A discharge application must be allowed if the prosecution's evidence, particularly confessions of co-accused, is inadmissible and no other corroborative evidence is present.

JUDGMENT :

Jitendra Kumar, J.

The present petition has been preferred by the petitioner against the impugned order dated 19.01.2019 passed by learned Sessions Judge, Bettiah, West Champaran in Trial No. 46 of 2017, whereby learned Sessions Court/Special Court, N.D.P.S. has dismissed the application of the petitioner for discharge filed under Section 227 of the Cr.PC.

2. The prosecution case, as per the written report of the informant/Bimlendu Kumar, who is Police Sub-Inspector, is that he was posted in Town Police Station, Bettiah. On 26.12.2016, in the morning, he got information that one Md. Saheb is selling smack at Naurangabag. Information was given to his senior officer and one team was constituted. The raiding team reached Naurangabag, near the house as informed by the informer, surrounded the house and in the presence of one Nagendra Mishra and Prabhawati Devi, door was opened and one man called Md. Saheb emerged from the house. After taking his consent for searching his house and following the rules of search, the raiding team commenced the searching operation. In course of search, 200 gram smack was recovered from the jacket of Md. Saheb. On further inquiry, he stated that it was Aslam, who supplied smack to him through his man, Wahab Mukhiya. The recovered contraband was seized and sealed and seizure list was prepared.

3. Upon the above written report of the informant, Bettiah Town P.S. Case No. 718 of 2016 was registered on 26.12.2016 against the three accused persons, including the petitioner for offence punishable under Sections 20, 23, 25, 27(A) and 29 of the N.D.P.S Act.

4. After investigation, separate charge-sheet was submitted against the petitioner and thereafter, cognizance was taken against him and at the stage of framing of charge, his application for discharge was rejected by learned Trial Court by the impugned order and subsequently charge was framed against the sole accused/petitioner herein vide order dated 15.04.2019 under Sections 21(b), 22(b) and 23(b) of the NDPS Act.

5. I heard learned counsel for the petitioner and learned APP for the State.

6. Learned counsel for the petitioner submits that the petitioner is innocent and has been falsely implicated in this case. He further submits that only material against the petitioner is the confessional statement of co-accused, which is not admissible in view of celebrated judgment of Tofan Singh Vs. State of T.N., as reported in 2021 (4) SCC 1. Moreover, there is no recovery from the possession of the petitioner despite raid having been made by the police at his house. Hence, there is no legally admissible material at all against the petitioner even to arouse any suspicion against him. Hence, there is no question of framing of charge. Hence, learned Trial Court has erroneously passed the impugned order rejecting the application of the petitioner for discharge.

7. He refers to and relies upon the following judicial precedents:

(i) Dipakbhai J. Patel Vs. State of Gujarat, (2019) 16 SCC 547

(ii) Karan Talwar Vs. The State of Tamilnadu (2024 INSC 1012, 2024 SCC Online SC 3803)

8. However, learned APP for the State defends the impugned order submitting that there is no illegality or infirmity in it. He refers to Section 30 of the Evidence Act to submit that confession of the co-accused is relevant and admissible against the petitioner/accused and, therefore, there is no illegality to frame charge against him on the basis of the confessional statement of the co-accused. Hence, the present petition is liable to be dismissed.

9. I considered the submissions advanced by both the par