Criminal Original Petition filed under Section 482 of the Criminal Procedure Code to call for the records connected with C.C No. 102 of 2003 on the file of the Principal Special Judge, NDPS Cases, Chennai and quash the same.

JUDGMENT:

1. The above Petition has been filed seeking quashing of all further proceedings in C.C No. 102 of 2003 on the file of the Principal Special Judge for NDPS Act cases, Chennai.

2. Originally in C.C No. 2 of 2003, there were nine accused. The case of the respondent was that on receipt of vital information, the respondent Intelligence Officer attached to Narcotic Control Bureau allegedly recovered 15.350 kgs of heroin on 22.9.2002 from the possession of A2 to A6. On 29.2.2002 A7 was arrested. A1-Ranjith Singh Chauhan @ Mansingh and A5-S. Kugadas @ Das are said to have given statements before the NCB officer under Section 67 of the NDPS Act implicating the Petitioner A9 and one Mayilvahanan-A8 in the said offence at Chennai. The Petitioner and Mayilvahanan were lodged in Central prison, Bangalore in connection with another case under NDPS Act in the State of Karnataka. The respondent Investigating Officer approached the Special Court for NDPS Act, Bangalore seeking permission for interviewing the Petitioner herein at Central Prison, Bangalore.

3. It is the contention of the prosecution that the said Mayilvahanan and the Petitioner failed to furnish information to the Investigating Officer as per the orders of the High Court of Karnataka. Neither the Petitioner nor Mayilvahanan were brought to the Court at Chennai. No charges were framed against the Petitioner. The case against the Petitioner herein and the said Mayilvahanan was split up. The trial as against A1 to A7 was proceeded with and all the accused were acquitted by judgment, dated 30.8.2004 Against the judgment of acquittal, the respondent has preferred an Appeal in C.A No. 1147 of 2004, which is pending. The split up case as against the Petitioner herein and the said Mayilvahanan was assigned C.C No. 102 of 2003.

4. The Petitioner contends that the whole case of the prosecution as regards the Petitioner herein rests only on the alleged confession statement given by A1-Ranjith Singh Chauhan @ Mansingh and A5-S. Kugadas @ Das. When the other accused had already faced trial in the split up case and received the verdict of acquittal, the Petitioner cannot be chargesheeted based on the alleged confession statements of A1 and A5 under Section 30 of the Evidence Act.

5. It is further contended that the said Mayilvahanan-A8 filed Crl.O.P No. 3840 of 2005 seeking to quash all further proceedings as against him in C.C No. 102 of 2003 and M. Jeyapaul, J., by order dated 12.4.2006, which is reported in 2006 (2) M.L.J (Crl.) 248, was pleased to quash the proceedings as against A8. It is the contention of the Petitioner that on parity of reasoning, the Petitioner is also entitled to get the benefit of the said order.

6. Mr. B. Kumar, learned Senior Counsel submitted that according to the respondent, the statements under Section 67 of the NDPS Act were recorded from A2 to A6 and A4 Mohammed Saheed Mohamed Ismath and A5-S. Kugadas @ Das in their confession statements have stated that when the said Mayilvahanan-A8 and the Petitioner herein were in the Central prison, they had told him about the availability of narcotic drug with a named person at Mansur in Madhya Pradesh and in this manner A8 and A9 are sought to be implicated in this case. According to the learned Senior Counsel apart from the two statements recorded from A4 and A5, there is no other materials against the Petitioner. Though A8 and A9 were examined by the respondent, no statement under Section 67 of the NDPS Act came to be recorded. According to the learned Senior Counsel since the case as against A1 and A5 had been split up and after trial A1 and A5 had been acquitted, the statement of A1 and A5 cannot be marked or used as evidence in the split up case as against the Petitioner alone. The confession statement of the co-accused could be used against the other accused where there is a joint trial of all the co-accused. Since this basic requirement is lacking in this case, the confession statements of A1 and A5 cannot be marked or used as evidence against the Petitioner herein. He further submitted that the statements of A1 and A5 were also retracted by them later.

