Conscious possession under the NDPS Act requires supporting material; a retracted Section 67 statement cannot stand without voluntariness.

For prosecution under the NDPS Act, the material must establish conscious possession or participation in the prohibited transportation of narcotics. On the facts stated, the petitioner was driving the car but the contraband was moved to the rear seat occupied by a co-accused, and there was no physical control over the heroin or independent evidence of participation. The petitioner's Section 67 statement was retracted and its voluntariness was not established, so it could not be relied upon. The charge was therefore held unsustainable, the framing order was set aside, and the petitioner was discharged.

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Issues: Whether the order framing charge under the Narcotic Drugs and Psychotropic Substances Act, 1985 could be sustained against the petitioner in the absence of material showing conscious possession or transportation of the heroin, and whether the petitioner's statement under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 could be relied upon despite retraction.

Analysis: The prosecution case itself showed that the petitioner was driving the car and remained seated in the front seat, while the contraband bags were transferred to the rear seat occupied by a co-accused. The vehicle was intercepted before it moved, and the petitioner was not shown to have physical control over the bags or the heroin. On those facts, the petitioner could not be said to be in conscious possession of the narcotic substance or to have transported it. As to the statement under Section 67, the petitioner had retracted it, and the record did not establish that it was voluntary. The only incriminating part attributed to the petitioner was the alleged awareness that drugs were to be delivered to the co-accused, which was not supported by independent evidence.

Conclusion: The charge was not sustainable against the petitioner, and the order framing charge was set aside. The petitioner stood discharged.

Ratio Decidendi: For prosecution under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the material must show conscious possession or participation in the prohibited act, and a retracted Section 67 statement cannot be relied upon unless voluntariness is established.

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