'Statement Under S.67 NDPS Act Inadmissible' : Supreme Court Sets Aside Conviction Of Medical Shop Owner

The Supreme Court on Thursday (Aug. 22) set aside the conviction of an accused under the Narcotic Drugs and Psychotropic Substances Act after the prosecution failed to establish that the Appellant/accused conspired in the transportation of a psychotropic substance.

The case related to the seizure of pentazocine, a psychotropic substance, which was being transported as a railway parcel. The Narcotics Control Bureau apprehended accused no.1, who booked the consignment. The appellant before the Supreme Court was the accused no.2, a person running a medical store, who allegedly sold the contraband. 

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/-.

The conviction of the accused was based on the statements recorded under Section 67 of the NDPS Act. It was stated by accused no.1 in his Section 67 statements that he used to purchase the contraband from the appellant, and the appellant in his Section 67 statement stated that accused no.1 came to his shop and demanded 40 cartons of Fortwin injections.

The conviction of the appellant has been confirmed by the High Court by the impugned judgment, following this an appeal was preferred before the Supreme Court.

Before the Supreme Court, it was contended by the appellant that there was no evidence on record to show that the contraband contained in the consignment booked by the accused No. 1 was purchased fromhimt. He submitted that the reliance on the statement of the appellant recorded under Section 67 of the NDPS Act, is not admissible in evidence as held by the Supreme Court in the case of Tofan Singh v. State of Tamil Nadu reported in (2021) 4 SCC 1.

On the other hand, the Respondent contended that the fact that 30 cartons of Fortwin injections were supplied by accused no.3 at the instance of the appellant has been established through evidence as there were invoices that substantiated the transaction.

Finding force in the appellant's contention, the bench comprising Justices Abhay S Oka and Augustine George Masih observed that since the consignment was booked by accused no.1, and, he was found to be transporting the psychotropic substance in contravention of Section 8(c) of the NDPS Act, therefore it can't be said that the appellant conspired in the transportation of the contraband.

“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.”, the Judgment authored by Justice Abhay S Oka said.

Also, the Court refused to consider the statements recorded under Section 67, noting that the statements so recorded cannot be used as a confessional statement in the trial for an offence under the NDPS Act.

Another lacuna highlighted by the Court was of non-examination of the witness who allegedly transported the contraband from accused No. 3 to the appellant.

“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 prosecution”, the court said.

The upshot of the discussion was that since there was no legal evidence on record to show that the contraband attempted to be transported by accused no.1 by a railway parcel supplied to him by the appellant, the Court held that “there is no evidence of the appellant's participation in any conspiracy.”

Accordingly, the Appeal was allowed, and the impugned judgment convicting the Appellant was set aside.

Appearance:

For Appellant(s) Mr. NR Elango Senior Advocate, Sr. Adv. Mr. Vivek Singh, AOR Mr. Rahul Arya Adv, Adv. Mr. Agilesh Kumar S, Adv. Mr. Aswin Prasanna AS, Adv. Mr. Deepak GR, Adv. Mr. Arjun A, Adv. Mr. Abhishek Gupta, Adv. Mr. Ritik Dwivedi, Adv. Mr. M Vishal Sundaramughan, Adv.

For Respondent(s) Mrs. Aishwarya Bhati, A.S.G. (NP) Mrs. Sonia Mathur, Sr.Adv. Mr. Rajat Nair, Adv. Mrs. Ruchi Kohli, Adv. Mr. K Parmeshwar, Adv. Mr. Jitender Kr.Tripathi, Adv. Ms. Ronika Tater, Adv. Ms. Shubhi Bhardwaj, Adv. Ms. Madhumitha Kesavan, Adv. Mr. Dipenshu Krishan, Adv. Mr. Nikhil Chandra Jaiswal, Adv. Mr. Arvind Kumar Sharma, AOR

Case Title: AJAY KUMAR GUPTA VERSUS UNION OF INDIA, CRIMINAL APPEAL NO. 878 OF 2019

Citation : 2024 LiveLaw (SC) 888

Click here to read/download the judgment