Isabella Mariam

The High Court of Bombay Single Bench of Justice Milind N. Jadhav held that the invocation of charges under the NDPS Act against the applicant in a case involving alleged contraband procurement was not legally sustainable. The Court quashed the orders passed by the Special Judge rejecting the applicant’s discharge plea and directed that the applicant be discharged from all charges under the Narcotic Drugs and Psychotropic Substances Act, 1985. The Court concluded that the prosecution had failed to comply with essential procedural mandates under the Code of Criminal Procedure, 1973, particularly concerning the joinder of charges.

Justice Jadhav exercised the Court’s powers under Sections 397 and 401 of Cr.P.C. to rectify what was described as a "patent defect or an error of jurisdiction or law". The Court noted that the framing of charges against the applicant was based solely on hearsay evidence in the form of WhatsApp chats and lacked any material connection to the alleged offences. In doing so, the Court allowed the Criminal Revision Application and set aside the impugned orders, stating unequivocally that the continuation of proceedings under the present charges would be impermissible in law.

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The case stems from proceedings initiated under the Narcotic Drugs and Psychotropic Substances Act, 1985, against an applicant alleged to have procured small quantities of Mephedrone (MD) from a co-accused over an extended period. The prosecution's case originated when Accused No.1, Muzammil Shaikh, was apprehended during a routine patrolling operation by the ANC Bandra Unit near the HDIL Tower in Bandra (E), Mumbai. He was allegedly found in possession of 35 grams of the contraband substance and his mobile phone was seized.

Upon examination of the seized device, law enforcement authorities discovered WhatsApp messages allegedly exchanged between Accused No.1 and the applicant. The prosecution asserted that these messages evidenced the applicant’s procurement of MD over 18 months, from July 2019 to January 2021. It was claimed that the applicant made 15 monetary transactions, totalling Rs. 24,700/-, to purchase 1 or 2 grams of the substance on multiple occasions.

Based on the WhatsApp exchanges, the prosecution charged the applicant under Sections 8(c), 22(b), 27-A, and 29 of the NDPS Act. The prosecution alleged that the applicant conspired with Accused No.1 in the trafficking of contraband and acted as a channel for distribution. It was also alleged that the applicant instructed Accused No.1 to deliver the contraband to different addresses and shared his contact with acquaintances in return for discounts or commissions.

The applicant challenged these allegations, contending that the charges were baseless and framed without the application of mind. His legal counsel argued that the charges violated Sections 218 and 219 of the Code of Criminal Procedure, which govern joinder and separation of charges for distinct offences. The defence stated that even if procurement of contraband were assumed, the quantities involved were below the threshold for major offences under the NDPS Act and did not justify charges under Sections 22(b), 27-A, or 29.

The Special Judge had earlier rejected both the Discharge Application and a subsequent Clarification Application filed by the applicant. The applicant filed a Criminal Revision Application under Sections 397 and 401 Cr.P.C., seeking to set aside the impugned orders.

Justice Jadhav meticulously examined the legal and procedural framework governing the case. He recorded that "the object of this provision [Section 397 Cr.P.C.] is to set right a patent defect or an error of jurisdiction or law." The Court stated that "revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely."

The Court observed that the prosecution's reliance on WhatsApp chats as incriminating evidence was unfounded. "Neither said WhatsApp chats refer to name of any alleged contraband or even MD which is alleged to have been trafficked nor any of the amounts paid reflect payment against any alleged contraband when read." The Court further stated that "prosecution case qua Applicant is merely based on hearsay primarily because of WhatsApp conversation chats... which do not mention name of any contraband."

Addressing the charges under Sections 218 and 219 Cr.P.C., the Court remarked: "Prima facie when Section 218 is read, such charge by prosecution on the face of record appears to be preposterous." It noted that the alleged offences were more than three in number and extended beyond a twelve-month period, thereby contravening Section 219. The Court cited precedent including Reg vs Hanmanta (1877) ILR 1 Bom 610 and MP Srivastava v. Sqn Ldr. KV Vashist, reinforcing that a person may only be tried for three separate offences committed within a year.

On the issue of conspiracy, the Court declared: "allegation of conspiracy between Accused Nos. 1 and 2 from the alleged WhatsApp chats is not proved when the said chats are specifically read." It further recorded that "no live link or nexus whatsoever is established by prosecution to proceed against Applicant." The Court found the prosecution's arguments lacking, noting that "no case is made out for the Applicant to stand trial."

In reference to Section 27-A, the Court held: "None of the ingredients of Section 27-A are prima facie present in the present case qua Applicant." Citing Karan Talwar Vs. State of Tamil Nadu, the Court reiterated that "confessional statement of co-accused by itself cannot be the reason for his implication in the crime." The Court also cited Suresh Budharmal Kalani v. State of Maharashtra (1998) 7 SCC 377, stating that such confessions alone are insufficient for framing charges.

The Court concluded its observations by stating: "Prosecution cannot be permitted to decipher and follow its own procedure for levying of charge of such a serious nature which is impermissible under the provisions of the statute."

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Justice Jadhav issued a series of directives based on the findings. He held that: "Orders dated 04.07.2023 and 07.10.2023 passed under Exhibit 16 and Exhibit 20 respectively in NDPS Special Case No.711 of 2021 are quashed and set aside. Discharge Application of Applicant below Exhibit 16 is allowed."

The Court declared that: "Applicant is discharged under Section 8(c) r/w 22(b), 27A and 29 of NDPS Act in NDPS Special Case No.711 of 2021."

Further, the Court disposed of the revision petition stating: "Criminal Revision Application No.183 of 2024 is allowed and disposed in the above terms."

Advocates Representing the Parties:

For the Petitioner: Mr. Ayaz Khan, Mr. Dilip Mishra, Ms. Zehra Charania, Ms. Serena Jethmalani, and Ms. Mallika Sharma, Advocates.

For the Respondent: Mr. Hitendra J. Dedhia, APP.

Case Title: Dhruv Dalip Tahil vs State of Maharashtra

Neutral Citation: 2025: BHC-AS:22574

Case Number: Criminal Revision Application No.183 of 2024

Bench: Justice Milind N. Jadhav

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