The main legal point established in the judgment is the requirement for evidence of criminal conspiracy and abetment for the application of Section 29 of the NDPS act.

JUDGMENT

Talwant Singh, J. - The present petition has been filed for setting aside the order on charge dated 23.10.2021 in SC No.200/2021, FIR No.104/2021, PS: Crime Branch, whereby the Ld. Special Judge ordered for framing of charges against the Revisionist u/s 20(c) r/w 29 of The Narcotic Drugs and Psychotropic Substances act, 1985 (NDPS act). The petitioner is one of the accused in the above matter.

2. The case of the prosecution is that on 12.06.2021 at about 4:30 aM, secret information was received that one Shanta Kumar was engaged in supply of Charas through his trustworthy driver and he would be sending one consignment of Charas through him to Delhi to the petitioner to be delivered near Fortis Hospital, Vasant Kunj.

2.1. On the basis of this secret information, when the raiding party reached at the spot at around 6:10 aM, they found two vehicles i.e., one truck and one car parked on the Vasant Kunj Road and three persons were talking to each other, later on identified as Rakesh, Ridhm and Sarvesh.

2.2. Driver Rakesh took out two polythene bags, one of black colour and the other one of white colour from the cabin of the truck and handed over the black polythene bag to the present petitioner and the white polythene bag to Sarvesh. after checking the substance, both of them paid Rs.10,000/- each to Rakesh for the said contraband. They were apprehended red handed. On weighing, 750 grams of Charas was found in the polythene bag of the petitioner/revisionist and the weight of the Charas was 456 grams in the polythene bag recovered from co-accused Sarvesh.

2.3. Investigation was completed, challan was filed and after hearing arguments on charge, the learned Special Judge ordered for framing of charges against the revisionist under Section 20(c) r/w Section 29 of the NDPS act.

3. Being aggrieved, of the said order, the revisionist has preferred the present revision petition on the ground that there is no admissible evidence or documentary proof against the present revisionist; the revisionist has no role whatsoever regarding alleged recovery of contraband; 750 grams of Charas alleged to have been recovered from the possession of the revisionist falls under the category of intermediate quantity/lesser commercial quantity. There is no absolute evidence of there being any criminal conspiracy so as to add 456 grams Charas alleged to have been recovered from co-accused Sarvesh; the revisionist and Sarvesh had paid Rs. 10,000/- each to truck driver Rakesh Kumar separately. Even, as per the story of the prosecution, they had collected the contraband separately so neither in respect of payment nor in respect of goods, there is any collective action; so combining both alleged recoveries against the revisionist is illegal and arbitrary and without any merit.

3.1 It has been further submitted that the alleged recovery from the petitioner is of 750 grams of Charas but the revisionist has been ordered to be charged for total recovery of 1.206 Kgs of Charas; the revisionist is not shown to have any knowledge regarding the quantity of contraband alleged to have been recovered from Sarvesh and at what price. So, the mischief of Section 29 of NDPS act is not at all attracted and the order of charge deserves to be set aside/modified.

3.2. It is also the case of the revisionist that there is nothing on record to show that he had entered into criminal conspiracy with any of his co-accused or with any other person regarding offence of illegal possession of contraband. No substantive material has been shown, prima facie, against the revisionist qua alleged recovery of total quantity of contraband. The order of the learned judge is against the judgment of apex Court and other High Courts and the same is liable to be set aside.

4. Notice of the petition was issued. The detailed status report has been filed by the respondent/State. The first objection taken by the respondent/State is that there is no challenge by the petitioner to the order dated 27.10.2021