SUPREME COURT ASSESSES THE ADMISSIBILITY OF CONFESSIONAL STATEMENTS AND THE BURDEN OF PROOF UNDER THE NDPS ACT

INTRODUCTION

The case of Ajay Kumar Gupta v Union of India, vide Order dated 22/08/2024 is a Criminal Appeal filed in the Hon’ble Supreme Court of India. The present matter is pertaining to the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act).

FACTS

The Prosecution, i.e. the Narcotics Control Bureau (NCB) received a secret information regarding illegal transportation of a consignment of pentazocine (a psychotropic substance). Such illegal transportation was done via train from Hajipur to Lucknow and was being sold in the market as a drug.

The NCB, on its surveillance near the parcel house of Hajipur station, intercepted Accused No. 1 while he was identifying the consignment. During the search of the consignment by the NCB, 30 cartons of pentazocine (Fortwin injections) manufactured by Ranbaxy company were found.

As per the Section 67 of the NDPS Act, a statement of the Accused No.1 was recorded. The Accused No. 2 admitted that he used to purchase medicines from Patna and sell them in Lucknow. He claimed that he bought the Fortwin injections from the Appellant- Accused No. 2.

The Appellant’s statement under Section 67 of the NDPS Act revealed that he ran a medical shop in Patna and sold the Fortwin injections to Accused No. 1. He obtained these injections from Accused No. 3, who also ran a medical store.

The Special Court convicted the Appellant- Accused No. 2, under Section 22(c) and Section 29 of the NDPS Act, sentencing him to 10 years of rigorous imprisonment and a fine of ₹1,00,000. The conviction of the Appellant was further confirmed by the High Court through the impugned judgement.

The Appellant approached the Hon’ble Supreme Court of India. It was alleged that the Appellant was selling the Fortwin injections without valid license and in contravention to the provisions of Section 8(c) of the NDPS Act. The Appellant submitted that there is no evidence to show that the contraband contained in the consignment booked by Accused No. 1 was purchased from him.

The Appellant further submitted that the statement recorded by the Accused No. 1 under Section 67 of the NDPS Act is not admissible as evidence. The Appellant stated that unless a charge of conspiracy under Section 29 was proved, the Appellant could not be punished under Section 22(c) of the NDPS Act.

ISSUES

1) Whether the statement of the Appellant recorded under Section 67 of the NDPS Act is admissible in evidence.

2) Whether the Appellant was involved in a conspiracy under Section 29 of the NDPS Act.

3) Whether the Appellant was prejudiced by the non-framing of charges under Section 29 of the NDPS Act.

 

ANALYSIS

The Hon’ble Court noted that according to its decision in Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1], statements made to NCB officers under Section 67 of the NDPS Act are not admissible as they are considered confessions to a police officer, which are barred under Section 25 of the Indian Evidence Act.

The Hon’ble Court observed that there was no direct evidence proving that the Appellant was involved in the transportation of the contraband or in any conspiracy. The evidence relied upon was insufficient as there was no material recovery from the Appellant, and the prosecution failed to present the transporter who allegedly delivered the contraband from Accused No. 3 to the Appellant.

The charge framed against the Appellant was only under Section 22(c) of the NDPS Act, and not under Section 29. The Hon’ble Court found that the absence of a proper charge and the lack of evidence of conspiracy meant that the conviction could not stand.

 

JUDGMENT:

The Supreme Court set aside the conviction of the Appellant under Sections 22(c) and 29 of the NDPS Act. The Appellant was acquitted of all charges as the Prosecution failed to prove the case beyond a reasonable doubt.

The Court allowed the Appeal, cancelled the Appellant’s bail bonds, and acquitted him of all charges.

Note:

Following provisions of the NDPS Act are referred in this judgement:

Section 8. Prohibition of certain operations.—No person shall—

(a) cultivate any coca plant or gather any portion of coca plant; or

(b) cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:

Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:

[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]

Section 22. Punishment for contravention in relation to psychotropic substances.—

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,–

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees or with both;

(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

Section 29. Punishment for abetment and criminal conspiracy. —

(1) Whoever abets or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, 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 Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.

(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which—

(a) would constitute an offence if committed within India; or

(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.

Section 67. 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 provision of this Act,—

• 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;
• require any person to produce or deliver any document or thing useful or relevant to the enquiry;
• examine any person acquainted with the facts and circumstances of the case.

Ashita

Associate

The Indian Lawyer & Allied Services.