IMPORTANT POINT
Seizure of psychotropic substance – Conviction and sentence cannot be sustained when there is no recovery from appellant of any incriminating material.

JUDGMENT :

Abhay S. Oka, J.

FACTUAL ASPECTS

1. The appellant is accused no.2. Along with other co-accused, he was prosecuted for the offences punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’). The case of the prosecution is that the Narcotics Control Bureau (for short, ‘NCB’) received secret information on 21st December 2013 that a consignment of pentazocine, a psychotropic substance, was being transported illegally from Hajipur to Lucknow by train for being sold in the market as an intoxicating item. The NCB team mounted surveillance near the parcel house of Hajipur station. When accused no.1 - Jasvinder Singh reached there, he was intercepted. According to the prosecution case, accused no.1 identified the consignment he had booked from the railway parcel house. During the search of the booked consignment, 30 cartons of pentazocine (Fortwin injections) manufactured by Ranbaxy company were found. A statement of accused no.1 was recorded under Section 67 of the NDPS Act. He admitted that he used to purchase medicines from Patna and sell them in Lucknow, Uttar Pradesh. He claimed that he bought Fortwin injections from the appellant-accused no.2 and one Arun Singh on several occasions.

2. Even the appellant's statement under Section 67 of the NDPS Act was recorded in which he stated that he runs a medical shop in Katra Market, Govind Mitra Road, Patna, under the name and style of M/s Mangalam Drug Agency. He disclosed that he had a valid licence issued by the Office of Controller of Drugs, Bihar. He stated that accused no.1 came to his shop and demanded 40 cartons of Fortwin injections. He could provide only 30 cartons against payment of cash. The consignment of 30 cartons was obtained by the appellant from accused no.3 – Sanjay Kumar, who was also running a medical store in the name of M/s Maheshwari Pharma. On the request made by the appellant, accused no.3 sent 30 cartons of Fortwin injections to accused no.1. The case of the prosecution is that the appellant produced his drug licence before the officers of NCB. On trial, the Special Court convicted the appellant and accused nos.1 and 3 for the offences punishable under Section 22(c) and Section 29 of the NDPS Act. For the offence punishable under Section 22(c), the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-. Separate punishment was not imposed for the offence punishable under Section 29 of the NDPS Act. The conviction of the appellant has been confirmed by the High Court by the impugned judgment.

SUBMISSIONS

3. The first submission of the learned senior counsel appearing 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 finding of the High Court is that the appellant has been prosecuted and convicted for having sold contraband to an unauthorised 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 Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1. He submitted that apart from prejudice caused to the appellant on account of non-framing of proper charge, the allegation of conspiracy under Sec