Case Note & Summary
The appellant, Ajay Kumar Gupta, was accused no.2 in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution alleged that on 21st December 2013, a consignment of 30 cartons of pentazocine (Fortwin injections), a psychotropic substance, was being transported illegally from Hajipur to Lucknow by train. The Narcotics Control Bureau (NCB) intercepted accused no.1, Jasvinder Singh, at the parcel house of Hajipur station. Accused no.1 identified the consignment and in his statement under Section 67 of the NDPS Act, claimed he purchased the injections from the appellant and one Arun Singh. The appellant's statement under Section 67 was also recorded, wherein he admitted to supplying the injections obtained from accused no.3, Sanjay Kumar. The Special Court convicted the appellant under Sections 22(c) and 29 of the NDPS Act, sentencing him to 10 years rigorous imprisonment and a fine of Rs. 1,00,000/-. The High Court confirmed the conviction. The Supreme Court allowed the appeal, setting aside the conviction. The Court held that the appellant's statement under Section 67 was inadmissible as a confessional statement following the decision in Tofan Singh v. State of Tamil Nadu. There was no evidence that the appellant transported the contraband or that the consignment was supplied by him to accused no.1. The prosecution withheld the crucial transporter witness, leading to an adverse inference. No charge was framed under Section 29 for conspiracy, causing prejudice. The Court concluded that the prosecution failed to prove the offences beyond a reasonable doubt.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 67 Statement - Inadmissibility - Confessional statement recorded under Section 67 of NDPS Act cannot be used as evidence in trial as per Tofan Singh v. State of Tamil Nadu - Held that such statement is inadmissible and cannot be relied upon for conviction (Paras 9-10). B) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 22(c) and Section 29 - Conspiracy - Absence of Evidence - No evidence that appellant supplied contraband to co-accused or was part of conspiracy - Prosecution withheld crucial transporter witness - Adverse inference drawn - Held that offences not proved beyond reasonable doubt (Paras 7-11). C) Criminal Procedure - Charge Framing - Section 29 NDPS Act - No charge framed for conspiracy - Prejudice to appellant - Held that conviction under Section 29 without charge is unsustainable (Paras 3, 12).
Issue of Consideration
Whether the conviction of the appellant under Sections 22(c) and 29 of the NDPS Act is sustainable based on the evidence on record, particularly in light of the inadmissibility of the statement recorded under Section 67 of the NDPS Act.
Final Decision
Appeal allowed. Conviction of appellant under Sections 22(c) and 29 of NDPS Act set aside. Appellant acquitted of all charges.
Law Points
- Section 67 statement inadmissible as confessional statement
- adverse inference for withholding crucial witness
- no evidence of conspiracy or supply
- charge not framed under Section 29
