JUDGMENT :

1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This criminal revision petition under Sections 397 & 401 Cr.P.C. has been preferred against the order dated 01.10.2021 passed by the learned Special Judge, NDPS Act Cases, Pali in Sessions Case No.101/2021, whereby charges were framed against the present accused-petitioner for the offences under Sections 8/21 read with Section 29 of the Narcotic Drugs and Psychotropic Substance, Act, 1985 (hereinafter referred to as ‘Act of 1985’).

3. Brief facts of this case, as noticed by this Court, are that on the basis of an information received from the informant, on 10.03.2021 at about 02:40 p.m., Shri Gautam Jain, Inspector of Police, Police Station Kotwali, Pali, alongwith his team, reached the residential house of one Binjaram (henceforth also referred to as ‘co-accused’), whereafter, the police team, upon search, found the said Binjaram being in possession of smack weighing 18.46 grams (contraband in question), for which no satisfactory explanation was put forth by him.

3.1 Thereupon, an FIR bearing No.100/2021 was registered for the offences under the Act of 1985. After investigation, it was found that the contraband in question was purchased by Binjaram from the present accused-petitioner Neeraj Kumar. Hence, on 16.07.2021, a charge-sheet before the learned court below was filed against Binjaram for the offence under Section 8/21 of the Act of 1985, and against the present accused-petitioner-Neeraj Kumar for the offence under Section 8/21 and Section 29 of the Act of 1985.

3.2 The learned court below after hearing the parties, proceeded to frame charges for the aforementioned offences against the accused persons, vide the impugned order.

4. Learned counsel for the accused-petitioner, at the outset, submits that despite the concerned investigating officer having ample time after receiving the alleged information from the informant, the officer did not obtain the requisite search warrant from the competent Magistrate before effecting the search in question, which is a clear violation of the provisions of the Act of 1985.

5. Learned counsel for the accused-petitioner further submits that the recovery in question was made from the co-accused, and not from the present accused-petitioner. However, as per learned counsel, the accused-petitioner has been implicated in this case only on the sole testimony of the co-accused, to the effect that the contraband in question was stated to be purchased by the co-accused from the present accused-petitioner; the said testimony is doubtful, for no proof of such transaction alleged to have taken place between the co-accused and the present accused-petitioner has been brought on record, nor any detail in regard to telephonic call between them forms part of the record.

5.1 Learned counsel thus submits that in absence of any cogent and reliable evidence having been produced on record, the accusation against the present petitioner, only on the basis of a non-reliance and unsubstantiated testimony of the co-accused, cannot be proved beyond all reasonable doubts.

6. Learned counsel for the accused-petitioner also submits that there are no previous or subsequent criminal antecedents against the present accused-petitioner for the offences under the Act of 1985; as against this, there are various cases under the Act of 1985 pending against the co-accused. Thus, as per learned counsel, the sole testimony of a person having such criminal antecedents cannot become a basis for prosecution of a person, like the present accused-petitioner. Learned counsel therefore, submits that such testimony of the co-accused casts a serious doubt upon the case of the prosecution.

7. Learned counsel for the accused-petitioner however, submits that the learned court below, without due appreciation of the aforementi