7. In support of his contentions, the learned Senior Counsel relied upon the decision of the Apex Court in Suresh Budharmal Kalani Alias Pappu Kalani v. State Of Maharashtra., AIR 1998 SC 3258 and the decision of M. Jeyapaul, J., in Mayil Vahanan v. Intelligence Officer, Narcotic Control Bureau, South Zone, Chennai, 2006 (2) M.L.J (Crl.) 248.

8. The learned Senior Counsel further submitted that since the Petition filed by Mayilvahanan-A8 to quash all further proceedings in C.C No. 102 of 2003 had been allowed by this Court in Crl.O.P No. 3840 of 2005, the Petitioner, who is similarly placed like the other accused, is entitled to get the benefit of the said order.

9. In support of his contention, the learned Senior Counsel relied upon the decision of the learned Single Judge of this Court in Dr. Lakshmanan Prakash v. The State, rep. by its Inspector of Police (Law and Order) G3 Kilpauk Police Station, Chennai-10 and another, 1999 (2) CTC 29.

10. Countering the said submissions, the learned Special Public Prosecutor appearing for the respondent submitted that since the case of the Petitioner was split up for no fault of the respondent, the Petitioner cannot claim immunity under Section 30 of the Evidence Act in as much as the prosecution is entitled to examine A5 in the split up case as a witness in the prosecution case. He further submitted that there is no bar for the prosecution to examine one of the co-accused as regards his confession statement implicating one of the co-accused as the accused has already been acquitted in the case. He further submitted that since the statement under Section 67 of the NDPS Act has been recorded by an Officer, who is not a police officer, the confession statement is not hit by Section 25 of the Evidence Act.

11. In support of his contention, the learned Special Public Prosecutor referred to several decisions, but this Court is referring only to following relevant decisions.

a. Soni Vallabhdas Liladhar and another v. The Assistant Collector of Customs, Jamnagar, AIR 1965 SC 481.

In this decision, the Apex Court has laid down that where statements by the accused persons before the Customs Officers, who must be taken to be persons in authority, were not made on account of any inducement, threat or promise, they would be admissible under S. 24 of the Act. The statements would not be inadmissible under S. 25 of the Act as Customs Officers are not Police Officers.

b. Francis Stanly alias Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram, 2007 (2) SCC (Cri) 618.

In this decision, in paragraph 14, the Apex Court has laid down as under:

“14. It is true that in the present case the confession was made by the accused not before an ordinary Police Officer, but before an officer under Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) who is an officer of the Department of Revenue Intelligence, and it is held by this Court in Raj Kumar Karwal v. Union of India that such a confession is not hit by Section 25 of the Evidence Act.”

12. I have carefully considered the submissions made on either side.

13. It is not in dispute that except the confession statement of A1 and A5 there is no material on record to incriminate the Petitioner herein. The matter has now been pending against the Petitioner even without framing charges against him. Section 30 of the Evidence Act reads as follows:

“Section 30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.— When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.”

(Explanation: “Offence” as used in this Section includes the abetment of or attempt to commit the offence.)

A bare reading of the Section would reveal that joint trial is a pre-requisite to bank on Section 30 of the Indian Evidence Act to draw inspiration from the confession statement of this accused.

14. In AIR 1998 SC 3258 cited supra, in paragraph 6 of its judgment, the Hon'ble Apex Court observed as under:

“6. Thus said, we may turn our attention to the confession made by Dr. Bansal and Jayawant Suryarao. Under Section 30 of the Evidence Act a confession of an accused is relevant and admissible against a co-accused if both are jointly facing trial for the same offence. Since, admittedly, Dr. Bansal has been discharged from the case and would not be facing trial with Kalani his confession cannot be used against Kalani. The impugned order shows that the Designated Court was fully aware of the above legal position but, surprisingly enough, it still decided to rely upon the confession on the specious ground that the prosecution was not in any way precluded from examining Dr. Bansal as a witness in the trial for establishing the facts disclosed in his confession. This again was a perverse approach of the Designated Court while dealing with the question of framing charges. At that stage the Court is required to confine its attention to only those materials collected during investigation which can be legally translated into evidence and not upon further evidence (dehors those materials) that the prosecution may, adduce in the trial, which would commence only after the charges are framed and the accused denies the charges. The Designated Court was, therefore, not at all justified in taking into consideration the confessional statement of Dr. Bansal for framing charges against Kalani.”

