ORDER 1. This order shall govern the disposal of Criminal Revision No.843/2012 (Idu Khan v. Union of India) and Criminal Revision No.844/2012 (Surendra Singh v. Union of India), arising out of commom order dated 26.7.2012 passed by learned Special Judge, Bhind in Case No.1/2011 (NDPS). 2. Both the petitioners have filed these petitions against the order dated 26.7.2012 passed by learned Special Judge, Bhind in Case No.1/2001 (NDPS) whereby the charges for the offence punishable under section 8(c) read with section 29, 15(c) read with section 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for brevity NDPS Act) have been framed against petitioner (Idu Khan) and in addition to these charges, additional charge for the offence under section 26 of NDPS Act against Surendra Singh has been framed by learned trial Court. 2A. The brief facts of the case are that the officers of respondent-Narcotic Bureau on an information that petitioner Shiv Shankar Agrawal is involved in illicit trade of poppy straw (Doda Chura) at Malanpur Industrial Area of District Bhind, raided the premises of one closed factory and accused Surendra Singh was found in the premises from whose possession poppy straw powder weighing 4202.940 kg. was seized and licence was also seized from Surendra Singh. On information given by Surendra Singh, accused Shiv Shankar Agrawal, Idu Khan and other accused persons were arrested and from the possession of Idu Khan some documents regarding Bank account has been seized. Challan has been filed against both the petitioners along with other accused persons on the basis of statement recorded under section 67 of NDPS Act and learned trial Court vide its impugned order dated 26.7.2012 has framed the charges against the petitioners as mentioned hereinabove. 3. Being aggrieved by the impugned order, petitioners have filed these petitions on the grounds that no poppy straw has been seized from their custody and Surendra Singh is licence holder for selling the poppy straw and poppy straw seized from his possession is within the permissible limit of licence issued to him.The order impugned has further been challenged on the ground that the petitioners have been falsely implicated on the basis of statement recorded under section 67 of NDPS Act which is retracted statement in respect of which objections have already been filed by the petitioners immediately when they were produced before learned concerned Judge. 4. 4. Learned counsel for the petitioners has submitted that poppy straw has been seized from the possession of accused Surendra Singh and licence has also been seized from Surendra Singh according to which he was permitted to keep 50 quintal of poppy straw to be supplied to the persons having certificate from the doctor for consumption of poppy straw. It has further been submitted that the quantity of poppy straw seized from the possession of Surendra Singh is within the limit prescribed in the licence, therefore, no offence under any of the provisions of NDPS Act is made out against him. It is further submitted that the allegation against the petitioner Surendra Singh may be the breach of conditions of licence as entries in the stock were not complete. It is further submitted that against the petitioner Idu Khan there is no document on record which connects him with the illicit trade of poppy straw and there is no documentary evidence that he was establishing his connection with Surendra Singh. Although there is no evidence against Surendra Singh that he was involved in illicit trade of poppy straw. 5. Learned counsel for the respondent has submitted that petitioner Surendra Singh was arrested from the premises of factory and out of his total poppy straw there was no entry regarding more than 20 quintal poppy straw in the stock register. The co-accused Idu Khan has been arrested after the statement of accused Surendra Singh recorded under section 67 of NDPS Act and thereafter the confessional statement of petitioner Idu Khan has also been recorded under section 67 of NDPS Act which is admissible in evidence and which is sufficient also for framing charge against the petitioner. Learned counsel for the respondent further submitted that learned trial Court has rightly framed charges mentioned in the petition against the petitioners. Learned counsel for the respondent has cited the judgment of Hon’ble apex Court in the matter of Kanhaiyalal v. Union of India [Appeal (Cri.) No.788/2005, decided on 9th January, 2008], in para 38 of which it has been held that section 67 of the NDPS Act is not the same as a statement made under section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of sections 24 to 27 of the Evidence Act. 6. Learned counsel for the respondent has also cited the judgment of Hon’ble apex Court in the matter of Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic [ AIR 1999 SC 2562 ], in which it has been held that it is well settled that at the stage of framing charge the Court is not expected to go deep into the probative value of the materials on record. It is on the basis of materials on record that the Court could come to the conclusion that the accused would have committed the offence and the Court is obliged to frame the charge and proceed to the trial. 