2009 (5) TMI 1005 - HC - Indian Laws

Petitioner Discharged in NDPS Case Due to Insufficient Evidence

The Court discharged the petitioner from the case after finding that there was insufficient evidence to establish a prima facie case against him under ... - ISSUES PRESENTED AND CONSIDERED 1. Whether there was prima facie material to proceed against the accused for offences under Section 21 (including 21(c)) and Section 29 of the NDPS Act (possession/transportation/conspiracy) based on the facts narrated by the prosecution. 2. Whether a statement recorded under Section 67 of the NDPS Act, subsequently retracted as involuntary, could be relied upon at the stage of framing charge to form the requisite prima facie opinion against the accused. 3. Whether the factual circumstance that the accused was the driver and sat in the front seat, while the narcotic consignment was placed on the rear seat occupied by a co-accused, suffices to infer conscious possession and/or participation in transportation or conspiracy. ISSUE-WISE DETAILED ANALYSIS Issue 1: Prima facie material to proceed under Section 21/29 NDPS Act Legal framework: Section 21 of the NDPS Act criminalises offences of production, manufacture, possession, transport, etc., of narcotic drugs; the provision is attracted if at least one of the contingencies enumerated therein is satisfied. Section 29 prescribes punishment for similar offences and read together with Section 21 provides substantive penal consequences. At the charge-framing stage the court must ascertain whether material exists to form a grave suspicion or prima facie opinion that the accused committed the offences alleged, not to conduct a full-fledged trial of evidence. Precedent treatment: The court acknowledged established principle that minutiae of evidence are not to be examined at charge stage; a prima facie appraisal suffices. Reliance by the prosecution on authority permitting use of confessional material at charge stage (where voluntary) was noted but examined in light of facts here. Interpretation and reasoning: The Court analysed the prosecution narrative: the accused was driving and seated in the front seat; two polythene bags were transferred from another vehicle to the rear seat occupied by a co-accused; interception occurred before the vehicle moved. The parcels were not handed to or physically touched by the accused driver; the material facts showed delivery to the rear seat passenger. The prosecution's case as framed sought to attract the offence on the basis of possession (and associated transport/conspiracy) yet the contemporaneous facts did not demonstrate that the accused had physical or constructive possession or had transported the consignment. Ratio vs. Obiter: Ratio - at charge stage, evidence must show a reasonable basis to infer at least one statutory contingency (possession/transport) in respect of the accused; where facts show delivery to another occupant and interception before movement, prima facie possession/transport by the driver is not established. Obiter - observations on general standards for prima facie satisfaction at charge stage and distinctions with other fact patterns. Conclusion: The Court concluded there was no prima facie material to proceed against the accused under Section 21 or Section 29 on the facts as narrated, and the charge so framed against him was unsustainable. Issue 2: Reliance on Section 67 statement retracted as involuntary Legal framework: Statements recorded under Section 67 NDPS Act (confessional statements to police) must be voluntary to be admissible and to form a legitimate basis for criminal liability; voluntariness is a precondition for evidentiary use. At charge stage, a voluntary confession can supply material to form a prima facie case, but voluntariness is a question to be tested. Precedent treatment: The Court referred to binding authority that emphasises voluntariness as essential for admissibility of Section 67 statements. The prosecution placed reliance on decisions permitting consideration of confessional statements at charge stage, but the Court treated those authorities as distinguishable where voluntariness and surrounding facts differed. Interpretation and reasoning: The accused's statement (translated) contained admissions that he had seen the co-accused carrying bags earlier and that he knew the co-accused would be delivered something and that he parked the vehicle as instructed. The accused however retracted the statement as involuntary. The Court observed that, absent independent corroboration, the single retracted confession - where voluntariness was not established by the prosecution - cannot legitimately furnish the substantial material required to frame charges. Delay in lodging the retraction was held not fatal given the circumstances; the prosecution failed to demonstrate voluntariness. Ratio vs. Obiter: Ratio - a retracted statement under Section 67, if not shown to be voluntary by the prosecution, cannot form substantial material to sustain a prima facie charge. Obiter - comparative discussion of precedents where voluntariness was shown and thus differently treated. Conclusion: The Section 67 statement could not be relied upon at the charge stage because the prosecution did not prove voluntariness; reliance on authorities allowing confessional material was distinguishable and misplaced on the facts. Issue 3: Conscious possession, transportation and conspiracy - inferences from driver-front-seat fact pattern Legal framework: Criminal liability for possession/transportation requires proof of possession (actual or constructive/conscious) or active participation in transport; conspiracy requires evidence of agreement and concerted action. Physical proximity alone does not conclusively establish possession; the prosecution must demonstrate mens rea and control or knowledge sufficient to infer conscious possession or agreement. Precedent treatment: The Court applied established principles distinguishing mere presence or driving a vehicle from constructive or conscious possession of contraband placed elsewhere in the vehicle; previous authorities permitting inference of possession where control/knowledge established were implicitly referenced and applied by analogy. Interpretation and reasoning: On facts, the accused remained in the front seat; the consignment was placed on the rear seat occupied by the co-accused; interception occurred before movement; no independent witness corroborated the accused's alleged knowledge apart from the retracted Section 67 statement; the co-accused's statement did not implicate the accused. The Court found absence of positive acts, control, or other indicia from which conscious possession or participation in transportation or conspiracy could be reasonably inferred at the prima facie stage. Ratio vs. Obiter: Ratio - mere role as driver and front-seat occupant, without evidence of control, handling, or corroborated admission of knowledge, is insufficient to infer conscious possession, transportation or conspiracy for the purposes of framing charges. Obiter - remarks on possible differing outcomes where additional corroborative facts exist (e.g., delivery to driver, handling of bags, contemporaneous acts showing control). Conclusion: The Court held that the factual matrix did not establish conscious possession, transportation, or conspiracy by the accused; accordingly, charges under the said provisions could not be sustained against him. Final Disposition as to Accused Based on the above analyses, the Court set aside the orders framing charge against the accused and discharged him from the relevant proceedings; the decision to continue proceedings against other co-accused was expressly preserved.