The Supreme Court has held that although a confession under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) or a disclosure statement under Section 53A cannot have evidentiary value to secure a conviction, the mere presence of such material cannot be a ground to quash a pending NDPS prosecution at the threshold.

A bench of Justice JB Pardiwala and Justice K Vinod Chandran held that material disclosed by co-accused identifying an absconding accused may be used by the investigating officer to gather further evidence, which may ultimately form the basis of a chargesheet or conviction in a properly conducted trial.

“We have no doubt that the confessional statement under Section 67 or a disclosure statement under Section 53A of the NDPS Act, can have no evidentiary value in a trial and it cannot lead to a conviction. Section 53A of the NDPS Act does not enable the disclosure of the co-accused to be placed before Court, especially when he is not examined as a witness or made an approver. The disclosure made by the co-accused who were apprehended at the spot, about the identity and the name of the one who fled, is only a material which the Investigating Officer could use to gather further evidence, which alone could be the basis of a chargesheet or a conviction, in a properly instituted trial.”, the Court observed.

The aforesaid observation came by a bench while hearing a State of Karnataka's appeal against the High Court's decision to quash the NDPS Act proceedings, at the threshold, against the accused for alleged possession of a 32.615 kg commercial quantity of 'ganja'.

While two co-accused were arrested on the spot, the Respondent-accused fled away and remained absconded. There was a split trial between the arrested accused and the Respondent, who absconded. The charge under Section 20 (b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was framed against the Respondent.

The High Court quashed the proceedings principally on the ground that the respondent had neither been apprehended at the spot nor had any contraband been recovered from his possession. According to the High Court, he had been implicated only based on the alleged confessional statement of the co-accused who had been apprehended at the spot.

In support, the High Court relied on the Supreme Court decisions in Tofan Singh v. State of Tamil Nadu (2021), State (by NCB) Bengaluru v. Pallulabid Ahmad Arimutta and Another 2022 LiveLaw (SC) 69, Balwinder Singh (Binda) v. Narcotics Control Bureau 2023 LiveLaw (SC) 813 and Firdoskhan Khurshidkhan v. State of Gujarat and Another (2024).

Setting aside the High Court's decision to quash the proceedings at the threshold stage, the Supreme Court has examined the import of the cited judgments by the High Court, noting that the said judgments were either on conviction or on a prayer for cancellation of bail, wherein the sole incriminating circumstance projected by the prosecuting/investigating agency was the confessional statement.

Differentiating those judgments with the factual proposition present in this case, the Court noted that the present case sought to examine whether a pending prosecution should be quashed merely because the material implicating the accused included the disclosure of co-accused.

Answering in the negative, the Court said that the co-accused's disclosure about the Respondent cannot be regarded as a disclosure statement to be used as substantive evidence for conviction. Instead, the disclosure information of the co-accused identifying the Respondent who fled could serve as a lead for the investigating officer to conduct further investigation.

In a nutshell, it is impermissible to quash the proceedings under the NDPS case at a nascent stage solely based on the principle that confessional statements under the NDPS Act are inadmissible; rather, the Courts must be circumspect to examine the evidence produced in the case or the material collected during investigation.

Since there was also no consideration of the chargesheet and the culpability attributed to the respondent as the third accused, the Court held that deciding whether the prosecution had sufficient material against the respondent at the stage of quashing would be premature.

“The quashing of charges merely on the ground that a confessional statement cannot be relied on in the trial, would not be a proper exercise of the inherent powers conferred on the High Court. The High Court has not looked into the evidence produced in the case, especially when the trial obviously would have been proceeded with against the co-accused. There is also no whisper as to the chargesheet filed in the case and the culpability found on the 3rd accused therein, who is the respondent herein; which in any event, would be premature at the stage of quashing.”, the Court observed.

As a result, the appeal was allowed, and restored the case to the file of the Principal District and Sessions Judge and Special Court, Udupi.

Appearance:

For Petitioner(s) : Mr. Aman Panwar, A.A.G. Mr. Sanchit Garga, AOR Mr. Shashwat Jaiswal, Adv. Mr. Bhanu Pratap Singh, Adv. Ms. Diksha Arora, Adv. Mr. Manav Kaushik, Adv. Ms. Aranya Sahay, Adv. Mr. Rishi Yadav, Adv. Mr. Nakul Shrivastava, Adv.

For Respondent(s) : None

Related: NDPS Charges Based On Section 67 Statements Of Accused Unsustainable : Supreme Court Applies 'Tofan Singh' Judgment