While discharging a man from an NDPS case, the Rajasthan High Court observed that a bare assertion that he had “cooperated” with persons allegedly involved in drug trafficking, without disclosing the nature, manner or occasion of such cooperation, could not by itself attract Section 29 of the NDPS Act, which deals with abetment and criminal conspiracy.

The bench of Justice Farjand Ali held that Section 29 was not attracted merely on account of an association, relationship or acquaintance with a person allegedly involved in an NDPS offence. The prosecution must place material indicating, at least prima facie, the nature of the alleged assistance, the act constituting such assistance, or circumstances from which participation in a criminal conspiracy could reasonably be inferred.

The Court further observed that the allegation that the petitioner had “cooperated” with the principal accused was conspicuously bereft of particulars, as the prosecution had not attributed any specific transaction, date, place, quantity, vehicle, financial dealing, communication or other overt act to him.

“The statutory requirement, therefore, is not satisfied by a general allegation of 'cooperation' unless the material discloses, at least prima facie, the nature of the alleged assistance, the act constituting such assistance, or the circumstances from which participation in the alleged conspiracy may reasonably be inferred.”

For context, it was prosecution's case that based on some information, a search was conducted at the premises which was connected with the principal accused persons, where contraband was discovered and the principal accused persons were arrested.

Thereafter the petitioner, who was allegedly a distant brother-in-law of one of the principal accused persons, came to meet the arrested persons, and based on statements of the principal accused persons, summons were issued to him. His statement was recorded, in which he allegedly admitted having assisted the accused persons,

Further, upon his search, an amount of around Rs. 68000 was recovered, and on being questioned, he allegedly said that he had brought it with an intention to pay it to the officials to secure some relaxation for his distant brother in law. Hence, charge sheet was filed in which he was also implicated. Against this, the petition was filed.

After hearing the contentions, the Court highlighted that the petitioner was not present at the place of search; no contraband was recovered from his possession, and there was no independent evidence connecting him with the alleged narcotic activity.

Further, the material relied upon by the prosecution lacked specificity about the role of the petitioner. The record only mentioned that the petitioner “cooperated” with the arrested accused persons in the business of narcotics, without precisely disclosing what constituted cooperation.

The Court also observed that the petitioner was implicated based on statement of co-accused, and made reference to the Supreme Court case of Tofan Singh v State of Tamil Nadu which held that statement recorded under Section 67, NDPS Act, could not be used as a confessional statement, in a trial or an offence under the NDPS Act.

Hence, the Court held that where the foundation of implicating someone was the statement under Section 67, such material could not be treated as an independent substantive confession supplying missing ingredients of the offence. And in the absence of any other substantial material, statement under Section 67 could not sustain offence under NDPS Act.

In relation to prosecution's allegation of the petitioner's intention to offer cash to the officials, the Court held that such reasoning involved a chain of inference for which, presently, the record did not disclose any independent factual foundation. Hence, such discovery of cash, without a demonstrable nexus with the alleged offence, could not be seen as evidence of abatement.

In this background, the Court opined,

“… statutory threshold cannot be reduced to a mere possibility of involvement…The stringent nature of the statutory scheme of the NDPS Act cannot, conversely, become a reason for lowering the threshold of judicial scrutiny at the stage of framing charge. Stringency of punishment makes it all the more necessary that the foundational ingredient of the offence are demonstrably disclosed by legally cognizable material.”

Accordingly, the petition was allowed, and the petitioner was discharged from the offence.