Confessional statements made under Section 67 of the NDPS Act are inadmissible in trial, and CDR evidence alone does not suffice for conviction without recovery of contraband from the accused.

JUDGEMENT

1. Petitioner has invoked inherent jurisdiction of this Court, under Section 482 of Code of Criminal Procedure, 1989 ("CrPC" for short) for quashment of order dated 31.10.2023 passed by learned Additional Sessions Judge, Samba ["trial court", for short], vide which, he came to be charged for offences under Sections 08/15/25/29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ["NDPS Act"]. Alongside, petitioner has also moved an application, in terms of Section 439 CrPC, for his enlargement on bail. Since both the petitions trace their origin to FIR No. 242/2022, thus they are being disposed of by virtue of this common judgment.

2. The case set out by the prosecution, in the trial court, is that on 30.09.2022, Police Station, Samba received a docket from PSI Manish Sharma, Incharge Police Post SIDCO, stating inter alia that while he along with his team of Police Officials was on Nakka duty at around 1200 hours, a Truck bearing Registration No. JK03D-4411, on its way from Kashmir to Punjab, made an attempt to give a slip to the Nakka, however, it was chased and intercepted. The truck was being driven by accused-Mohd. Yousuf Khan. On being checked, the aforesaid Truck was found loaded with fruit boxes. However, on further checking it surfaced that 98 fruit boxes contained about 5 to 8 kgs each of poppy straw, which weighed 667.4 Kgs. FIR in question came to be registered and during investigation, samples of the contraband were drawn and forwarded to FSL Jammu for chemical examination and as per the expert opinion, Morphine and Poppy Straw (Plant material and Papaver Somniferum) were detected in the exhibits.

3. It is further case of the prosecution that during investigation, driver of the aforesaid Truck, accused-Mohd. Yousuf Khan revealed that contraband in question was loaded in the truck by its main supplier, namely, Shamas ud din Ganie, the petitioner herein. As a result, the investigating agency obtained CDR/SDR of the petitioner and accused-Mohd. Yousuf Khan from the concerned Telecom Service Provider along with certificate under Section 65-B of the Indian Evidence Act from the Nodal Officer of the concerned Telecom Service Provider. As per the CDRs, driver of the Truck, Mohd. Yousuf Khan, from whom aforesaid huge consignment of contraband came to be recovered, was in regular contact with the accused-petitioner and frequent communications between the duo were made through mobile numbers 6006897647 and 8491098458. It further surfaced that while Sim number 6006897647 was registered in the name of wife of the petitioner and was being used by him, the other Sim number 8491098458 was found registered in the name of the petitioner. It also came to the fore that location of both the numbers was reflected at Bijbehara from where, as per the statement of accused-Mohd. Yousuf Khan, the contraband was loaded in the Truck by the petitioner. Therefore, according to the investigating agency, there was sufficient material on record to proceed against the petitioner.

4. Learned trial court relying upon a judgment of learned Delhi High Court in "Prashant Bhaskar vs. State" 2014 (1) JCC 750, passed the impugned order by virtue of which, both the accused persons came to be charged for the aforesaid offences.

5. The petitioner has assailed the impugned order, primarily on the ground that the only evidence available on record against him is his statement and statement of the accused-driver of the truck, recorded by the investigating agency under Section 67 of the NDPS Act, while they were in custody, which being inadmissible in evidence cannot be made basis for framing of charge against him in view of law laid down by Hon'ble Supreme Court in "Tofan Singh Vs. State of Tamil Nadu"; (2021) 4 SCC 1. It is contention of the petitioner that except the aforesaid two statements of the petitioner and that of co-accused, Mohd. Yousuf Khan, there is no other evidence which connects the petitioner with the alleged commission of offences an