Judgment Rajendra Saxena, J.-This revision has been preferred against the order dt. 4-2-94, whereby the learned Special Judge, NDPS Cases (Sessions Judge), Jaisalmer ordered for framing charge against the accused petitioner for the offence Under Section 29 read with Sections 21 and 22, NDPS Act, 1985(in short, ‘the Act’). 2. Briefly the relevant facts for disposal of this revision petition are that on receiving a credible information that Charas/heroin will be brought from some area falling within the jurisdiction of Police Station Sam and that the same will be transported to Jodhpur, the police party laid Nakabandi? near village Shipla in the night of 30th July, 1987. At about 11.15 p.m., one Jonga Jeep was sighted, which was coming from a kachha route. That jeep was stopped, wherein co-accused Tannerao Singh along with some other person was sitting; that Jonga Jeep was driven away towards Jaisalmer. Thereafter at about 11.25 p.m., another Jonga Jeep came through Kachha route, which did not stop despite the signal given by the police party and crossing the barriers, erected by putting smoulders went away with a high speed. The police party chased the said Jonga Jeep and also flashed wireless message to the S. P., Jaisalmer. It is alleged that on the night intervening 30th and 31st July, 1989 at about 12.30p.m. near village Bhojka, the police party saw three persons alighting from the said Jonga Jeep, who made good their escape under the cover of darkness. However, one of those persons was identified by the police party, who was co-accused Kan Singh. At the same time, the Superintendent, Customs Range Jaisalmer along with his party also,’ reached there. The said Jonga Jeep was searched, wherein 19 bags having 717 packets containing 754.80 kgms. of Charas were found. Samples of Charas therefrom were taken and those were sealed. The consignment of contraband Charas was also seized and sealed. It is alleged that the accused persons absconded and could not be arrested. The said Jonga Jeep was searched, wherein 19 bags having 717 packets containing 754.80 kgms. of Charas were found. Samples of Charas therefrom were taken and those were sealed. The consignment of contraband Charas was also seized and sealed. It is alleged that the accused persons absconded and could not be arrested. It is the case of the prosecution that on 2-5-89, co-accused Kan Singh and on 3 1-5-89 co-accused Bachaya and Bheru Singh in their respective statements under Section 108, Customs Act, 1962 and under Section 67 of the Act recorded by the Superintendent, Customs, Jaisalmer disclosed that the aforementioned Charas was purchased by co-accused Tan Singh and Allah Bux, the brother of co-accused Bachaya and that the same was to be delivered to petitioner Kishan Singh; that on 30-7-87, co-accused Tanerav Singh and Kan Singh along with the petitioner had come in a Jonga Jeep in village Pithla; that from there, they went to village Shipla and that Tanerav Singh had asked co-accused Kan Singh, Bheru Singh and Bachaya to go into the jungle near village Shipla, where 4-5 persons along with 6-7 camels carrying bags containing Charas were waiting for them. They further stated that accused Bheru Singh, Bachaya and Kan Singh went to that jungle and loaded the said consignment of Charas in the said Jonga Jeep and that while they were going to deliver the same to petitioner Kishan Singh, they were intercepted and chased by the police party and ultimately, they fled away from the said Jonga Jeep leaving behind the contraband Charas. Petitioner was arrested by the police as late as on 19-6-90. After investigation, on 25-7-90, the police submitted a chargesheet against the petitioner and accused Tanerav Singh, Kan Singh, Bheru Singh, Bachaya Khan and Bhike Khan in the Court of learned CJM, Jaisalmer, who committed the case to the learned Special Judge, NDPS Cases, Jaisalmer, who by the impugned order framed the charge under Section 29 read with Sections 21 and 22 of the Act against the petitioner and under Section 8 read with Sections 21 and 22 of the Act against Section accused Persons. Hence this revision petition. 3. I have heard Mr. Mridul Jain, learned Counsel for the petitioner and Mr. S. M. Singhvi Public Prosecutor at length and carefully perused the record of the lower Court in extenso. 4. Mr. Hence this revision petition. 3. I have heard Mr. Mridul Jain, learned Counsel for the petitioner and Mr. S. M. Singhvi Public Prosecutor at length and carefully perused the record of the lower Court in extenso. 4. Mr. Mridul Jain has vehemently asserted that in this case, except the alleged confessions made by the co-accused Bachaya Khan, Kan Singh and Bheru Singh before the Superintendent, Customs, Under Section 108, Customs Act and Section 67 of the Act, there is not an iota of evidence, even to prima facie show that petitioner had entered into a criminal conspiracy or abetted the other accused persons to transport the said contraband Charas or that the delivery thereof was to be given to him. Mr. Jain has canvassed that these confessional statements made by co-accused persons cannot be read into evidence against the petitioner. He has, therefore, contended that the learned Special Judge has committed an illegality in framing the charge against the petitioner in absence of any legal evidence. 5. Mr. S. M. Singhvi, Public Prosecutor, has submitted that huge quantity of Charas was recovered from the Jonga Jeep, which was being transported by accused Kan Singh, who was identified by the police party on the spot and other co-accused persons Bachaya Khan and Bheru Singh, who were later on arrested and correctly identified during the test identification parade; that express proof of agreement or direct evidence of conspiracy is rarely available and that it should be inferred from the overt acts and conduct of the parties. He has, however, clearly conceded that except the confessional statements of Kan Singh, Bachaya and Bheru Singh recorded by the Superintendent, Customs, there is no other evidence to connect the petitioner with the crime. 