SHASHI KANT GUPTA, J. - (1.) HEARD learned counsel for the applicant, learned A.G.A. and perused the record.
(2.) AS per prosecution story 16.500 Kg. Charas was recovered from the Bulero Car which was in the possession of the accused persons including the applicant. It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated. He further submitted that the applicant has been roped in the matter on the basis of the confessional statement of the co-accused which cannot be relied upon or read as evidence against the applicant for the purpose of prosecuting or convicting the applicant under the NDPS Act. He further submitted that the proper identification parade has not been conducted as per Section 9 of the Indian Evidence Act and the Bolero Car from which the alleged recovery was made does not belong to the applicant. He further submitted the Investigating Officer has also not followed the mandatory provision of Section 50 of the NDPS Act at the time of arrest and recovery has not been mentioned in the format while complying the provisions of Section 50 of the NDPS Act. He further submitted that after a lapse of 15 days, the recovered contraband was sent to the laboratory for examination and there is no concrete evidence on record which may connect the applicant with the alleged offence. He further submitted that the provisions of Sections 42 and 54 of the NDPS Act, which are absolutely mandatory in nature, have been completely overlooked, as such, the recovery alleged to have been made by the police from the possession of co accused Suresh Srivastava and Tauheed is also doubtful. He further submitted that the applicant has been implicated in the present case merely on the basis of confessional statement of the aforementioned co accused which has no evidentiary value at all in the eyes of law and without there being any cogent evidence against the applicant, merely basing on the confessional statement of the co accused, the accused applicant can not be asked to face the trial. In support of his contention, learned counsel for the applicant referred to the decision of this Court in Pradeep Kumar Jain alias Babbe Vs. State of UP and another (2203 CRI. L. J. 682) wherein it has been held that if no evidence could be collected during investigation, confessional statement of the co-accused cannot be made use of against him and continuance of criminal proceedings would amount to abuse of process of Court. He further submitted that the applicant was not arrested on the spot and no recovery of any contraband substance either from his possession or at his instance was made, as such, no offence is made out against the applicant. He further submitted that the alleged recovery has been planted by the prosecution just to harass, victimse, exert undue pressure and extract illegal money from the applicant .He further submitted that the statement of the complainant recorded under Section 161 CrPC cannot be relied upon since deliberate improvement has been made in the statement just to justify the prosecution story.
(3.) HE further submits that the prosecution story is not supported by any independent witness. It is further submitted that neither the alleged vehicle belongs to the applicant nor the said contraband was recovered from the possession of the applicant. He further submitted that since the prosecution could not prove the applicant's ownership and possession of the alleged vehicle as well as the contraband in question, the applicant can not be held guilty for the alleged offence. He further submits that the case of the applicant is distinguishable from the case of other co accused Suresh Srivastava and Tauhid He further submits that the applicant is not involved in any other case of N.D.P.S. Act and he is in Jail since 20.3.2011.;