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2021 DIGILAW 1734 (RAJ)

Sanjay v. Narcotic Control Bureau

2021-09-15

MANOJ KUMAR VYAS

body2021
JUDGMENT 1. This revision petition has been filed against the impugned order dated 02.02.2019 passed by the Special Judge, NDPS Cases, Jaipur City, Jaipur, in Sessions Case No. 1/2019, by which the charges were framed against the petitioners for the offence punishable under Sections 8/20, 8/25 and 8/29 of the NDPS Act. 2. It has been submitted by learned counsel that the accused-petitioners have been arrested in this case alleging that their involvement has been disclosed by the co-accused during the course of investigation. The petitioners have been arrested and charge-sheet has been filed against them on the sole basis of alleged disclosure of the co-accused. Legally, this disclosure is not admissible and cannot be made basis for any prosecution in view of Section 25 of the Indian Evidence Act. The complaint in the present case is not sustainable qua the petitioners. The petitioners have been implicated in this case on the basis of inadmissible evidence. They have been arrested after the recovery of contraband in this matter, therefore, there is no connecting evidence on record against the petitioners. No case is made out against the petitioners for the offence under Sections 8/29 of the NDPS Act because except interrogation of co-accused, no other evidence is available on record and it is settled law that no charge can be framed on the basis of police interrogation as the same is hit by Section 25 of the Indian Evidence Act. The petitioners were not present at the alleged place of incident. No recovery has been made from their conscious possession. The only evidence available against them on record is the confessional statement of co-accused, which is not admissible in law without any supporting corroborative evidence. The charges have been framed in a routine manner. Statement recorded under Section 67 of NDPS Act is not admissible as per the recent judgment of Hon'ble Apex Court rendered in the case of Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 under Section 227 of Code of Criminal Procedure. The charges have been framed in a routine manner. Statement recorded under Section 67 of NDPS Act is not admissible as per the recent judgment of Hon'ble Apex Court rendered in the case of Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 under Section 227 of Code of Criminal Procedure. It is the duty of trial Court to sift and weigh the evidence to find out prima facie ground to frame charges against the accused but the trial Court has framed the charges without taking into consideration the fact that whether any sufficient material is available on record for coming to prima facie conclusion that there are grounds to frame charges against the petitioners. 3. Learned counsel for the petitioners has placed reliance upon the following judgments:- i. Surinder Kumar Khanna v. Intelligence Officer Directorate of Revenue Intelligence (2018) 8 SCC 271 ii. Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra (2008) 10 SCC 394 iii. Dilawar Balu Kurane v. State of Maharashtra (2002) 2 SCC 135 iv. Saurabh Agarwal v. State of Rajasthan (Rajasthan High Court) S.B. Criminal Revision Petition No.2209/2018 Date of Order 24.04.2019 4. Heard and perused the evidence available on record as well as the impugned order dated 02.02.2019. 5. A perusal of the impugned order dated 02.02.2019 reveals that the learned trial Court has considered the statements of the accused under Section 67 of the NDPS Act while coming to a prima facie conclusion that there are sufficient grounds to frame charges against the petitioners. 6. It has been argued by learned counsel for the petitioners that as per the recent pronouncement of Hon'ble Apex Court in Tofan Singh's case (Supra), the statements recorded under Section 67 of the NDPS Act, are inadmissible in evidence and it has also been submitted that apart from the statements recorded under Section 67 of the NDPS Act, there is no other cogent or reliable evidence on record for framing the charges against the petitioners for the alleged offence. 7. 7. Considering the overall evidence available on record as well as submission of counsel for the petitioners that after the pronouncement of Hon'ble Supreme Court in Tofan Singh's case (Supra), the order of framing the charges against the petitioners is not legally sustainable in the eye of law, it is just and proper to remand back the matter to the trial Court with the direction to pass the order afresh after giving opportunity to the parties to make their submissions in the light of judgment rendered by Hon'ble Supreme Court in Tofan Singh's case (Supra). 8. The upshot of the discussion is that the impugned order dated 02.02.2019 is hereby quashed and set aside and the matter is remanded back to the learned trial Court with the direction to pass the order afresh after hearing both the parties, taking into consideration the recent judgment of Hon'ble Supreme Court in Tofan Singh's case (Supra) as indicated above. The learned trial Court is expected to pass the order afresh expeditiously, preferably within a period of three months from the date of receipt of certified copy of this order. 9. The petition stands disposed of accordingly.