NDPS case against absconding accused cannot be quashed solely because co-accused statements are inadmissible, Supreme Court rules

Police found two persons near a car and seized 32.615 kg of ganja concealed in it; a third person fled and was later identified as the respondent, who was arrayed as Accused No. 3 and shown as an absconder in a split chargesheet.

The High Court quashed the pending NDPS proceedings, reasoning that the respondent had not been apprehended at the scene, no contraband was found in his possession, and his implication rested on a co-accused’s statement.

The State appealed.

The Supreme Court noted that the respondent’s name appeared in the First Information Statement, but no disclosure statement had been recorded from the co-accused and no Section 67 statement had been recorded from the respondent.

1. Whether proceedings pending before the Special Court could be quashed on the ground that a confession or disclosure statement would be inadmissible at trial, without examining the chargesheet and the material gathered against the accused.

2. Whether the cited decisions concerning conviction or cancellation of bail required quashing the pending prosecution in this case.

Under Tofan Singh v. State of Tamil Nadu, officers empowered under Section 53 of the NDPS Act are police officers for the purposes of Section 25 of the Evidence Act, 1872; a confession recorded under Section 67 of the NDPS Act cannot be used as a confession to convict an accused.

The Court stated that a Section 67 confession or a disclosure statement under Section 53A of the NDPS Act has no evidentiary value at trial and that a co-accused’s disclosure cannot, by itself, be placed before the court to establish guilt where the maker is neither examined as a witness nor made an approver.

The decisions relied on by the High Court concerned appeals against conviction or applications for cancellation of bail in which the confessional statement was the sole incriminating material; they did not determine whether a pending prosecution should be quashed without considering the prosecution material as a whole.

The Supreme Court distinguished the cited cases because they addressed whether a confession could sustain a conviction or justify cancellation of bail, whereas the present case concerned quashing a pending prosecution.

The respondent was alleged to have fled from the scene where the contraband was seized, and his name was recorded in the First Information Statement; the record did not establish that the prosecution case rested on a Section 67 statement by him or a recorded disclosure statement by a co-accused.

Although such statements cannot establish guilt at trial, that principle alone did not justify quashing the proceedings without examining the chargesheet and the material against the respondent.

The Court left open his opportunity to contest the sufficiency of that material at the cognizance or discharge stage.

It made no finding on the merits and left the respondent’s objections to be raised at the appropriate stage.

The respondent was directed to appear before the Special Court within two weeks; upon appearance, he was to be released on bail on terms fixed by that court, failing which steps could be taken to secure his apprehension and production.