The
first submission of the learned counsel for the appellant is that the
charge framed against the appellant and accused no.1 was only for the offence
punishable under Section 22(c) of the NDPS Act. The allegation, as stated in
the charge, was that on 21st December 2013, the appellant and accused no.1 gave
cartons of Fortwin injections for interstate transportation without any valid
licence and in contravention of Section 8(c) of the NDPS Act. He
submitted that no charge was framed against the appellant for the offence
punishable under Section 29 of the NDPS Act.
He
submitted that the finding100
of the High Court is that the appellant has been prosecuted and convicted for
having sold contraband to an unauthorised120 person, leading to the presumption that
the contraband was sold to be used as an intoxicant. He submitted that
there is no evidence to show that the contraband contained in the consignment
booked by the accused no.1 was purchased from the appellant. He submitted that
the Courts have placed reliance on the statement of the appellant recorded
under Section 67 of the NDPS Act, which is not admissible in evidence as
held by this Court in the case of Toofan200 Singh v. State of Tamil Nadu.
He
submitted that apart from prejudice caused to the appellant on account of
non-framing of proper charge, the allegation of conspiracy under Section 29 of
the NDPS Act was not put to the appellant240
in his statement recorded under Section 313 of the Code of Criminal
Procedure, 1973. He submitted that unless a charge of conspiracy under
Section 29 was proved, the appellant could not be punished under Section
22(c) of the NDPS Act.
The
learned senior counsel appearing for the respondent submitted that the
accused no.3, who examined himself as a defence witness, 300 placed on record invoices issued to the
appellant for sending the Fortwin injections. She submitted that the fact that
30 cartons of Fortwin injections were supplied by accused no.3 at the instance
of the appellant has been established through evidence. She submitted that
there is enough evidence on record to show that the contraband was supplied
to accused no.1 at360 the
instance of the present appellant by the accused no.3.
We
have perused the notes of evidence and considered the submissions. Under
Section 8(c), there is a complete prohibition on possessing and transporting
any narcotic drug or psychotropic substance. In400 this case, the contravention
involves commercial quantity, for which there is no dispute. Section 22
is attracted when, in contravention of any provisions of the NDPS Act, anyone
possesses or transports a psychotropic substance. In the facts of the case, the consignment
was booked by accused no.1, and therefore, he was found to be transporting the psychotropic
substance in contravention of Section 8(c) of the NDPS Act. There is no
allegation against the appellant of transporting the contraband. The consignment480 was booked in the name of the accused
no.1 as per the prosecution case. Therefore, unless it is proved that500 the appellant had supplied the consignment
to accused no.1 or was a part of a criminal conspiracy to commit an
offence under Section 22(c), the appellant cannot be punished.
Perusal
of the evidence of accused no.3, who was examined as a defence witness, shows that
he was carrying on the business of M/s Renuka Medicals in his wife's name.
He stated that he issued invoices for sending Fortwin injections to the
appellant. However, there is no evidence on record to show that accused no.3
procured the contraband that is the subject matter of the prosecution and
handed it over to600 the
appellant or accused no.1.
We
may note that the Trial Court and High Court have relied upon the appellant's
statement under Section 67 of the NDPS Act. Therefore, the appellant's
statement recorded under Section 67 of the NDPS Act is not admissible in
evidence and cannot be read in evidence.
The
High Court, in paragraph 37 of the impugned judgment, has noted that a
statement of the transporter ought to have been recorded to prove that the delivery
of consignment containing contraband was made by accused no.3 to the
appellant's shop. In fact, the person who allegedly transported the700 contraband from accused no.3 to the
appellant was a crucial witness.
However,
the prosecution has withheld the evidence of this720 witness from the Court. Hence, an
adverse inference must be drawn against the prosecution. In the statement of
accused no.1, under Section 67 of the NDPS Act, he stated that he purchased
Fortwin injections from the appellant and one Arun Singh several times.
However, no investigation has been carried out against Arun
Singh.
There
is no recovery from the appellant of any incriminating material. There
is no evidence to show that the contraband tried to be transported by accused
no.1800 by railway parcel was
delivered by or on behalf of the appellant to accused no.1. There is no
evidence of any conspiracy against the appellant. Therefore, the respondent has
not established the offences punishable under Sections 22(c) and 29 of840 the NDPS Act against the appellant
beyond a reasonable doubt.
In
the charge, there is no reference to the allegation of commission of an
offence under Section 29 of the NDPS Act. However, it is not necessary
for us to go into the question of whether non-framing of charge under Section
29 of the NDPS Act has resulted in the900
failure of justice. The reason is that there is absolutely no legal
evidence on record to show that the contraband attempted to be transported by
accused no.1 by a railway parcel was supplied to him by the appellant.
There is no evidence of the appellant's participation in any conspiracy.
Therefore, the conviction of the appellant cannot be sustained.958