7. Learned counsel for the petitioners has submitted that statement recorded under section 67 of NDPS Act is admissible only when it is not recorded under threat or coercion. The petitioner on his first date of appearance before the Magistrate has given an application that his evidence has been recorded forcefully, therefore, his statement recorded under section 67 of NDPS Act is not admissible as confessional statement and he cannot be convicted on the basis of this statement. In support of his arguments he has cited the judgment of Hon’ble apex Court in the matter of Union of India v. Bal Mukund and others [ (2009)12 SCC 161 ], in which it has been held that conviction based solely on self-confession of co-accused under section 67 of NDPS Act, such conviction should not be based without any independent corroboration especially when retracted. It is further held that confessional statement of co-accused cannot be used as substantive evidence against other co-accused in the absence of independent corroboration. Trial Court convicting all the respondents based on their own statements made under section 67 of NDPS Act, respondent No.3 retracting from his statement but conviction based on statements of respondents 1 and 2, no independent witness examined, the appeal against the acquittal of accused was dismissed. 8. Trial Court convicting all the respondents based on their own statements made under section 67 of NDPS Act, respondent No.3 retracting from his statement but conviction based on statements of respondents 1 and 2, no independent witness examined, the appeal against the acquittal of accused was dismissed. 8. Learned counsel for the petitioners has also cited the judgment of Hon’ble apex Court in the matter of Raju Premji v. Customs, NER, Shillong Unit [ (2009)16 SCC 496 ], in which it has been held that under section 54 of NDPS Act, the burden of proof would not shift if nothing is found in possession of the accused. 9. Learned counsel for the petitioner has also cited the judgment of Hon’ble apex Court in the matter of P. Vijayan v. State of Kerala and another [ (2010)2 SCC 398 ], in which while considering the question of discharge of accused under section 227 of CrPC it has been held that if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion as to the guilt of the accused, the trial Judge will be empowered to discharge the accused and at this stage the trial Judge is not to see whether the trial will and in conviction or acquittal. Further the words “not sufficient ground for proceedings against the accused” in section 227 CrPC clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter intothe pros and cons of the matter or enter into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. 10. In the present case the quantity of poppy straw seized from the accused Surendra Singh is within the limit of licence issued to him. Licence has been produced along with challan which has been issued for the premises from which poppy straw has been seized from accused Surendra Singh on the basis of confessional statement under section 67 of NDPC. In the present case the quantity of poppy straw seized from the accused Surendra Singh is within the limit of licence issued to him. Licence has been produced along with challan which has been issued for the premises from which poppy straw has been seized from accused Surendra Singh on the basis of confessional statement under section 67 of NDPC. No poppy straw has been seized from the possession of petitioner or any other accused or even on the instance of accused Surendra Singh. Licence issued to accused Surendra Singh also contain the conditions including documents regarding transportation of the poppy straw and proforma has been prescribed in the licence itself for details of stock received by the licencee and in the end the condition No.19 has been prescribed according to which if any of the condition of the licence is violated or any provisions of the NDPS Act are violated or any instructions issued by liciencing authority are violated, then licencing authority shall be empowered to receive fine amount not more than Rs.2,000/- for compounding the same instead of cancelling the licence, therefore, breach of any condition of licence is not punishable under NDPS Act if the quantity of poppy straw is within permissible limits of the licence. 11. Section 67 of NDPS Act reads as under : “Power to call for information, etc. -- Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act -- (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case.” 12. From perusal of this section, it is clear that for examining the person under the section the conditions precedent is that there must be contravention of any provision of this Act. From perusal of this section, it is clear that for examining the person under the section the conditions precedent is that there must be contravention of any provision of this Act. Since, there is no contravention of provision of the NDPS Act by Surendra Singh, therefore, his statement under section 67 of NDPS Act cannot be treated as confessional statement and in the absence of contravention of any condition of the Act, the Investigating Officer who has made the seizure, has no power to record statement under section 67 of NDPS Act. 13. Learned counsel for the petitioners has placed reliance on the judgment of Bal Mukund and others (supra), according to which conviction based solely on self-confession of co-accused under section 67 of NDPS Act, on the basis of such conviction should not be based without any independent corroboration especially when retracted. 