NDPS Act | Co-Accused Cannot Be Found Guilty On Mere Suspicion When Complicity Is Not Proved: Telangana High Court

Post By 24law
February 24, 2025

Pranav B Prem

In a significant ruling, the Telangana High Court has reiterated that a co-accused cannot be convicted under the Narcotic Drugs and Psychotropic Substances (NDPS) Act based solely on suspicion or assumption, particularly when their complicity is not proven beyond a reasonable doubt.

Case Background

The case revolved around two accused (A1 and A2), who were traveling together to Bangkok. Based on an anonymous tip, Customs officials at Rajiv Gandhi International Airport, Hyderabad, intercepted their check-in luggage and discovered a false bottom in one of their bags. Upon further inspection, officials found a concealed black polythene bag containing a white crystalline powder, which, as per the accused’s statement, was identified as ketamine. Both A1 and A2 were booked under Section 23(c) read with Sections 28 and 29(1) of the NDPS Act. The trial court convicted both accused, relying on their joint travel and statements recorded under Section 67 of the NDPS Act.

High Court's Observations

Justice K. Surender, while delivering the judgment, emphasized that mere suspicion and assumption cannot form the basis of convicting A2 when there was no concrete evidence proving her complicity beyond reasonable doubt. The Court categorically stated: “The statement of an accused under Section 67 of the Act is inadmissible. Suspicion and/or assumption cannot form basis to find A2 guilty, when the complicity of A2 is not proved beyond reasonable doubt by the prosecution. Accordingly, benefit of doubt is extended to A2. However, conviction of A1 is confirmed.”

Key Legal Findings

1. Statements Under Section 67 of the NDPS Act Are Inadmissible

The Court noted that the trial court had heavily relied on statements recorded under Section 67 of the NDPS Act. However, as per settled legal position, such statements are inadmissible as evidence against the accused. The High Court ruled that statements made by A1 and A2 under Section 67 could not be used to establish guilt.

2. Co-Travelling Alone Does Not Prove Complicity

The prosecution argued that A2’s clothes were found in the suitcase containing the contraband. However, the Court rejected this argument, stating: “Though A2 traveled with A1, it is not sufficient proof to accept that the prosecution proved that A2 had knowledge about the drug being concealed in the bottom of the suit case. No evidence is produced by the prosecution or any investigation done as to where the concealment of the drug was done and whether A2 had knowledge about the drug.” The Court further held that the mere fact that A1 and A2 had booked tickets together and were traveling on the same PNR did not prove A2’s involvement in the illegal act.

3. Procedure Under Section 52-A of NDPS Act Cannot Be Challenged at Appellate Stage

A1 and A2’s counsel argued that the prosecution failed to comply with the mandatory procedures prescribed under Section 52-A of the NDPS Act, which governs the handling and disposal of seized contraband. However, the Court rejected this argument, holding: “The argument of the learned counsel for the appellants that Section 52- A of the Act was not followed, cannot be considered at the stage of appeal, when no such defence was taken during trial.” The Court referred to the Supreme Court’s decision in Bharat Aambale v. The State of Chhattisgarh, which established that non-compliance with Section 52-A alone would not be fatal unless it caused prejudice to the accused.

Final Verdict

While confirming A1’s conviction, the High Court set aside A2’s conviction, extending the benefit of doubt. The Court ruled: “The judgment of trial Court in S.C.No.21 of 2012 dated 26.09.2019, is set aside insofar as A2 is concerned, and confirmed with regard to A1. Since the Appellant/A2 is in jail, she is directed to be released forthwith, if she is not required in any other case.” Accordingly, Criminal Appeal No.1053 of 2019 was allowed, and Criminal Appeal No.1094 of 2019 was dismissed.