Disclosure Statements and Charges under NDPS Act

Charge Framing upon Disclosure Statement under Section 29 of the NDPS Act not sustainable in absence of Material Evidence

 

Usually, it is seen that the prosecution in order to falsely implicate the accused, without any evidence, relies solely on the disclosure statements of other accused. These disclosure statements are involuntary and are recorded by the police from the other accused when they are in custody and therefore the element of coercion and undue influence always prevail in such disclosure statements which challenge the very authenticity of such statements. The police during investigation makes these disclosure statements as the basis for the arrest of the subsequent accused and they are implicated in the criminal cases without any rhyme or reason.

As per Section 211(5) of Cr.P.C a charge framed is equivalent to a statement that every legal condition required by law to constitute the offence charged stands fulfilled in that case. Section 211 (5) of Cr.P.C reads as follows: –

Section 211

(1)   xxx

(2)   xxx

(3)   xxx

(4)   xxx

(5) “The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.”

(6) xxx

(7) xxx

The Hon’ble Supreme Court of India in the case of Sanjeev Chandra Agarwal & Anr. v. Union of India, Criminal Appeal No(s).1273/2021, where the Apex Court relied upon the decided case of Tofan Singh v. State of Tamil Nadu, 2020 AIR (SC) 5592, held that the one co-accused cannot be convicted upon the disclosure statement made by another co-accused and the charge u/s 29 of NDPS Act is not sustainable.

As a matter of fact, except for the isolated disclosure statement of the other co-accused accompanied by confessional statement of accused, both of which are inadmissible in law, there is no other discernable and coherent evidence which is placed on record by the prosecuting agency to make out an offence under section 29 of the NDPS Act.

However, this is not brought to the notice at the time of arguments during the stage of framing of charges and resultantly the order of framing of charges suffers from material infirmity as despite absence of any evidence, the disclosure statements are believed to be gospel truth for initiation of trial against the accused.

It has been categorically laid down by the Hon’ble Supreme Court of India in the case of Dipak Bhai Jagdish Chandra Patel v. State of Gujarat, MANU/SC/0595/2019 that:

“23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.”

However, the convention is that there is no reflection of any application of mind by the concerned Ld. Judge while framing of the chargesheet to demonstrate that he had gone through the contents of the complaint cum final investigation report to arrive at a reasoned conclusion while framing charge under Section 29 of the NDPS Act that every legal condition required by law to constitute an offence under Section 29 of the NDPS Act has been fulfilled on the basis of the aforesaid report.

There is complete oversight of the fact that no recovery much less any incriminating material was recovered from the accused and the entire case hinges upon vague allegations based upon the statements made by the co-accused in his disclosure statement, which is inadmissible in law. The said statements usually do corroborate by any independent evidence worth the mention in the entire length and breadth final investigation report as is apparent from the failure of the prosecuting agency to gather any incriminating evidence against such accused.

In one such case, a criminal revision under Section 401 Cr.P.C. challenging the order framing charges under section 29 of the NDPS Act was preferred before the Punjab and Haryana High Court, Chandigarh relying on the judgement of Sanjeev Chandra Agarwal & Anr. v. Union of India (Supra). In the light of the arguments put forth the Hon’ble High Court was pleased to grant an interim stay on the trial qua petitioner in the present matter.

— Ananya Bhardwaj, Associate

The complete order is below for the purpose of reference:

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