Arif Khan Vs. the Central Bureau of Narcotics - Court Judgment

Mohd. Yamin, J.

1. This is a revision petition against the charge which has been levelled against the petitioner.

2. I have heard learned Counsel for the petitioner and learned counsel for Central Bureau of Narcotics.

3. Briefly stated, on 1.7.1999 informer met Vijay Singh, Superintendent, Central Bureau of Narcotics, Jaipur and wanted to come back at 6.00 p.m. with a definite information. There was information that a person may come with heroin. Rakesh Bhargava and Laxman Kataria went with the informer in a Government vehicle and saw the site. They came back at 7.30 p.m. and narrated the story to the Superintendent. Information was noted down and was communicated to Assistant Commissioner, Central Bureau of Narcotics Kota. On the basis of this information, a party was formed which reached Rambagh Circle at about 11.30 p.m. Two independent witnesses Bhanwar Singh and Gendi Lal were also called. The information was that one Amir Khan may pass through this way on a scooter along with 1 Kg. heroin. It is alleged that at about 11.10 p.m. the said person came on the scooter. Laxman Katraia stopped him and enquired. The man was Amir Khan. An attach was found on the scooter. After giving notice under Section 50 of the N.D.P.S. Act search was conducted and 1.10 kg. heroin was found. The samples were then taken and heroin was seized. It is further stated that statement of Amir Khan was recorded on the basis of which he was arrested and a case under the N.D.P.S. Act was registered. Amir Khan was admitted his guilt and told that he was taking the heroin to sell it to petitioner. On the basis of this information by Amir Khan, co-accused petitioner Arif Khan was also arrested. It is alleged that the search of the house of petitioner was taken but no incriminating articles were found. However, challan was submitted. By the impugned order dated 23.11.2000, charge under Section 8/29 of the N.D.P.S. Act was levelled against the petitioner.

4. Learned counsel for the petitioner submitted that there is no evidence against the petitioner and that he cannot be charged on the basis of statement of co-accused. He has relied on various judgments including my own judgment reported in (1999) (1) RCC 361 Pradeep Kumar Jain v. State of Rajasthan, in which it was held that in absence of any independent evidence, statement of co-accused cannot be read against revisionist and charge was quashed. Learned counsel for the petitioner also relied on Kishan Singh v. State of Rajasthan 1995 Cr.L.R. (Raj.) 176, in which it was held that charge framed on the basis of confessional statement of co-accused cannot be sustained as the same was not sustainable as the learned Judge relied upon inadmissible evidence to frame charge. He also cited Satish Mehra v. Delhi Administration 1996 (3) Crimes 85 (SC), in which it was held that when Judge is certain that there is no prospect of case ending in conviction, valuable time of Court should not be wasted for holding a trial only for purpose of formally completing procedure to pronounce conclusion on a future date.

5. On the other hand, Mr. Bagri, learned Counsel for the Central Bureau of Narcotics submitted that it is an anti-social offence and when the co-accused is inculpating himself and the petitioner, his evidence can be read against the petitioner. He drew my attention time and again to the statement of co-accused and has also submitted that complainant has not been made a party to the revision petition and that scope of revision is very limited and that the statement of co-accused is admissible as substantive piece of evidence against the petitioner, hence the revision petition should be dismissed. He has also contended that provision of Section 67 of the N.D.P.S. Act and Section 108 of the Customs Act are similar and in case of Customs Act, the Supreme Court in Naresh J. Sukhawani v. Union of India : 1996(83)ELT258(SC) considered the admissibility and nature of the confessional statement of a co-accused and held that under the Customs Act the statement could be used s substantive evidence connecting the petitioner accused who was exporting foreign currency out of India. In view of this according to Mr. Bagri, the charge may be maintained. He also relied on Bhagwan Lai v. State of Rajasthan Supp. RCC 1997 page 54 in which it was held that the question of sufficiency of evidence can only be considered by the court at the end of the trial and not at the stage of framing charge. But in the same ruling, it has been held, while discussing Section 67 of the N.D.P.S. Act, that the confessional statement was admissible in evidence only against person who makes it and not against any other person. Mr. Bagri says that this observation of the judgment is not to be accepted. But this argument has no force as the law is that statement of one accused cannot be read against another accused. The judgment of the Supreme Court in Naresh J. Sukhawani (supra) related to Customs Act in which an accused was passing off foreign currency out of India and in those circumstances it was held that the statement of co-accused under Section 108 of the Customs Act incriminating himself and the accused who was passing off foreign currency out of India could be used. According to Mr. Bagri, this view is binding law in view of C.N. Rudra Murthy v. K. Barkatullah Khan 1999 (8) SCC 275. He also drew my attention to Section 79 of the N.D.P.S. Act which provides that all prohibitions and restrictions imposed by or under this Act on the import into India, the export from India and transhipment of Narcotic Drugs and Psychotropic Substances shall be deemed to be prohibitions and restrictions imposed by or under the Customs Act, 1962 and the provisions of that Act shall apply accordingly; provided that, where the doing of anything is an offence punishable under that Act and under this Act, nothing in that Act or in this section shall prevent the offender from being punished under this Act. Mr. Bagri forgets that this section relates to export & import of psychotropic substances which is imported in and exported from India. There is a provision under Section 30 of the Evidence Act which provides that 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. The settled law is that there should be independent evidence than the confession which inculpates a person making statement and the co-accused person.

6. Even the citation submitted by Mr. Bagri in State of Maharashtra v. Damu and Ors. : 2000CriLJ2301 , it has been held that usually court required some corroboration to the confessional statement which can be used in view of Section 30 of the Evidence Act. The settled law is that statement of one accused cannot be read against another. When it is so, the argument of Mr. Bagri that the order of charge against the petitioner may be maintained only on the basis of statement of co-accused is not to be accepted on any ground which he has submitted.

7. Consequently, the revision petition is allowed and the charge framed against the petitioner is hereby quashed.