Case Background
This case arose from a criminal revision filed before the Patna High Court against an order of the Sessions Judge-cum-Special Judge, NDPS, Bettiah, West Champaran.
The prosecution story started on 26.12.2016. On that morning, a Police Sub-Inspector, acting as informant, was posted at Town Police Station, Bettiah. He received specific information that one person, referred to as Md. Saheb, was selling “smack” at Naurangabag.
The informant says he informed his senior officer. A raiding team was then constituted. The team proceeded to Naurangabag, near the house disclosed by the informer. They surrounded the house and, in the presence of two independent witnesses, Nagendra Mishra and Prabhawati Devi, got the door opened.
According to the written report, one man, identified as Md. Saheb, emerged from the house. After obtaining his consent for search and following the required rules, the raiding team searched the premises. During this search, they allegedly recovered 200 grams of smack from the jacket of Md. Saheb.
On further inquiry at the spot, Md. Saheb is stated to have said that the smack had been supplied to him by the present petitioner, through one person named Wahab Mukhiya. The contraband was seized, sealed and a seizure list was prepared.
On the basis of this written report, Bettiah Town P.S. Case No. 718 of 2016 was registered on 26.12.2016 for offences under Sections 20, 23, 25, 27(A) and 29 of the NDPS Act against three accused persons, including the present petitioner.
After investigation, a separate charge-sheet was submitted against the petitioner. The Special Court took cognizance and, at the stage of framing of charge, the petitioner filed an application for discharge under Section 227 of the Cr.P.C.
By order dated 19.01.2019 in Trial No. 46 of 2017, the Sessions Judge/Special Judge, NDPS, Bettiah dismissed the discharge application. Subsequently, on 15.04.2019, charges were framed against the petitioner under Sections 21(b), 22(b) and 23(b) of the NDPS Act.
The petitioner then approached the Patna High Court in Criminal Revision No. 455 of 2019, challenging the rejection of his discharge application and the consequent framing of charge.
What the Court Examined and Decided
The Patna High Court, presided over by Hon’ble Mr. Justice Jitendra Kumar, heard the matter and focused on one central question: whether there was any legally admissible material on record that could justify making the petitioner stand trial under the NDPS Act.
On behalf of the petitioner, it was argued that he was innocent and had been falsely implicated. The defence stressed that there was no recovery of any contraband from the petitioner’s house or from his personal possession, despite a raid being conducted at his house.
The core submission was that the only material linking the petitioner to the alleged offence was the confessional statement of co-accused Md. Saheb. This statement was recorded under Section 67 of the NDPS Act. The petitioner’s counsel contended that, in light of the Supreme Court judgment in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, such a confession made to an NDPS officer, who is treated as a “police officer”, is inadmissible in evidence under Section 25 of the Evidence Act.
The petitioner also relied on the Supreme Court decisions in Dipakbhai J. Patel v. State of Gujarat (2019) 16 SCC 547 and Karan Talwar v. State of Tamil Nadu (2024 INSC 1012, 2024 SCC Online SC 3803). These cases stress that even at the stage of framing of charge, the suspicion against an accused must be based on material which can be converted into admissible evidence at trial. If the only material is an inadmissible confession, no charge should be framed.
On the other hand, the learned APP for the State defended the Special Court’s order. He argued that there was no illegality or infirmity. He referred to Section 30 of the Evidence Act and submitted that the confession of a co-accused is relevant and admissible against the petitioner. On this basis, he argued that there was nothing wrong in framing charges against the petitioner on the strength of the co-accused’s confessional statement, and the revision petition deserved dismissal.
The High Court first revisited the settled principles of law on when criminal proceedings or charges can be interfered with. It observed that the power to quash such proceedings is to be exercised very sparingly and in the rarest of rare cases. At the stage of framing charge, the Court is to see only whether uncontroverted allegations, on their face, make out a prima facie case.
The Court emphasised that, at this stage, there should be no “mini trial”. The evidence is not to be weighed for conviction; rather, the question is whether there is sufficient ground to presume that the accused has committed an offence. The material of the prosecution is to be accepted as true, without going into its probative value. Even strong suspicion, based on material, is enough for framing of charge.
