The Calcutta High Court has reaffirmed that a criminal prosecution under the NDPS Act cannot proceed solely on the basis of an inadmissible confessional statement made by a co-accused to police, absent any corroborative evidence linking the accused to the offence. This ruling provides critical clarity for defence practitioners facing cases built on uncorroborated police-recorded confessions.
Background & Facts
The Dispute
The petitioner, Aasif Mohammad @ Asif @ Viki of Meerut, Uttar Pradesh, was named as an accused in a narcotics case registered by Malda Police Station on 12.11.2021 under Sections 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) read with Sections 18(b)/27 of the Drugs & Cosmetics Act, 1940. The case arose from the interception of a Tata Truck (UP15CT2770) at Narayanpur Popra More, Malda, where 20,000 bottles of Phensedyl, three mobile handsets, and Rs. 6,500 in currency were recovered. The co-accused, Masroor and Md. Arif, allegedly confessed during police interrogation that the contraband belonged to the petitioner and was destined for Shyam of Gangarampur, Dakshin Dinajpur.
Key Facts
- The petitioner was not present at the time of recovery or arrest.
- No contraband, currency, or mobile phones were recovered from the petitioner’s possession.
- The investigating agency alleged the petitioner was the mastermind behind the racket, using mobile numbers 8001419887 and 9120888444 to coordinate with the arrested accused.
- The petitioner denied ownership of the mobile numbers and submitted that the SIM cards were not registered in his name.
- The prosecution produced no call detail records, financial trails, or electronic evidence linking the petitioner to the co-accused.
- The petitioner was granted anticipatory bail by the Calcutta High Court on 08.06.2022, with the court noting the absence of prima facie evidence against him.
Procedural History
- 12.11.2021: Malda Police Station Case No. 556 of 2021 registered under NDPS Act and DC Act.
- 08.06.2022: Petitioner filed C.R.M.(A) No. 2441 of 2022 for anticipatory bail; granted by the Calcutta High Court.
- 07.05.2022: Charge Sheet No. 242 of 2022 filed against seven accused, including the petitioner, based solely on co-accused confessions.
- 2022 - 2023: No additional evidence collected or produced against the petitioner.
- 2023: Petitioner filed the present Criminal Revisional Application under Section 482 Cr.P.C. seeking quashing of proceedings.
- 06.04.2026: Judgment delivered by the Calcutta High Court.
The Parties' Positions
For the Petitioner: Argued that the prosecution relied exclusively on inadmissible confessional statements of co-accused, with no independent evidence connecting him to the offence. Cited Karan Talwar v. State of Tamil Nadu and Tofan Singh v. State of Tamil Nadu to assert that Section 25 of the Indian Evidence Act renders police confessions inadmissible against co-accused.
For the State: Contended that the petitioner’s involvement was established through the confessions of the arrested accused, who named him as the owner of the contraband and the orchestrator of the drug supply chain. Asserted that the seriousness of the offence warranted continuation of proceedings.
Relief Sought
The petitioner sought quashing of Special Case No. 125 of 2021 pending before the Special 3rd Court, NDPS Act, Malda, insofar as he was concerned, on grounds of absence of evidence and abuse of process.
The Legal Issue
Can a criminal prosecution under the NDPS Act proceed against an accused solely on the basis of an inadmissible confessional statement made by a co-accused to police, where no independent evidence links the accused to the offence?
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that under Section 25 of the Indian Evidence Act, 1872, any confession made to a police officer is inadmissible as evidence against any person. Relying on Karan Talwar v. State of Tamil Nadu and Tofan Singh v. State of Tamil Nadu, counsel emphasized that such confessions cannot form the sole basis for framing charges or sustaining prosecution. The prosecution had failed to produce call records, SIM registration details, financial transactions, or any physical evidence connecting the petitioner to the seized goods. The High Court had already noted this absence while granting anticipatory bail. The petitioner’s implication was arbitrary and amounted to harassment.
For the Respondent
The State contended that the confessional statements of the arrested co-accused, who were caught red-handed with the contraband, provided sufficient grounds to implicate the petitioner as the mastermind. It was argued that the nature of narcotics trafficking often involves indirect evidence and that the petitioner’s mobile numbers were referenced in the investigation. The State did not produce any additional evidence beyond the confessions.
The Court's Analysis
The Court conducted a meticulous review of the charge sheet and case diary and found no material linking the petitioner to the offence. The prosecution’s entire case rested on the confessional statements of the co-accused, which were recorded during police custody. The Court held that Section 25 of the Indian Evidence Act unequivocally bars the use of such statements as evidence against any accused, including co-accused. The Court cited Tofan Singh v. State of Tamil Nadu to affirm that even under the NDPS Act, confessions made to police officers are inadmissible under Section 25, and cannot be used to establish guilt.
"As noted earlier, the accusation against the appellant is commission of offence punishable under Section 27(b) of the NDPS Act... the confession statement of the co-accused by itself cannot be the reason for his implication in the crime."
The Court further relied on Karan Talwar, where the Supreme Court held that a confession of a co-accused cannot be the sole basis for framing charges or initiating trial, especially when no recovery, call records, or financial trail connects the accused. The Court observed that the investigating agency had not subjected the petitioner to any medical examination, seized any property from him, or established any telephonic or financial nexus. The absence of even prima facie evidence rendered the continuation of proceedings against the petitioner a clear abuse of process.
The Court emphasized that subjecting an innocent person to trial without any corroborative evidence is a violation of Article 21 of the Constitution and constitutes a miscarriage of justice. The Court noted that the High Court had already granted anticipatory bail on the same grounds, reinforcing the absence of a prima facie case.
The Verdict
The petitioner succeeded. The Calcutta High Court quashed Special Case No. 125 of 2021 pending before the Special 3rd Court, NDPS Act, Malda, insofar as the petitioner, Aasif Mohammad @ Asif @ Viki, is concerned. The Court directed that all proceedings against him be terminated. The case diary was ordered to be returned to the State’s counsel. All interim orders stood vacated.
What This Means For Similar Cases
Confessions to Police Are Not Evidence
- Practitioners must immediately challenge any prosecution relying solely on police-recorded confessions of co-accused under the NDPS Act.
- File applications under Section 482 Cr.P.C. for quashing where no independent evidence exists.
- Cite Tofan Singh and Karan Talwar to establish that Section 25 of the Evidence Act applies fully to NDPS cases.
No Recovery = No Case
- In narcotics cases, absence of recovery from the accused is fatal to the prosecution’s case.
- Even if the accused is named in a confession, the prosecution must establish a tangible link - call records, financial transactions, possession, or witness testimony.
- Merely alleging someone is the "mastermind" without evidence is legally insufficient.
Anticipatory Bail as a Precedent Indicator
- Courts granting anticipatory bail on grounds of lack of evidence should be cited as persuasive authority in subsequent quashing applications.
- A bail order noting absence of prima facie case strengthens the argument for quashing under Section 482 Cr.P.C.
