At the stage of framing charges, the court's inquiry is to assess whether there is a prima facie case against the accused, not to evaluate the case's end result.

JUDGMENT

1. The applicants in both these applications are prosecuted for the offences punishable under Sec. 29 r/w Ss. 8(c) and 20(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'), Sec. 8(c) r/w Sec. 20(c) of the NDPS Act and Sec. 29 and Sec. 28 of the NDPS Act. The applicants are arraigned as accused No.3 and accused No.4 in NDPS Special Case No.39 of 2017.

2. The brief facts of the prosecution case are as follows :-

i) The applicants were arrested on 24/12/2016 in C.R. No.13 of 2016. The respondent received information that on 15/10/2016, two persons namely Abdul Karim Yunus Karobari @ Lala Bhai (accused No.1) and Mohd. Ayaz Sheikh @ Walla bhai (accused No.2) are likely to come for sale of charas to their customers near Mumra Rickshaw Stand, Kalwa Naka Thane. Based on the information, the officers of respondent arrenged a raid and apprehended accused No.1 carrying black colour bag along with accused No.2 at the spot. Search of bag resulted in recovery of 4 parcels wrapped in brown cello tape and upon opening the same, it was found containing dark brown colour sticky substance in the form of globules. On testing the same was found to be charas. The total weight of the balls was 6.5 Kgs.

The contrabands were packed and sealed under panchanama dtd. 16/10/2016.

ii) Statements of accused Nos.1 and 2 were recorded on 16/10/2016 under Sec. 67 of the NDPS Act. Both were arrested.

iii) During the statement under Sec. 67, the accused No.1 revealed the name of the applicants. Both were apprehended on 23/12/2016. Their statements were recorded. They were involved in other cases i.e. C.R. No.12 of 2016 and C.R. No.17 of 2016. They were arrested in all three cases. Statements of the applicants were recorded under Sec. 67 of the NDPS Act. During the investigation name of Ashok Kumar Verma (accused No.5) was revealed as original supplier. On completing investigation, charge-sheet was filed against the applicants.

3. The applicants preferred an application for discharge before the Special Court under the NDPS Act. The said applications were rejected by order dtd. 6/9/2021.

4. The applicants have preferred these applications challenging the order refusing discharge passed by the trial Court.

5. learned Advocate for the applicants submitted as follows :

i) The applicants are falsely implicated in this case. No contraband drug was recovered from them.

ii) The applicants are prosecuted only on the statement of the co-accused which are retracted by them.

iii) The prosecution is relying on statement under Sec. 67 of the NDPS Act to prosecute the applicants for the aforesaid offences. Such statement is not admissible in evidence. It has no evidentiary value.

iv) The contraband was recovered from accused Nos. 1 and 2. According to prosecution, the investigation and interrogation of the co-accused revealed the involvement of the applicants. Merely on such statement or the statement of the applicants purportedly recorded under Sec. 67 of the NDPS Act, no charge can be framed against the applicants. The Hon'ble Supreme Court in the case of Tofan Singh V/s. State of Tamilnadu delivered in Criminal Appeal No.152 of 2013 has held that the statement of accused under Sec. 67 of the NDPS Act is not admissible in evidence. There is no other evidence against the applicants.

v) The trial Court while rejecting the application was influenced by the fact that there are criminal antecedents against the applicants. In the absence of any cogent evidence to proceed against the applicants, merely on the ground of antecedents the applicants cannot be subjected to prosecution.

vi) The statement under Sec. 67 of the NDPS Act cannot be used for framing charge.

vii) In the absence of cogent evidence, the Court has to discharge the accused under Sec. 227 of the Criminal Procedure Code.

viii) The impugned orders suffers from illegality and deserves to be set aside.

6. Learned counsel for applicants has relied upon following decisions :-

i)