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TMI Blog2024 (12) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... been fortified by the law laid down in Suresh Budharmal Kalani v. State of Maharashtra [ 1998 (9) TMI 656 - SUPREME COURT ], wherein it was stated that a co-accused s confession containing incriminating matter against a person would not by itself suffice to frame charge against him. The materials on record would reveal that the investigating agency had not subjected him to medical examination and instead, going by complaint Witness No.23, he smelt the accused. The sole material available against the appellant is the confession statement of the co-accused viz., accused No.1, which undoubtedly cannot translate into admissible evidence at the stage of trial and against the appellant. When that be the position, how can it be said that a prima facie case is made out to make the appellant to stand the trial. There can be no doubt with respect to the position that standing the trial is an ordeal and, therefore, in a case where there is no material at all which could be translated into evidence at the trial stage it would be a miscarriage of justice to make the person concerned to stand the trial. In view of the settled position of law stated and reiterated by this Court, the impugned jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he NDPS Act ). After the investigation, a final report was filed against all the accused and as per the same, the appellant herein (accused No.13) was charge sheeted only for offence under Section 27(b) of the NDPS Act. This appeal is filed by accused No.13 against dismissal of his application for discharge. Hence, we are confining the consideration only qua accused No.13. 3. Heard the learned senior counsel appearing for the appellant and the learned counsel appearing for the State of Tamil Nadu. 4. As noted above, the appellant is charge sheeted only under Section 27(b) of the NDPS Act, though some of the other accused in the said crime are also charged for offences under certain other enactments. 5. Before dealing with the rival contentions, it is only appropriate to refer to the scope of exercise of power under Section 227, Cr.P.C. This Court in P. Vijayan v. State of Kerala Anr. (2010) 2 SCC 398; 2010 INSC 61 , made an in-depth consideration regarding the scope of power under Section 227, Cr.P.C. and held thus: - 10. Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. As is evident from the said Section, the alleged offence is consumption of narcotic drug or psychotropic substance other than those specified in or under clause (a) of Section 27, NDPS Act, and therefore, the question is whether any material is available to charge the appellant thereunder. The contention of the appellant is that he has been arraigned as accused No.13 based on the confession statement of co-accused viz., accused No.1. Certainly, in the absence of any other material on record to connect the appellant with the crime, the confession statement of the co-accused by itself cannot be the reason for his implication in the crime. This view has been fortified by the law laid down in Suresh Budharmal Kalani v. State of Maharashtra (1998) 7 SCC 337; 1998 INSC 364 , wherein it was stated that a co-accused s confession containing incriminating matter against a person would not by itself suffice to frame charge against him. The materials on record would reveal that the investigating agency had not subjected him to medical examination and instead, going by complaint Witness No.23, he smelt the accused. The less said the better and we do not think it necessary to comment upon ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence. 24. Undoubtedly, this Court has in Suresh Budharmal Kalani [Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337], taken the view that confession by a co-accused containing incriminating matter against a person would not by itself suffice to frame charge against it. We may incidentally note that the Court has relied upon the judgment of this Court in Kashmira Singh v. State of M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275]. We notice that the observations, which have been relied upon, were made in the context of an appeal which arose from the conviction of the appellant therein after a trial. The same view has been followed undoubtedly in other cases where the question arose in the context of a conviction and an appeal therefrom. However, in Suresh Budharmal Kalani [Suresh Budharmal Kalani v. State of Maharashtra, (199 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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