In a significant ruling of Dhruv Dalip Tahil v/s State of Maharashtra, the High Court has quashed charges against an applicant (Accused No. 2) in a Narcotic Drugs and Psychotropic Substances (NDPS) Act case, citing critical errors in the prosecution's application of law and a lack of substantial evidence. The decision, delivered in Criminal Revision Application No. 183 of 2024, set aside orders from the Special Judge that had rejected the applicant's discharge and clarification applications.
The case originated from the interception of Accused No. 1, Muzammil Shaikh, who was apprehended with 35 grams of Mephedrone (MD). His mobile phone revealed WhatsApp messages exchanged with Accused No. 2 (the Revision Applicant), which the prosecution alleged pertained to the procurement of contraband. According to the prosecution, Accused No. 2 procured 1 or 2 grams of MD on multiple occasions from Accused No. 1 between July 2019 and January 2021, totaling 44 grams, with payments of Rs. 24,700 across 15 transactions.
Prosecution's Stance and Defense Arguments:
The prosecution argued that while individual procurements of small quantities might not constitute an offense, the recurring nature of the transactions and the WhatsApp chats indicated Accused No. 2's involvement in illicit dealing and aiding Accused No. 1's trade. They contended that Accused No. 2 even instructed Accused No. 1 to deliver contraband to different addresses and received incentives for sharing Accused No. 1's contact.
However, the applicant's counsel, Mr. Khan, countered that the charges were levied without proper application of mind and with mala fide intent. He emphasized that the procurement of small quantities alone, even if proven, would not attract the alleged charges under the NDPS Act.
Crucial Role of Procedural Law: Sections 218 and 219 Cr.P.C.
A central point of contention revolved around the joinder of charges as per the Code of Criminal Procedure (Cr.P.C.). Mr. Khan highlighted Section 218(1) Cr.P.C., which mandates a separate charge and separate trial for every distinct offense. He noted that the only relevant exception, Section 219 Cr.P.C., permits the joint trial of up to three offenses of the same kind committed within a 12-month period.
The prosecution, by its own admission, alleged 15 offenses spanning over 18 months, which clearly fell outside the purview of Section 219. The Court observed that the prosecution had erred in lumping together multiple alleged procurements of small quantities over an extended period to charge the applicant with a higher magnitude offense under Section 22(b) of the NDPS Act (which carries a higher penalty and stricter bail conditions) instead of the more appropriate Section 22(a).
The Court emphasized that where stringent conditions are imposed on an accused by a special act like the NDPS Act, the investigating agency bears an implicit duty to strictly comply with the act's provisions. This strict compliance, the Court found, was lacking in the present case regarding the charging procedure.
Insufficient Evidence and Reliance on Hearsay:
Beyond the procedural infirmities, the Court also scrutinized the evidentiary basis of the prosecution's case. The alleged conspiracy between Accused No. 1 and Accused No. 2, supposedly derived from WhatsApp chats, was found to be unproven upon specific reading of the chats. The Court noted that the chats did not explicitly mention any contraband, including MD, nor did the monetary transactions clearly reflect payments for alleged contraband.
Furthermore, the Court found the prosecution's case against the applicant to be primarily based on hearsay, stemming from the WhatsApp conversations that lacked direct incriminating evidence. There was no "live link or nexus" established between the alleged monetary transactions and the procurement of contraband. The Court also pointed out that the ingredients of Section 27-A of the NDPS Act (financing illicit traffic) were prima facie absent.
Co-Accused Confession Alone is Insufficient:
Relying on precedents from the Supreme Court, including Karan Talwar Vs. State of Tamil Nadu and Suresh Budharmal Kalani v. State of Maharashtra, the High Court reiterated that a confession statement by a co-accused alone, without any other corroborating material, cannot be the sole basis for framing charges against another person. In this case, no contraband was recovered from the applicant, and the prosecution's reliance on the confessional statement of Accused No. 1 was deemed inadmissible as per Section 25 of the Indian Evidence Act, 1872.
Conclusion:
In light of these findings, the High Court concluded that no prima facie case was made out for the applicant to stand trial. The invocation of charges under Sections 8(c), 22(b), 27A, and 29 of the NDPS Act against the applicant was held to be impermissible in law. Consequently, the orders passed by the Special Judge were quashed and set aside, and the applicant's discharge application was allowed. This ruling underscores the critical importance of strict adherence to procedural law and the necessity of robust, admissible evidence in prosecuting cases, particularly under stringent statutes like the NDPS Act.
Section 8, Prevention of Illicit Traffic In Narcotic Drugs and Psychotropic Substances Act - 1988
Section 22, Narcotic Drugs and Psychotropic Substances Act - 1985
Section 27A, Narcotic Drugs and Psychotropic Substances Act - 1985
Section 29, Narcotic Drugs and Psychotropic Substances Act - 1985
Narcotic Drugs and Psychotropic Substances Act, 1985
Section 25, Indian Evidence Act - 1872
Indian Evidence Act, 1872
Section 218., Code of Criminal Procedure - 1973
Section 219., Code of Criminal Procedure - 1973
Code of Criminal Procedure, 1973