6. I havegiven my most anxious and thoughtful consideration to the rival submissions. Section 29 of the Act proclaims that whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under the Act shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of the IPC, be punishable with the punishment provided for the offence. Thus, the abetment may take place either by instigation or conspiracy or by intentional act. Thus, the abetment may take place either by instigation or conspiracy or by intentional act. But for the proof of abetment or conspiracy, there must be joining together two or more persons in the conspiracy and an act of illegal omission or commission of an offence must take place in pursuance thereof Therefore, the actual complicity which precedes the actual commission of an offence by the principal offender either through substantial assistance for the commission of the offence or through some word or conduct which instigated the commission of the offence should be prima facie shown. It is true that formation of conspiracy can be inferred from circumstantial evidence or by conduct and act of-parties because affirmative evidence is not always possible. But for establishing the charge for abetment and criminal conspiracy Under Section 29 of the Act, the prosecution must adduce some independent, corroborative or affirmative legal evidence. 7. It is now no more res integra that the confession by an accused is not a substantive piece of evidence against the co-accused person in the same trial. For this, I place reliance on the law laid down in Kashmira Singh vs. State of M. P. A1R1952 SC 159 , 1952 CriLJ839 , [1952 ]1 5CR526 . The Confession of an accused can only be used against the co-accused for leading assurance to any substantive evidence, if there be any, to be utilised or acted upon. 8. In Han Charan Kurmi vs. State of Bihar, A1R1964 SC 1184 , 1964 CriLJ344, [1964]6 5CR623 , the Apex Court observed as under: “Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. ….that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence.” 9. The Apex Court has reiterated the same principle in Param Hans Yadav and Sadanand Tripathi vs. State of Bihar. 10. In Gopal Govind Chogale vs. The Asstt. Collector of Central Excise, Maharashtra (1985 Cri LR (Mah) 495) (Bom), it has been held that confessional statement of co-accused cannot be the foundation against other accused even for the purpose of framing of charge. 11. Hencethe confessional statement Under Section 67 of the Act can be admissible in evidence only as against the person, who has made such confession but the same cannot be made the sole basis even for framing charge against other accused person in absence of any independent affirmative evidence. 12. In Superintendent of Customs vs. Bhanabhai Khalpathai Patel A1R1992 SC 1583, 1992 CriLJ 2516, 1995(76) ELT 508 (SC), (1993) 2 GLR 1045 , JT 1992 (2) SC 305, 1993 Supp (1) SCC 475, it has been made clear that the statement of the accused given before the Customs Officer cannot be relied upon to corroborate the evidence of co-accused, who has turned as a prosecution witness. It was held that the conviction based solely on such a statement was not sustainable. 13. In theinstant case, co-accused Kan Singh, Bachaya and Bheru Singh made confessional statements Under Section 108 Customs Act and Section 67 of the Act in. May, 1989 i.e. after about one year and ten months of the alleged incident when the contraband charas was seized. The petitioner Kishan Singh was arrested on 19-6-90, bat the 1.0. did not care to arrange for his test paade. Thus, he was not identified by any witness. There is not a fringe of evidence collected by the 1.0. even to prima facie show that the seized Charas belonged to the petitioner or it was being transported for giving its delivery to him. Again, there is no evidence that on 30-7-87, the petitioner was present in the Jonga Jeep, which was being driven by co-accused Tanerav Singh and was stopped by the police party; The seized Jonga Jeep also did not belong to the petitioner. Again, there is no evidence that on 30-7-87, the petitioner was present in the Jonga Jeep, which was being driven by co-accused Tanerav Singh and was stopped by the police party; The seized Jonga Jeep also did not belong to the petitioner. On the other hand, it was registered in the name of co-accused Bhike Khan. The name of the petitioner also does not find mention either in the FIR or in any of the statements of the prosecution witnesses. Thus, except the confessional statements of the aforesaid three accused persons, there is not a shred of direct or indirect evidence from which it can be inferred even prima facie that the accused petitioner had entered into a criminal conspiracy with the other co-accused persons or had abetted them to possess/transport the contraband charas. 14. A bare perusal of the impugned order un-mistakably reveals that the learned Special Judge has solely relied on the confessional statements of the co-accused Kan Singh, Bachaya Khan and Bheru Singh, which is not at all a legal or substantive evidence as against the petitioner, for framing the charge. He has, thus, committed an illegality in relying on an inadmissible evidence against the petitioner. Hence, the charge framed against the accused petitioner for the offence Under Section 29 read with Sections 21 and 22 of the Act cannot be sustained. 15. In the result, this revision petition is allowed and the order dated 4-2-94 qua the petitioner Kishan Singh and the charge framed against him for the offence Under Section 29 nw Sections 21 and 22 of the Act are hereby set aside and he is hereby discharged of the said offence. The record of the lower Court be immediately sent back to the learned Special Judge, NDPS Cases, Jaisalmer, who is directed to expedite the trial of this old case.