Section 67 confessions and unspecified cooperation, without independent nexus, cannot sustain an NDPS conspiracy charge.

On 15 February 2023, the Central Narcotics Bureau searched premises in Chittorgarh allegedly connected with Rameshwar and Kalu and recovered narcotic substances.

The prosecution later implicated Bheru Lal, a distant brother-in-law of Rameshwar, principally on the basis of statements made by Rameshwar and Kalu under Section 67 of the NDPS Act and a statement attributed to Bheru Lal himself.

No contraband was recovered from Bheru Lal, who was not present at the search.

His personal search yielded ₹68,500, which the prosecution alleged he intended to give to narcotics officials to secure favourable treatment for Rameshwar.

The Special Judge framed a charge against him under Section 8 read with Section 29 of the NDPS Act.

Bheru Lal challenged that order in revision under Sections 397 and 401 CrPC.

1. Whether the prosecution material disclosed a prima facie basis to charge Bheru Lal under Section 8 read with Section 29 of the NDPS Act for abetment or participation in a criminal conspiracy to commit an NDPS offence

2. Whether the Section 67 statements and the recovery of ₹68,500 provided a legally sufficient basis to sustain that charge

At the charge-framing stage, the court may sift the prosecution material for the limited purpose of determining whether a prima facie case or grave suspicion exists, but it must not conduct a trial on the merits; Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, sets out the governing approach.

Section 29 of the NDPS Act requires material indicating abetment or participation in a criminal conspiracy to commit an offence under Chapter IV; association or a general allegation of cooperation alone is insufficient.

Under Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, a statement recorded under Section 67 of the NDPS Act cannot be used as a confession in an NDPS trial, and officers empowered under Section 53 are police officers for the purposes of Section 25 of the Evidence Act.

Such a statement cannot, without substantial independent material, supply the foundation for the prosecution.

The prosecution’s allegation that Bheru Lal had “cooperated” with the principal accused did not identify any act, transaction, or circumstance showing assistance in narcotics trafficking or participation in a conspiracy.

The Investigating Officer’s evidence, as described by the Court, confirmed that Bheru Lal was not at the recovery site, had no contraband in his possession, and was not independently connected to the alleged narcotic activity apart from the Section 67 statements.

Applying Tofan Singh, the Court found those statements could not supply the missing factual basis for Section 29.

Nor did the cash recovery establish the required nexus: even accepting the prosecution’s allegation about its intended use, there was no material connecting the money to the procurement, transport, financing, or other commission of an NDPS offence.

Taken together, the material did not establish sufficient grounds to presume abetment or conspiracy.

It clarified that its observations were confined to Bheru Lal and would not prejudice the proceedings against the other accused.