IMPORTANT POINT
Charges under the NDPS Act cannot be framed based solely on co-accused statements and CDR evidence without establishing grave suspicion against the accused.

JUDGMENT :

(Amit Mahajan, J.)

1. The present petition is filed under Section 397 read with Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’), seeking setting aside of the order dated 25.07.2023 (hereafter ‘impugned order’), passed by the learned Special Judge (NDPS), South West District, Dwarka Courts, New Delhi in SC No. 626/2022 arising out of FIR No. 19/2022, registered at Crime Branch.

2. By the impugned order, the learned Trial Court has charged the petitioner for the offence under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).

3. The brief facts of the present case are as follows:

3.1. On 24.02.2022, at around 1 PM, accused persons Rihan and Mohd. Gulrej were apprehended in the area of Om Vihar as they were acting suspiciously. On enquiry, they informed that they are residents of Bareilly, Uttar Pradesh and used to procure Heroin from Bareilly. During personal search, 50 g of Heroin was recovered from both the said accused persons respectively.

3.2. On further enquiry, the accused persons allegedly informed that their associate Akil Ahmed was present at their rented accommodation in Uttam Nagar. At their instance, a raid was conducted and co-accused Akil Ahmed was also apprehended. During personal search, 260 g of Heroin was recovered from him along with an electronic weighing machine.

3.3. During investigation, all the three accused persons allegedly disclosed that they used to procure Heroin from the petitioner. The petitioner was found to be connected with the other accused persons through CDRs.

3.4. On 29.08.2022, the petitioner surrendered and was formally arrested in the case. The petitioner was enlarged on bail on 23.11.2022.

3.5. Pursuant to the filing of supplementary charge sheet against the petitioner, the learned Trial Court in the impugned order dated 25.07.2023 observed that a prima facie case was made out against all the accused persons, including, the petitioner, for having entered into a criminal conspiracy to deal in or possess narcotic drugs illegally. Thus, charge for the offence under Section 29 of the NDPS Act was framed against all the accused persons. Further, charge under Section 21(b) of the NDPS Act was framed against the accused persons Rehan and Mohd. Gulrez for possessing intermediate quantity of Heroin. Charge under Section 21(c) of the NDPS Act was framed against the accused Akil Ahmed for possessing commercial quantity of Heroin as well.

4. The learned counsel for the petitioner submits that the learned Trial Court has erroneously framed charge for offence under Section 29 of the NDPS Act solely on the basis of the disclosure statements of the co-accused persons and CDR connectivity between the petitioner and other co-accused persons.

5. He submits that no recovery has been effectuated from the petitioner in the present case and the disclosure statements of the co-accused persons and CDR cannot be read against the petitioner without any corroboration.

6. He submits that the disclosure statements of the co-accused persons under Section 67 of the NDPS Act are inadmissible as evidence against the petitioner and the charge cannot be framed against the petitioner on the basis of the same.

7. Per contra, the learned Additional Public Prosecutor for the State submits that the learned Trial Court has rightly framed the charge for the offence under Section 29 of the NDPS Act against the petitioner after sifting through the material on record.

8. She submits that the petitioner is alleged to be the source of contraband, that is, 360g of Heroin, which was recovered from the possession of the accused persons. She emphasises that the petitioner was also found to be connected with all the accused persons through CDRs.

9. At the outset, it is relevant to note that the scope of interference by High Courts while exercising revisional jurisdiction in a challenge to order framing charge is well settled. The power ought to be exercised sparingly, in the interest of