15. In 2006 (2) M.L.J (Crl). 248, M. Jeyapaul, J., after referring to the decision of the Apex Court reported in AIR 1998 SC 3258, has observed as under:

“18. In this case, the charge has not been framed as against the Petitioner herein. The Court will have to consider as to whether there is any available material on record to frame the charge as against the Petitioner. In the Judgment of the Hon'ble Supreme Court referred to above, it has been categorically observed that “the Court is required to confine its attention only to those materials collected during the course of investigation, which can be legally translated into evidence and not upon further evidence that the prosecution may adduce in the trial which would commence only after the charges are framed and the accused denies the charges.”

16. In 1999 (2) CTC 29, M. Karpagavinayagam, J., as His Lordship then was, has held as under:

“33. Therefore, under these circumstances, the materials on record collec-ted by the respondent-Police placed before the Trial Court are, in my view, would not be sufficient to fix the criminal liability with reference to the criminal negligence as against the Petitioner (A3). Consequently, the proceedings as against the Petitioner (a3) are liable to be quashed.

34. Similarly, in my view, Dr. Rajagopal (A2) under whose supervision, A3-Dr. Prakash commenced operation also would stand in the same footing and consequently, the proceedings as against A2 are also to be quashed. Though A2 has not filed any application, the benefit accrues to A3 would also be applicable to A2. Therefore, the proceedings, as indicated earlier, as against A2 and A3 are hereby quashed.”

17. It has to be pointed out that the learned Special Public Prosecutor has not produced any decision of the Apex Court distinguishing or contrary to the decision reported in AIR 1998 SC 3258 and the decisions relied upon by the learned Special Public Prosecutor are only to the effect that the confession statement recorded under Section 67 of the NDPS Act are not hit by Section 24 or 25 of the Evidence Act and consequently, the same may be used against the maker of the statements and it also can be used against the co-accused. But before such confession statement of the co-accused could be used against the co-accused, the condition precedent as laid down under Section 30 of the Evidence Act viz., both the accused should face trial joinly should be satisfied. It is not in dispute that the charges have not yet been framed against the Petitioner herein. It is also admitted that as against the quashing of the proceedings against Mayilvaganan-A8, no further proceedings have been taken by the respondent and as such the said order has become final.

18. The learned Special Public Prosecutor is unable to repel the contention of the learned Senior Counsel that the Petitioner, who stands in the same footing as A8-Mayilvaganan is also entitled to get the benefit of the order passed in favour of A8-Mayilvahanan.

19. Admittedly, except the retracted statement of the co-accused, there is no other material available on record against the Petitioner herein. It is also admitted that the trial of the case was split up as against the Petitioner and the trial was conducted only in respect of A1 to A7 and all of them were acquitted of all the charges. But it is no doubt true that the Appeal against the acquittal is pending. Therefore, as per the provisions contained in Section 30 of the Evidence Act, as the Petitioner had admittedly not been jointly tried along with the other accused, the statement recorded from the co-accused cannot be used as against the Petitioner. If the statement of the co-accused is excluded, no other material is available on record to frame charge as against the Petitioner. The ratio laid down by the Apex Court in Suresh Budharmal Kalani v. State of Maharashtra (supra), and the ratio laid down by this Court in Mayil Vahanan v. Intelligence Officer, Narcotic Control Bureau, S.Z, Chennai (supra), squarely apply to the facts of the case. If the above said ratio is applied to the facts of the case, the contention of the learned Senior Counsel for the Petitioner has to be accep-ted. When there is no other material avai-lable on record to frame any charge against the Petitioner, if the Court below is permitted to continue with the proceedings as against the Petitioner, the entire proceedings will be an exercise in futility. For the above said reasons, the Criminal Original Petition is allowed and all further proceedings in C.C No. 102 of 2003 on the file of the Principal Special Judge, NDPS Cases, Chennai are quashed. Connected M.P is closed.