OM PARKASH BAKSHI Vs. STATE

JUDGEMENT

(1.) This criminal revision is directed against order of an Additional Sessions Judge by which he had directed for framing of charges against the petitioner and his co-accused for offences punishable u/s 22 & 29 of the Narcotic Drugs and Psychotropic Substances Act ('NDPS Act') read with Section 120-B IPC.

(2.) The facts, in brief, are that ASI Partap Singh accompanied by other constables was stated to be patrolling the area on July 8, 1987. and had reached at about 7 P.M. near the corner of Martial Tito Marg, close to Raj Kumari Amrit Kaur Nursing College, and he found the petitioner and his co-accused Amarjit Singh quarrelling and were snatching one book from each other and under the process the cover of the book had been torn into two pieces and each piece was found to contain a packet each. The Assistant Commissioner of Police and the S.H.O. had been called to the spot before taking search and those packets were found to contain morphine powder weighing 110 gms and after taking sample of 5 gms, the sample and the remaining morphine and the said book and the torn covers were sealed in three separate sealed parcels. Before effecting recovery Amarjit Singh had been enquired as to what the matter was and he had made a statement that in 1979 he had paid Rs. 5,000.00 to Om Parkash and the said morphine was concealed in the said book for sending the same to Canada but the same could not be sent to Canada and Om Parkash was refusing to return the money and on telephone he was called back with the book and before giving him money the book was demanded back but as he wanted the money to be shown, which was not shown, so the book was being snatched.

(3.) The learned counsel for the petitioner has vehemently argued that a statement of co-accused could not have been made the basis of framing a charge of conspiracy as no other evidence had been collected by the prosecution to prove the charge of conspiracy. The charge framed by the lower court in that respect should be quashed. The challan had been filed by the prosecution only for an offence punishable u/s 21 of the NDPS Act. It appears that the learned trial Court has framed the charge of conspiracy on the basis of the statement made by the co-accused. It is settled law that the statement of a co-accused is not substantive piece of evidence. So, obviously the charge could not have been framed on the basis of such a statement of co-accused.