Charge Needs Suspicion Based on Admissible Evidence: Rajasthan High Court Sets Aside NDPS Charge Resting on Co-Accused’s Statement

FIR No. 20/2018 at Sheo Police Station, Barmer alleged narcotics recovery from two persons (paras 2-3). One of them told the police, in a statement the Court describes as made under Section 27 of the Evidence Act, that he had bought the seized milk of opium from a person in Madhya Pradesh (para 3). On 20.02.2019 the trial Judge charged the petitioner, though no witness from that village was examined to identify him as that person (paras 2-3). His identity documents showed him as Bhopal Singh, son of a different father, and a Sarpanch’s certificate in the charge-sheet papers said he has no alias ‘Pappu Singh’ (para 3). The State replied that suspicion suffices at the charge stage (para 5).

The Court held that there was no direct material that the petitioner is the person named in the co-accused’s statement, and that on the basis of that statement, made while in police custody and, in the Court’s words, recorded under Section 27 of the Evidence Act, the petitioner cannot be arrayed as an accused in the trial (para 4). It quoted Tofan Singh v. State of Tamil Nadu: a statement recorded under Section 67 of the NDPS Act is not even in the nature of a confessional statement and cannot be taken into account to convict (para 4). Accepting that suspicion of an offence can be a ground to put an accused on trial, the Court held that the suspicion must be based on legally admissible evidence; without legal evidence usable at trial, the petitioner’s fundamental right to a fair criminal prosecution must be protected (para 6). The petitioner’s identity had also not been connected with ‘Pappu Singh’, and the police record filed with the charge-sheet showed he was never called by that name. The trial court ignored this, and its order suffered from illegality and impropriety (para 7).