NDPS Act | Co-Accused Cannot Be Found Guilty On Mere Suspicion When Complicity Is Not Proved: Telangana High Court

While dealing with a criminal appeal filed under Narcotics Drugs and Psychotropic Substances Act, the Telangana High Court has reiterated that a co-accused cannot be found guilty on mere suspicion and/or assumption when complicity is not proved.In the case at hand, both accused (A1 and A2) were traveling together to Bangkok. However, when their check-in luggage was inspected by the Customs officials on an anonymous tip, it was found that their bags had a false bottom, and when separated, the concealed compartment contained a black color polythene bag with white crystalline powder in it. Upon questioning, the accused revealed that the substance was ketamine. Justice K. Surender observed that the trial court had mainly relied on the fact that both accused (A1 and A2) were traveling together and also on their statement under Section 67 of the NDPS Act. The bench observed, "The statement of an accused under Section 67 of the Act is inadmissible. Suspicion and/or assumption cannot form basis to find A2 guilty, when the complicity of A2 is not proved beyond reasonable doubt by the prosecution. Accordingly, benefit of doubt is extended to A2. However, conviction of A1 is confirmed.” The duo was booked under Section 23(c) r/w 28 and 29 (1), and Section 23(3) r/w 29(1) of the NDPS Act, respectively. The counsel on behalf of A1 and A2 contended that the procedure under section 52 A of the NDPS Act was not followed. The High Court however rejected this ground, stating that such a defence cannot be raised at a belated stage. “The argument of the learned counsel for the appellants that Section 52- A of the Act was not followed, cannot be considered at the stage of appeal, when no such defence was taken during trial. Following the judgment of the Hon'ble Supreme court in Bharat Aambale's case (supra), and considering the facts and circumstances, ground raised by the counsel regarding violation of Section 52-A of the Act, is rejected,” it said. However, it proceeded to notice that it was A1 who checked in the luggage, and although Customs contended that the clothes of A2 were found in the bag, Court said merely because A1 and A2 were traveling together, it could not be said that A2 had knowledge of the illegal act. “Though A2 traveled with A1, it is not sufficient proof to accept that the prosecution proved that A2 had knowledge about the drug being concealed in the bottom of the suit case. No 18 evidence is produced by the prosecution or any investigation done as to where the concealment of the drug was done and whether A2 had knowledge about the drug. In the absence of any evidence to prove that the concealment of the drug in the suit case was in the presence of A2 or to her knowledge, the question of attributing knowledge to A2 about the concealment in the suitcase of A1, does not arise,” it said. Thus, A2 was acquitted. The appeal filed by A1 was dismissed. Srinivasula Varalaxmi vs. State of Telangana Counsel for petitioner: P. Manoj Kumar for Duvvuri Subrahmanya Bhanu Counsel for respondent: M. Vivekananda Reddy, APP Click Here To Read/Download The Order

NDPS Act | Co-Accused Cannot Be Found Guilty On Mere Suspicion When Complicity Is Not Proved: Telangana High Court

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