14. In the present case, the only basis for framing the charge against the petitioner Idu Khan is the confessional statement of accused Surendra Singh. Once Surendra Singh himself has not committed any offence in contravention of any condition of licence and if any breach is there, then also the same is punishable under condition No.19 of the licence itself and co-accused cannot be interrogated under section 67 of the NDPS Act. Further if the statement of petitioner recorded under section 67 of the NDPS Act is treated as voluntary statement, it cannot be a confessional statement against him because there is only contravention of condition of licence and petitioner Idu Khan is not the licence holder, therefore, question of contravention of any condition of licence by the petitioner does not arise. 15. Learned counsel for the respondent has submitted that the doctors have denied the certificate used by the purchasers for consumption of poppy straw and recovered from the accused Surendra Singh and, therefore, there is ample evidence regarding illicit trade of poppy straw. But on perusal of challan papers, it is clear that there is no evidence regarding illicit trade of poppy straw by the petitioner. The accounts of documents seized, does not indicate any illicit trade of poppy straw. But on perusal of challan papers, it is clear that there is no evidence regarding illicit trade of poppy straw by the petitioner. The accounts of documents seized, does not indicate any illicit trade of poppy straw. Further learned counsel for the petitioner has drawn attention of this Court towards the fact that the licencee of poppy straw is not entitled to sell poppy straw anyone but if a person comes with certificate of doctor then he is entitled to purchaser the poppy straw. He has drawn attention of this Court towards the list submitted along with challan by the Investigating Agency which is signed by the Assistant District Excise Officer, District Bhind containing the names of persons to whom licencee can sell poppy straw, therefore, in the licence itself there is no description of any power to sell poppy straw to any person and there is no evidence that licencee Surendra Singh has sold poppy straw to any person other then the persons mentioned in the list. If any of the person has obtained a forged certificate, it is not the duty of the licencee to verify the same considering the fact that their names are there in the list given by Excise Department. 16. Learned counsel for the respondent has submitted that petitioners were detained under provisions of section 3 of NDPS Act and detention order was confirmed by Division Bench of this Court in the matter of Shiv Shankar Agrawal v. Union of India and others [ 2012(1) MPLJ 202 ]. But said order does not cover the commission of offence or framing of charge as the scope of interference in order passed under section 3 of NDPC Act is very limited and such judgment cannot be teated as prima facie case against the accused form framing charge. 17. Considering all these aspects, the order of framing of charges against the co-accused Shiv Shankar Agrawal has already been quashed vide order dated 12.10.2012 passed in Criminal Revision No.636/12 and the case of both the petitioners is also covered by the order dated 12.10.2012. 18. 17. Considering all these aspects, the order of framing of charges against the co-accused Shiv Shankar Agrawal has already been quashed vide order dated 12.10.2012 passed in Criminal Revision No.636/12 and the case of both the petitioners is also covered by the order dated 12.10.2012. 18. On considering the attending facts and circumstances of the case, it is clear that learned trial Court has failed to consider all these aspects of the matter and mechanically framed the charges against the petitioners which are not warranted in the light of judgment of Hon’ble apex Court in the matter of P. Vijayan (supra). Further there is nothing on record connecting petitioners with commission of offence. In the absence of contravention of any provisions of NDPS Act, statement recorded under section 67 of NDPS Act has no value as its recording itself is without authority, therefore, petition is allowed and impugned order dated 26.7.2012 passed in Case No.1/2011 (NDPS) by Special Judge (NDPS Act) Bhind, framing charges for the offence punishable under section 8(c) read with section 29, 15(c) read with sections 29, 26 of NDPS Act so far as it relates to petitioners is set aside and petitioners are discharged from all the charges framed against them. A copy of this order be sent to concerned trial Court for necessary information and compliance.