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.
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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