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TMI Blog2024 (8) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 Fort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses, sells, purchases, transports, imports inter - 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. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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