[2024:RJ-JD:30766]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 577/2023 Hitesh S/o Ashok Nagori, Aged About 40 Years, H.no. 860 Hiran Magri, Sector-4, Puja Nagar, Udaipur.
----Petitioner
Versus
Union Of India, Through CBN
----Respondent
For Petitioner(s) : Mr. Ravinder Kumar Charan For Respondent(s) : Mr. KS Nahar, Special PP for CBN
HON'BLE MR. JUSTICE BIRENDRA KUMAR Order
26/07/2024
1. Heard learned counsel for the parties.
2. The petitioner has challenged the order directing framing of charge for offences under Section 8 read with 29 of NDPS Act passed on 29.04.2023 in Sessions Case No. 34/2023.
3. A brief background of this case is that on 26.06.2022, medical shop of co-accused Kamlesh was raided and some medicines tramadol etc. were recovered which were containing stupefying substance. On 27.06.2022, statement of Kamlesh was recorded under Section 67 NDPS Act, wherein he stated that he had purchased the recovered medicines from the petitioner. Thereafter on 08.11.2022, the business premises of the petitioner was raided, however, nothing was recovered except bank passbook etc. On 04.12.2022, statement of petitioner under Section 67 NPDS Act was recorded, wherein the petitioner stated that he had supplied those medicines to co-accused Kamlesh.
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3. Besides the aforesaid, there is no other evidence to substantiate that the petitioner was acting with co-accused Kamlesh under a criminal conspiracy or had abetted Kamlesh to commit any offence under the Act.
4. Learned counsel for the petitioner submits that statement recorded under Section 67 NDPS Act has got no legal value after judgment of the Hon'ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu reported in (2021)4 SCC 1. The majority judgment in Tofan Singh (supra) says that "statement recorded under Section 67 NDPS Act is information gathered at antecedent stage prior to commencement of the investigation and is thus not even in the nature of a confessional statement. Hence, question of its being admissible in trial as confessional statement against the accused does not arise. Hence, the same cannot be taken into account in order to convict an accused for this foundational reason. Furthermore, even if it is accepted for the sake of argument that statement obtained under Section 67 NDPS Act amounts to a confessional statement, permitting the same to be admissible against an accused would violate the fundamental rights of such accused and Section 67 of NDPS Act would have to be read down accordingly."
5. In the case on hand, the complaint petition vide para - 20 itself reveals that during investigation premises of the petitioner was raided on 08.11.2022 and statement of the petitioner was recorded on 04.12.2022, apparently during investigation. The complaint petition also reveals that no incriminating substance was found when premises of the petitioner was raided on
08.11.2022.
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Learned counsel for the complainant - respondent contends that the petitioner was in business terms with co-accused Kamlesh and this fact surfaced by obtaining evidence of the call details of the petitioner with that of Kamlesh.
6. There is reference of call between the two, but nature of call is not disclosed, therefore, it cannot be gathered on surmises that the call between the two was in respect of supply of tramadol etc. Moreover, no such medicine was found when the premises of the petitioner was raided by the authorities.
5. Considering the entire material on the record especially the materials referred above, it is evident that there is no legal evidence against the petitioner to compel face trial, nor there is any iota of evidence even to raise suspicion against the petitioner. The court below has acted against material on the record, hence, the impugned order suffers from impropriety.
6. Accordingly, the order of framing charge stands set aside qua the petitioner only and this criminal revision stands allowed.
(BIRENDRA KUMAR),J
10-nitin/-
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