However, the High Court underscored an important limitation drawn from several Supreme Court decisions, especially Dipakbhai J. Patel. While strong suspicion is enough, it must be based on material which can be “translated into evidence” at the stage of trial. If the only material is one that the law treats as inadmissible, then there is effectively no legal basis to put a person through the ordeal of trial.
In this context, the High Court quoted paragraph 23 of Dipakbhai J. Patel, where the Supreme Court explained that the court, at the stage of charge, must sift the material, not as in a full trial, but enough to see if there is some material capable of being evidence. Suspicion cannot rest merely on the subjective moral notions of a judge; it must have a legal foundation in admissible material.
The High Court then referred to Karan Talwar, where the Supreme Court held that if the only material against an accused in an NDPS case is the confessional statement of a co-accused, and such confession is inadmissible under Section 25 of the Evidence Act, it cannot form the basis to make a person stand trial. Forcing a person to face trial in such circumstances would amount to miscarriage of justice.
Coming to the State’s reliance on Section 30 of the Evidence Act, the High Court gave a careful interpretation. It held that even under Section 30, only a “legally admissible” confession of a co-accused can be considered relevant against another accused. Further, Section 30 applies in the context of a joint trial, and the confession must be of such nature that it can be proved in that trial.
The Court made it clear that an inadmissible confession, such as one hit by Section 25 of the Evidence Act, cannot be proved during the trial at all. Therefore, when Section 30 refers to a confession, it necessarily means an admissible confession, not one barred by law. On this reasoning, the public prosecutor’s reliance on Section 30 could not cure the basic problem of inadmissibility.
The High Court then applied these principles to the present case. It noted that the only material against the petitioner was the confessional statement of co-accused Md. Saheb recorded under Section 67 of the NDPS Act, where he claimed that the petitioner supplied smack to him through Wahab Mukhiya.
Importantly, despite a raid at the petitioner’s house, nothing was recovered from his house or from his possession. There was no independent recovery or corroborative material connecting him to the contraband, apart from this statement of the co-accused.
The Court then referred to the Constitution Bench judgment in Tofan Singh. In that landmark case, the Supreme Court held that officers empowered under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act. As a result, any confessional statement made to such officers, including statements recorded under Section 67 of the NDPS Act, is barred by Section 25 and cannot be used to convict an accused under the NDPS Act.
The Patna High Court further noted the recent Supreme Court decision in Najmunisha v. State of Gujarat, 2024 SCC OnLine SC 520, which reaffirmed Tofan Singh. In Najmunisha, the Supreme Court again held that a statement recorded under Section 67 of the NDPS Act cannot be treated as a basis to convict an accused under the NDPS Act.
In light of these binding precedents, the High Court concluded that the statement of co-accused Md. Saheb under Section 67 was clearly inadmissible in evidence. Since this was the only piece of material against the petitioner, there was no legally admissible material that could even create a suspicion, let alone make out a prima facie case.
The Court held that, in such a situation, the Special Court should have allowed the application for discharge under Section 227 Cr.P.C. Instead, it had erroneously dismissed the application and proceeded to frame charges. This, the High Court found, was not sustainable in law.
Accordingly, the High Court allowed the criminal revision. It quashed and set aside the impugned order dated 19.01.2019 of the Sessions Judge/Special Judge, NDPS, Bettiah in Trial No. 46 of 2017 and allowed the petitioner’s application for discharge under Section 227 Cr.P.C. As a result, the petitioner stands discharged from the NDPS case.
Why This Judgment Matters
This judgment is significant for anyone facing NDPS charges in Bihar and beyond, especially where the only link to the crime is a statement made by a co-accused to the police or NDPS officers.
The Patna High Court has reaffirmed that a person cannot be forced to go through the hardship of a long NDPS trial when the only material against them is a confession which the law treats as inadmissible. This provides important protection against false implication based only on statements by others in police custody.
The decision also clarifies that Section 30 of the Evidence Act does not allow the use of an otherwise inadmissible confession. Only confession that can legally be proved at trial can be used even against co-accused. This ensures that basic rules of evidence are not bypassed in serious cases like NDPS prosecutions.
