:

Provided that the court may, for reasons to be

recorded in the judgment, impose a fine

exceeding two lakh rupees.”

In this case, the contravention involves commercial quantity,

for which there is no dispute. Section 22 is attracted when, in

contravention of any provisions of the NDPS Act, anyone

possesses or transports a psychotropic substance.

6. Section 29 reads thus:

“29. Punishment for abetment and criminal

conspiracy.—(1) Whoever abets, or is a party to

a criminal conspiracy to commit, an offence

Criminal Appeal No. 878 of 2019 Page 6 of 10

punishable under this Chapter, shall, whether

such offence be or be not committed in

consequence of such abetment or in pursuance

of such criminal conspiracy, and

notwithstanding anything contained in Section

116 of the Indian Penal Code (45 of 1860), be

punishable with the punishment provided for

the offence.

(2) A person abets, or is a party to a criminal

conspiracy to commit, an offence, within the

meaning of this section, who, in India, abets or

is a party to the criminal conspiracy to the

commission of any act in a place without and

beyond India which—

(a) would constitute an offence if committed

within India; or

(b) under the laws of such place, is an offence

relating to narcotic drugs or psychotropic

substances having all the legal conditions

required to constitute it such an offence the

same as or analogous to the legal conditions

required to constitute it an offence punishable

under this Chapter, if committed within India.”

7. In the facts of the case, the consignment was booked by

accused no.1, and therefore, he was found to be transporting

the psychotropic substance in contravention of Section 8(c) of

the NDPS Act. There is no allegation against the appellant of

transporting the contraband. The consignment was booked in

the name of the accused no.1 as per the prosecution case.

Therefore, unless it is proved that the appellant had supplied

the consignment to accused no.1 or was a part of a criminal

Criminal Appeal No. 878 of 2019 Page 7 of 10

conspiracy to commit an offence under Section 22(c), the

appellant cannot be punished.

8. Perusal of the evidence of accused no.3, who was

examined as a defence witness, shows that he was carrying on

the business of M/s Maheshwari Medical in his wife's name.

He stated that he issued invoices for sending Fortwin injections

to the appellant. However, there is no evidence on record to

show that accused no.3 procured the contraband that is the

subject matter of the prosecution and handed it over to the

appellant or accused no.1.

9. We may note that the Trial Court and High Court have

relied upon the appellant's statement under Section 67 of the

NDPS Act. In paragraph 158 of the decision of this Court in the

case of Tofan Singh(2021) 4 SCC 1, this Court held thus:

“158. We answer the reference by stating:

158.1. That the officers who are invested with

powers under Section 53 of the NDPS Act are

“police officers” within the meaning of Section

25 of the Evidence Act, as a result of which any

confessional statement made to them would be

barred under the provisions of Section 25 of the

Evidence Act, and cannot be taken into account

in order to convict an accused under the NDPS

Act.

158.2. That a statement recorded under

Section 67 of the NDPS Act cannot be used

as a confessional statement in the trial of an

offence under the NDPS Act.”

(emphasis added)


Therefore, the appellant's statement recorded under Section 67

of the NDPS Act is not admissible in evidence and cannot be

read in evidence.

10. The High Court, in paragraph 37 of the impugned

judgment, has noted that a statement of the transporter ought

to have been recorded to prove that the delivery of consignment

containing contraband was made by accused no.3 to the

appellant's shop. In fact, the person who allegedly transported

the contraband from accused no.3 to the appellant was a

crucial witness. However, the prosecution has withheld the

evidence of this witness from the Court. Hence, an adverse

inference must be drawn against the prosecution. In the

statement of accused no.1, under Section 67 of the NDPS Act,

he stated that he purchased Fortwin injections from the

appellant and one Arun Singh several times. However, no

investigation has been carried out against Arun Singh.

11. There is no recovery from the appellant of any

incriminating material. There is no evidence to show that the

contraband tried to be transported by accused no.1 by railway

parcel was delivered by or on behalf of the appellant to accused

no.1. There is no evidence of any conspiracy against the

appellant. Therefore, the respondent has not established the

offences punishable under Sections 22(c) and 29 of the NDPS

Act against the appellant beyond a reasonable doubt.


12. It is necessary to refer to the charge framed, which reads

thus:

“ Case No. C2A1 of 2013

Name of Accused hereby charge you (1)

Jasavinder Singh @ Kooki

Person (2) Ajay Kumar Gupta

That you on or about the 21st day of December,

2013 at 7.50 to 10.30 P.M., at Parcel house Rly.

Station, Platform No.1, Hajipur Junction on

P.S. Hajipur District Vaishali Fortwin (12MIX 1

ml) containing batch No. 9070238/Keptin 60,

Gulabi and white packets in each carton for

transportation the same interstate without any

valid license and in contravention of S. 8(c) of

the NDPS Act. You thereby committed an

offence.

And that hereby committed an offence under

22(c) of the N.D.P.S. Act punishable of the

Indian Penal code and within any cognizance.

And hereby direct that you be tried by me on

the said charge.”

In the charge, there is no reference to the allegation of

commission of an offence under Section 29 of the NDPS Act.

13. However, it is not necessary for us to go into the question

of whether non-framing of charge under Section 29 of the NDPS

Act has resulted in the failure of justice. The reason is that

there is absolutely no legal evidence on record to show that the

contraband attempted to be transported by accused no.1 by a

railway parcel was supplied to him by the appellant. There is

no evidence of the appellant's participation in any conspiracy.


14. Therefore, the conviction of the appellant cannot be

sustained. Accordingly, we set aside the impugned judgments

and acquit the appellant of all charges against him in Case No.

C2 A 01/2013 before the Court of Special Judge, Vaishali at

Hajipur.

15. Accordingly, the appeal is allowed. As the appellant is on

bail, his bail bonds stand cancelled.

……….……………………..J.

 (Abhay S. Oka)

……………………………..J.

(Augustine George Masih)

New Delhi;

August 22, 2024.

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