Shiv Shankar Agrawal vs Union of India

A.K. Sharma, J.—Petitioner has filed this revision petition under Sections 397/401 of Cr. PC against the order dated 26-7-2012 passed in Case No, 01/2011 (NDPS) by Special Judge (NDPS Act), Bhind, framing charges for the offence punishable u/s 8 (c) read with Sections 29, 27-A, 15 (c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act". The brief facts of the case are that the officers of respondent on an information that petitioner-Shiv Shankar Agrawal is involved in illicit trade of poppy straw (Doda Chura) at Malanpur Industrial Area of District Bhind, raided the premises of one closed factory and accused Surendra Singh was found in the premises from whose possession poppy straw powder total 4202.940 kg. was seized and on information, licence was also seized from Surendra Singh. On information given by Surendra Singh, petitioner was also arrested and from his possession some documents of Balaji Traders have been seized. Challan has been filed against petitioner. Surendra Singh and other accused persons on the basis of statement recorded u/s 67 of NDPS Act and learned Trial Court vide its impugned order dated 26-7-2012 has framed the charges against the petitioner as mentioned hereinabove.

Being aggrieved by the impugned order, petitioner has filed this petition on the grounds that no poppy straw has been seized from his custody and he has been falsely implicated on the basis of statement recorded u/s 67 of NDPS Act, which is retracted statement regarding which objections have already been filed by the petitioner immediately when he was produced before the concerned Judge.

Learned Counsel for the petitioner has submitted that poppy straw has been seized from the possession of accused Surendra Singh and licence has also been seized from Surendra Singh according to which he was permitted to keep 50 quintal of poppy straw supplied to persons having certificate from the doctor for consumption of poppy straw and the quantity of poppy straw seized from the possession of Surendra Singh is within the limit prescribed in the licence, therefore, no offence is made out. It is further submitted that at the most, there may be breach of conditions of licence as entries in the stock were not complete. There is no documentary evidence on record connecting the petitioner with the illicit trade of poppy straw with accused-Surendra Singh. The vehicle seized from the petitioner does not belong to him as the vehicle is registered in the name of brother of petitioner and the documents seized from the vehicle are in the name of brother of petitioner. Further, there is no documentary evidence that Surendra Singh was an employee of petitioner.

Learned Counsel for the respondent has submitted that petitioner has been arrested as accused after the statement of accused Surendra Singh recorded u/s 67 of NDPS Act, and thereafter, confessional statement of petitioner has been recorded u/s 67 of NDPS Act, which is admissible in evidence and which is sufficient also for framing charge against the petitioner and learned Trial Court has rightly framed charges mentioned in the petition against the petitioner. Learned Counsel for the respondent has cited the judgment of Hon''ble Apex Court in the matter of Kanhaiyalal Vs. Union of India, Appeal (Cri.) No. 788/2005, decided on 9th January, 2008, reported in 2008 (4) M.P.H.T. 311 (SC), in Para 38 of which it has been held that Section 67 of the NDPS Act is not the same as a statement made u/s 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made u/s 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act.

Learned Counsel for the respondent has also cited the judgment of Hon''ble Apex Court in the matter of Umar Abdul Sakoor Sorathia Vs. Intelligence Officer, Narcotic Control Bureau, , in which it has been held that it is well settled that at the stage of framing charge, the Court is not expected to go deep into the probative value of the materials on record. It is on the basis of materials on record that the Court could come to the conclusion that the accused would have committed the offence and the Court is obliged to frame the charge and proceed to the trial.

Learned Counsel for the petitioner has submitted that statement recorded u/s 67 of NDPS Act is admissible only when it is not recorded under threat or coercion. The petitioner, on his first date of appearance before the Magistrate, has given an application that his evidence has been recorded forcefully, therefore, his statement recorded u/s 67 of NDPS Act is not admissible as confessional statement and he cannot be convicted on the basis of this statement. In support of his arguments, he has cited the judgment of Hon''ble Apex Court in the matter of Union of India (UOI) Vs. Bal Mukund and Others, , in which it has been held that conviction based solely on self-confession of co-accused u/s 67 of NDPS Act, such conviction should not be based without any independent corroboration especially when retracted. It is further held that confessional statement of co-accused cannot be used as substantive evidence against other co-accused in the absence of independent corroboration. Trial Court convicting all the respondents based on their own statements made u/s 67 of NDPS Act, respondent No 3 retracting from his statement, but convicted based on statements of respondent Nos. 1 and 2, no independent witness examined, the appeal against the acquittal of accused was dismissed.

Learned Counsel for the petitioner has also cited the judgment of Hon''ble Apex Court in the matter of Raju Premji Vs. Customs NER Shillong Unit, in which it has been held that u/s 54 of NDPS Act, the burden of proof would not shift if nothing is found in possession of the accused.

Learned Counsel for the petitioner has also cited the judgment of Hon''ble Apex Court in the matter of P. Vijayan Vs. State of Kerala and Another, in which while considering the question of discharge of accused u/s 227 of Cr. PC, it has been held that if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion as to the guilt of the accused, the Trial Judge will be empowered to discharge the accused and at this stage, the Trial Judge is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceedings against the accused" in Section 227, Cr. PC clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or enter into a weighing and balancing of evidence and probabilities, which is really the function of the Court, after the trial starts.