Practically, this judgment will guide Special Courts in Bihar when they deal with discharge applications in NDPS cases. It reminds them that they must check if the material can actually become admissible evidence at trial. If not, the accused should not be made to stand trial.
Legal Issues and Answers
- Issue: Can an accused be made to face trial under the NDPS Act when the only material against him is a confessional statement of a co-accused recorded under Section 67 of the NDPS Act?
Answer: No. Following Tofan Singh, Najmunisha, and other Supreme Court precedents, such a confession is inadmissible under Section 25 of the Evidence Act. As it cannot be translated into admissible evidence at trial, it cannot form the basis for framing charges. The accused is entitled to discharge. - Issue: Does Section 30 of the Evidence Act make an otherwise inadmissible confession of a co-accused usable against another accused at the stage of framing charge?
Answer: No. Section 30 applies only to legally admissible confessions that can be proved during a joint trial. It cannot revive or validate a confession that is barred by Section 25 of the Evidence Act. - Issue: What standard must be applied at the stage of framing charge in serious criminal cases like NDPS prosecutions?
Answer: The Court may frame charges on the basis of strong suspicion, but that suspicion must rest on material capable of being admissible evidence at trial. If no such material exists, making an accused stand trial would be a miscarriage of justice, and discharge under Section 227 Cr.P.C. is warranted.
Cases Cited by the Court
- Tofan Singh v. State of T.N., 2021 (4) SCC 1
- Najmunisha v. State of Gujarat, 2024 SCC OnLine SC 520, AIRONLINE 2024 SC 306
- Dipakbhai J. Patel v. State of Gujarat, (2019) 16 SCC 547
- Karan Talwar v. State of Tamil Nadu, 2024 INSC 1012, 2024 SCC Online SC 3803
- State of T.N. v. R. Soundirarasu, (2023) 6 SCC 768
- CBI v. Aryan Singh, 2023 SCC OnLine SC 379
- G. H. Beigh v. Mohd. Maqbool Magrey, (2022) 12 SCC 657
- Saranya v. Bharathi, (2021) 8 SCC 583
- State of Odisha v. Pratima Mohanty, 2021 SCC OnLine SC 1222
- State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515
- State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709
- Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460
- P. Vijayan v. State of Kerala, (2010) 2 SCC 398
- Sajjan Kumar v. CBI, (2010) 9 SCC 368
- Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC 561
- Soma Chakravarty v. State, (2007) 5 SCC 403
- State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568
- K. Ramakrishna v. State of Bihar, (2000) 8 SCC 547
- State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338
- State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659
- Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4
Case Details
Case Number: Criminal Revision No. 455 of 2019; arising out of Bettiah Town P.S. Case No. 718 of 2016
Case Title: Aslam @ Md. Aslam Ali @ Aslam Ali v. The State of Bihar
Citation: 2025 (3) PLJR 762
Court: High Court of Judicature at Patna
Coram: Hon’ble Mr. Justice Jitendra Kumar
Date of Judgment: 06.02.2025
Advocates:
- For the Petitioner: Mr. Ajay Kumar Thakur, Advocate; Ms. Vaishnavi Singh, Advocate; Mr. Ritwik Thakur, Advocate; Mr. Pranshu, Advocate
- For the State: Mr. Upendra Kumar, APP
Nature of the Case: Criminal revision challenging rejection of discharge application under Section 227 Cr.P.C. in an NDPS Special Court trial
Impugned Order: Order dated 19.01.2019 passed by the Sessions Judge, Bettiah, West Champaran in Trial No. 46 of 2017 (Special Court, NDPS), rejecting discharge under Section 227 Cr.P.C.
Final Outcome: Criminal revision allowed; impugned order quashed; petitioner discharged under Section 227 Cr.P.C.
Link to Judgment: Patna High Court Judgment – Criminal Revision No. 455 of 2019
If you found this explanation helpful and wish to stay informed about
how legal developments may affect your rights in Bihar,
you may consider following Samvida Law Associates for more updates.
