TMI Blog2009 (5) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... llenges the order dated 4th June 2008 framing charges against the petitioner and two other co-accused for the offence of entering into a criminal conspiracy to possess and transport heroin inter-state 14.871 kgs net heroin (having percentage 60.1% to 64.7%) from one place to another place in front of house No. 60, H-3 Block, Vikas Puri, Delhi, thereby committing an offence punishable under Section 21(c) read with Section 29 NDPS Act and also substantively under Section 29 NDPS Act. 2. According to the Respondent Directorate of Revenue Intelligence (DRI) at around 6 p.m. on 8th September 2007, a secret information was received by Madan Singh, Investigating Officer (IO) DRI that a person aged around 34 years old would bring some narcotic d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lliams. At that point in time, the officers of the DRI intercepted both the vehicles. The occupants of the Opel Corsa car tried to prevent the DRI officers from stopping their car. They started shouting as a result of which local residents started gathering there. Since the place was not suitable to conduct the search, the accused persons were taken to the DRI Office at the 7th floor, Drum Shaped Building at I.P. Estate, New Delhi. There the accused persons were served with notice under Section 50 of NDPS Act at about 1.30 am on 9th September 2007. The bags were found to contain 14.871 kg heroin. 5. During the investigation, the statements of petitioner and other co-accused were recorded. According to the respondent DRI, the petitioner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that in terms of the decision of the Supreme Court in Noor Aga v. State of Punjab 2008 VII AD (S.C.) 435, the retracted statement of the petitioner under Section 67 of the NDPS Act cannot form a substantial piece of evidence. It is pointed out that the statement of the co-accused Williams, recorded also under Section 67 of the NDPS Act, does not indict the petitioner at all. In the circumstances, it there was not even a prima facie case made out for proceeding against the petitioner for the aforementioned offences. 8. On behalf of the DRI, Mr. Shishir Aggarwal, the learned Advocate submits that at the stage of charge the trial court is not expected to minutely examine the evidence. It is only expected to ascertain if there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner could not be said to have even transported the drug. 10. The wording of Section 21 NDPS indicates that the offence gets attracted only if at least one of the contingencies mentioned therein is attracted. On the facts of the present case, counsel for the DRI was only seeking to bring the present case under the offence of being in possession of a narcotic drug. Clearly, on the facts as narrated the petitioner was not in possession of the narcotic drug. The petitioner was not in any physical contact with the bags containing the drug in question. It was his co-accused passenger, Williams, who was sitting in the rear seat. The two Polythene bags containing 14.871 kgs of heroin were dropped off on the rear seat. The Petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re William told me to park the vehicle at the main entrance near the park.... 12. It is plain from the above statement that barring the words used by the petitioner that he knew that drugs going to be delivered, there is no other independent witness to prove this fact. The statement of the co-accused Williams also does not make any reference to the role of the petitioner herein. The further admitted position that the petitioner has retracted the above statement as not being voluntary. 13. In Noor Aga v. State of Punjab it was emphasized that in order to be admissible in evidence the statement under Section 67 must definitely be shown to be voluntary. In the present case, the DRI has failed to show that the statement made by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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