In the present case, the quantity of poppy straw seized from the accused Surendra Singh is within the limits of licence issued to him. Licence has been produced alongwith challan, which has been issued for the premises from which poppy straw has been seized from accused Surendra Singh on the basis of confessional statement u/s 67 of NDPS. No poppy straw has been seized from the possession of petitioner or any other accused or even on the instance of accused Surendra Singh. Licence issued to accused Surendra Singh also contains the condition including documents regarding transportation of the poppy straw and pro forma has been prescribed in the licence itself for details of stock received by the licencee and in the end, the condition No. 19 has been prescribed according to which if any of the condition of the licence is violated or any provisions of the NDPS Act are violated or any instructions issued by Licensing Authority are violated, then Licensing Authority shall be empowered to receive fine amount not more than Rs. 2.000/- for compounding the same instead of cancelling the licence, therefore, breach of any condition of licence is not punishable under NDPS Act, if the quantity of poppy straw is within permissible limits of the licence.

Section 67 of NDPS Act reads as under:-

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 provisions of this Act,-

(a) 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;

(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;

(c) examine any person acquainted with the facts and circumstances of the case.

From perusal of this Section, it is clear that for examining the person under the section, the conditions precedent is that there must be contravention of any provision of this Act. Since, there is no contravention of provisions of the NDPS Act by Surendra Singh, therefore, his statement u/s 67 of NDPS Act cannot be treated as confessional statement and in the absence of contravention of any condition of the Act, the Investigating Officer, who has made the seizure, has no power to record statement u/s 67 of the NDPS Act.

Learned Counsel for the petitioner has placed reliance on the judgment of Bal Mukund and others (supra), according to which conviction based solely on self-confession of co-accused u/s 67 of NDPS Act, on the basis of such conviction should not be based without any independent corroboration especially when retracted.

In the present case, the only basis for framing the charge against the petitioner is the confessional statement of accused Surendra Singh. When Surendra Singh himself has not committed any offence in contravention of any condition of licence and if any breach is there, then also the same is punishable under condition No. 19 of the licence itself and co-accused cannot be interrogated u/s 67 of the NDPS Act. Further, if the statement of petitioner recorded u/s 67 of the NDPS Act is treated as voluntary statement, it cannot be a confessional statement against him because there is only contravention of condition of licence by Surendra Singh and petitioner is not the licence holder, therefore, question of contravention of any condition of licence by the petitioner docs not arise.

Learned Counsel for the respondent has submitted that the doctors have denied the certificate used by the purchasers for consumption of poppy straw and recovered from the accused Surendra Singh, and therefore, there is ample evidence regarding illicit trade of poppy straw. But, on perusal of challan papers, it is clear that there is no evidence regarding illicit trade of poppy straw by the petitioner. The accounts or documents seized, does not indicate any illicit trade of poppy straw. Further, learned Counsel for the petitioner has drawn attention of this Court towards the fact that the licencee of poppy straw is not entitled to sell poppy straw anyone but if a person comes with certificate of doctor then he is entitled to purchase the poppy straw. He has drawn attention of this Court towards the list submitted alongwith challan by the Investigating Agency, which is signed by the Assistant District Excise Officer, District Bhind containing the names of persons to whom licencee can sell poppy straw, therefore, in the licence itself, there is no description or any power to sell poppy straw to any person and there is no evidence that licencee Surendra Singh has sold poppy straw to any person other than the persons mentioned in the list. If any of the person has obtained a forged certificate, it is not the duty of the licencee to verify the same considering the fact that their names are there in the list given by Excise Department.

Learned Counsel for the respondent has submitted that petitioner was detained under provisions of Section 3 of NDPS Act and detention order was confirmed by Division Bench of this Court in the matter of Shiv Shankar Agarwal Vs. Union of India and Others, . But said order does not cover the commission of offence or framing of charge as the scope of interference in order passed u/s 3 of the NDPS Act is very limited and such judgment cannot be treated as prima facie case against the accused from framing charge. Learned Trial Court has failed to consider all the aspects of the matter and mechanically framed the charges against the petitioners, which are not warranted in the light of judgment of Hon''ble Apex Court in the matter of P. Vijayan (supra), further, there is nothing on record connecting petitioner with the act of Surendra Singh. In the absence of contravention of any provisions of NDPS Act, statement recorded u/s 67 of NDPS Act has no value as its recording itself is without authority, therefore, petition is allowed and impugned order dated 26-7-2012 passed in Case No. 01/2011 (NDPS) by Special Judge (NDPS Act), Bhind, framing charges for the offence punishable u/s 8 (c) read with Sections 29, 27-A, 15 (c) read with Section 29 of NDPS Act so far as it relates to petitioner is set aside and petitioner is discharged from all the charges framed against him.

A copy of this order be sent to concerned Trial Court for necessary information and compliance.