Positive Proof To Support Conspiracy Charge Needed When Prosecution Intends To Club Contraband Recovered From Accused Persons Together: Supreme Court

The accused-appellant had approached the Apex Court through appeals by special leave, assailing the common judgment of the Division Bench of the Calcutta High Court, whereby his application filed under Section 374(2) of the Code of Criminal Procedure, 1973, was rejected on the grounds of being time-barred and delayed.

The Division Bench of Justice Aravind Kumar and Justice Sandeep Mehta held, “If at all the prosecution intended to bring home the charge of conspiracy, and club the contraband recovered from both the accused persons together, then positive proof to support the charge of conspiracy had to be presented. Such proof could not be substituted with mere inferences or conjectures. Positive and tangible evidence was necessary to establish, beyond reasonable doubt, that both accused persons had prior knowledge of the contraband in the other’s possession. However, upon carefully analysing the evidence available on record, we find that, apart from the bald allegation that both the accused were seen walking together and were searched one after the other, not even a semblance of evidence was led by the prosecution, which can substantiate the charge of prior conspiracy between the two accused persons.”

AOR Subhasish Bhowmick represented the Appellant.

Factual Background

A raiding team caught hold of two men allegedly carrying narcotic substances. After observation of necessary pre-search formalities, the search of the co-accused was conducted, and from his possession, a narcotic drug, suspected to be heroin, weighing about 130 gms., some cash, a ring and a key, being personal properties, were recovered. The accused-appellant was also searched, and a narcotic drug, suspected to be heroin, weighing 125 gms. was found stashed on his person, along with some cash, being his personal property. A small portion of the narcotic drug recovered from each of the detenues was tested by the drug testing kit, which gave a positive indication for the presence of heroin.

The gross weight of the narcotic substance recovered from both detainees came to be about 255 gms. The detenues were arrested and a charge-sheet was filed against both the accused for the offences punishable under Sections 21(c) and 29 of the NDPS Act. The Trial Court convicted both the accused persons. The accused-appellant was prevented from filing an appeal in time, and the appeal against conviction under Section 374 (2) CrPC, assailing the judgment of the trial Court, was presented in the High Court with a delay of 1183 days. This appeal was dismissed solely on the ground of delay. The said judgment was assailed before the Apex Court.

Reasoning

Considering the fact that the accused-appellant was incarcerated in prison from the date of his initial apprehension, the Bench stated that the rejection of the appeal on the sole ground of delay was too harsh and unjustified. “The High Court should have condoned the delay and decided the appeal on merits, keeping in view the fact that the accused-appellant was in custody, and did not have the financial wherewithal to file the appeal”, it said.

The Bench also mentioned, “Merely because the two accused, walking side by-side, were apprehended simultaneously, and both were carrying narcotic drug concealed on their body, the said coincidental happening, by itself, would not give rise to an inference that either of them had the knowledge about the contraband being carried by the other. These facts may give rise to a suspicion, but suspicion, however, cannot take place of proof.”

As per the Bench, apart from the bald allegation that both the accused were seen walking together and were searched one after the other, not even a semblance of evidence was led by the prosecution, which could substantiate the charge of prior conspiracy between the two accused persons. It was further held that the Trial Court committed a grave factual error in concluding that the contraband heroin recovered from two distinct individuals could be clubbed together, so as to be covered under the commercial quantity (above 250 gms.).

The Bench further highlighted the glaring infirmities and discrepancies in the process of seizure, and collection of samples undertaken by the seizure officer. “In view of the above discussion, this Court is compelled to hold that there has been a complete and unexplained failure to adhere to the requirements of Section 52A. Neither representative samples were drawn in the presence of a Magistrate, nor was the inventory list prepared and certified, as required by law. These lapses strike at the very root of the prosecution case, rendering the integrity of the seizure and sampling process wholly doubtful”, it said.

The Bench also noted that the FSL report lost significance on account of the flawed sampling procedure undertaken by the seizure officer, coupled with the fact that there had been a total failure by the officer-in-charge to comply with the procedure provided under Section 52A of the NDPS Act. “In the wake of discussion made hereinabove, we are of the firm opinion that the FSL report cannot be read in evidence and consequently, there is no acceptable evidence on record to prove that the article recovered from the accused-appellant was the narcotic drug heroin, as defined under the Schedule to the NDPS Act”, it said.

Thus, quashing the impugned judgment, the Bench allowed the appeal and acquitted the accused-appellant.

Cause Title: Nadeem Ahamed v. The State of West Bengal (Neutral Citation: 2025 INSC 993)

Appearance

Appellant: AOR Subhasish Bhowmick, Advocates Manisha Pandey, Rahul Kushwaha, Suraj Kumar Singh, Ashutosh Singh, Rakesh Kumar Tiwari, Ajeet Kumar, Mani Mala Roy, Aniruddha Singha Roy

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