2024 (8) TMI 1048 - SC - Indian Laws

Prosecution for the offences punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 - illegal transport of pentazocine, a psychotropic substance, from Hajipur to Lucknow by train for being sold in the market as an intoxicating item - HELD THAT - 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 conspiracy to commit an offence under Section 22(c), the appellant cannot be punished. 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. 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 - In the charge, there is no reference to the allegation of commission of an offence under Section 29 of the NDPS Act. However, it is not necessary 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. The conviction of the appellant cannot be sustained - the impugned judgments set aside and the appellant is acquited of all charges against him - appeal allowed.

Summary

Issues:
1. Prosecution under the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Conviction for offences under Section 22(c) and Section 29 of the NDPS Act.
3. Admissibility of appellant's statement under Section 67 of the NDPS Act.
4. Allegation of conspiracy under Section 29 of the NDPS Act.
5. Evidence of contraband supply and involvement in criminal conspiracy.
6. Non-framing of charge under Section 29 of the NDPS Act.
7. Legal evidence for conviction and failure of justice.

Analysis:
The appellant, accused no.2, was prosecuted under the Narcotic Drugs and Psychotropic Substances Act, 1985, for his involvement in the illegal transportation of pentazocine. The prosecution's case was based on intercepting accused no.1, who identified the consignment booked from a railway parcel house containing pentazocine. The appellant's statement under Section 67 of the NDPS Act revealed his involvement in supplying Fortwin injections to accused no.1 through another accused, accused no.3. The Special Court convicted the appellant under Section 22(c) and Section 29 of the NDPS Act, which was upheld by the High Court.

The appellant contended that the charge framed against him did not include the offence under Section 29 of the NDPS Act. He argued that reliance on his statement under Section 67 was improper, citing the Tofan Singh case where such statements were deemed inadmissible. The appellant further claimed that the allegation of conspiracy under Section 29 was not put to him during his statement under Section 313 of the CrPC.

The respondent argued that evidence, including invoices issued by accused no.3, established the supply of contraband by the appellant to accused no.1. However, the evidence failed to conclusively prove the appellant's direct involvement in the supply chain or criminal conspiracy.

The Court analyzed the provisions of Sections 22(c) and 29 of the NDPS Act, emphasizing the need for legal evidence to establish possession or transportation of psychotropic substances and abetment or conspiracy. The Court noted the absence of direct evidence linking the appellant to the supply of contraband and the lack of proof of his participation in any conspiracy.

Ultimately, the Court found that the prosecution failed to establish the charges against the appellant beyond a reasonable doubt. The non-framing of a charge under Section 29 was deemed irrelevant due to the lack of legal evidence connecting the appellant to the offences. Consequently, the Court set aside the conviction, acquitted the appellant, and canceled his bail bonds.