The Supreme Court acquitted the Appellant of charges under section 22(c) (Punishment for contravention in relation to psychotropic substances) and Section 29 (Punishment for abetment and criminal conspiracy) of NDPS Act observing that “no recovery from the appellant of any incriminating material” and that “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”.
Brief Facts
The Appellant (Accused No. 2) was running a pharmacy shop and had supplied Accused No. 1 with 30 cartons of pentazocine injections. He was accused and convicted under the NDPS Act, 1985, for transporting a consignment of pentazocine. The Narcotic Control Bureau caught Accused No. 1 with the consignment on December 21, 2013, at Hajipur station. The Appellant admitted to supplying the injections but contested the conviction under Section 22 (c) and Section 29 of the NDPS Act.
Issues
- Whether the Appellant was correctly convicted under Section 29 of NDPS Act when only charges framed against him were under Section 22(c).
- Whether the reliance placed by the Trial Court and High Court to Appellant’s confessional statement recorded under section 67 correct, in light of the judicial precedents.
- Whether the charges under section 29 (Punishment for abetment and criminal conspiracy) can be added at a later stage by the trial court when there is no evidence of Appellant’s participation in any conspiracy.
Contentions of Appellant
Per the Appellant, the only charge framed against him was under Section 22(c) i.e. for transporting a psychotropic substance and no charges under Section 29 were framed against him. The appellant further stated that since no charge of conspiracy was framed against him, therefore, his conviction under section 29 was incorrect. The appellant also assailed the finding of the court, wherein it placed reliance on his confessional statement recorded under section 67 to uphold his conviction. He argued that in the light of the law laid down in the case of Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, such statements are barred from being used as evidence.
Contentions of Respondent
Per contra, the Respondents representing the Union argued that there was sufficient evidence to show that the Appellant supplied the contraband to Accused No. 1. Respondents further contended that the evidence on record justified the conviction both under Section 22 (c) and Section 29 of the Act.
Observation of the Court
The Supreme Court noted that the Appellant’s conviction under Section 29 was not correct as there was a lack of substantive evidence linking the Accused to the alleged conspiracy. Regarding the same, the court observed “In the charge, there is no reference to the allegation of commission of an offence under Section 29 of the NDPS Act …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.”
Regarding the culpability under Sections 22(c) and 29 of the Act, the Bench also observed that “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.”
The SC Bench further upheld the law laid down in the case of Tofan Singh (Supra) and held that reliance placed by the Trial Court and High Court to the confessional statement recorded under Section 67 was incorrect as those statements are inadmissible to be read in evidence. Regarding the above, the bench observed, “In paragraph 158 of the decision of this Court in the case of Tofan Singh , this Court held thus: …. 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.” …. Therefore, the appellant's statement recorded under Section 67 of the NDPS Act is not admissible in evidence and cannot be read in evidence …. 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.”
Decision
In conclusion, the Apex Court allowed the Appeal and acquitted the Appellant of all charges, stating that, “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.”
Case Title: Ajay Kumar Gupta v. Union of India
Citation: Criminal Appeal No. 878 OF 2019
Court: Supreme Court of India
Coram: Justice Abhay S. Oka and Justice Augustine George Masih
Date: August 22, 2024
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