Aasif Mohammad @ Asif Mohammad @ Asif @ … vs The State Of West Bengal on 6 April, 2026

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    Calcutta High Court (Appellete Side)

    Aasif Mohammad @ Asif Mohammad @ Asif @ … vs The State Of West Bengal on 6 April, 2026

                                                                              2026:CHC-AS:547
    
    
    
    
                         IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL REVISIONAL JURISDICTION
                                 APPELLATE SIDE
    
    
         Present:
    
         The Hon'ble Justice Ajay Kumar Gupta
    
                                C.R.R. 4110 of 2022
    
               Aasif Mohammad @ Asif Mohammad @ Asif @ Viki
                                         Versus
                              The State of West Bengal
    
    
    
    
         For the Petitioner          :      Mr. Mrityunjoy Chatterjee, Adv.
                                            Mr. Arindam Poali, Adv.
    
         For the State               :      Mr. Saryati Dutta, Adv.
                                            Ms. Baishakhi Chatterjee, Adv.
    
    
         Heard on                    :      06.02.2026
    
         Judgment on                 :      06.04.2026
    
    
         Ajay Kumar Gupta, J.:-
    
    1.   The instant Criminal Revisional application under Section 482 of the
    
         Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') has been
    
         preferred by the petitioner seeking quashing of proceeding being
    
         Special Case No. 125 of 2021 arising out of Malda Police Station Case
    
         No. 556 of 2021 dated 12.11.2021 under Sections 21(c)/29 of the
                                           2
    
                                                                               2026:CHC-AS:547
    
    
    
    
         Narcotic Drugs and Psychotropic Substances Act, 1985 (in short
    
         'NDPS Act') read with Sections 18(b)/27 of Drugs & Cosmetics Act,
    
         1940 (in short 'DC Act') pending before the Learned Judge, Special 3 rd
    
         Court under NDPS Act, Malda.
    
         FACTS OF THE CASE: -

    2. The brief facts, leading to the filing of this instant Criminal Revisional

    application, are as follows: –

    SPONSORED

    a. On 12.11.2021, the police personnel of Malda Police Station lodged

    a suo moto complaint alleging, inter alia, that one Masroor, son of

    Late Islam, and Md. Arif, son of Ghurekha, both of Hazipur,

    Hapur, Uttar Pradesh, were apprehended with one Tata Truck

    bearing No. UP15CT2770 as per source information after hot

    chase at Narayanpur Popra More under Malda P.S. and recovered

    20,000 bottles of phensedyl, 3 pieces of mobile handsets, and

    genuine Indian currency of Rs. 6,500/-.

    b. It was further alleged that during interrogation, the detained

    accused persons confessed that the said seized smuggled items

    belonged to the petitioner herein, Asif @ Viki of Meerut, UP, having

    the mobile no. 8001419887 and 9120888444. They further

    submitted that the items were to be delivered to one Shyam of

    Gangarampur, Dakshin Dinajpur, in lieu of money.
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    2026:CHC-AS:547

    c. Based on such facts, a case being Malda Police Station Case No.

    556 of 2021, dated 12.11.2021, under Sections 21(c)/29 of the

    NDPS Act read with Sections 18(b)/27 of the DC Act, has been

    registered against four accused persons and an investigation was

    initiated.

    d. Upon getting to know about lodging the aforesaid false case, on the

    basis of confessional statement of the co-accused made before the

    police officer, the petitioner immediately filed an Anticipatory bail

    application being C.R.M. (A) No. 2441 of 2022 dated 08.06.2022

    and obtained Anticipatory Bail from the Hon’ble High Court.

    e. After completion of the investigation, the investigating agency

    submitted a charge sheet, being Charge Sheet No. 242 of 2022

    dated 07.05.2022 under Sections 21(c)/29 of the NDPS Act read

    with Sections 18(b)/27 of the DC Act against seven accused

    persons including the Petitioner although he was completely

    innocent and no evidence, even prima facie, was found against the

    petitioner.

    f. Being aggrieved by and dissatisfied with the initiation and

    continuation of the aforesaid criminal proceedings, the petitioner

    filed this Criminal Revisional application with aforesaid prayer.

    Hence, this application.

    4

    2026:CHC-AS:547

    SUBMISSION ON BEHALF OF THE PETITIONER: –

    3. Learned counsel appearing on behalf of the petitioner submitted that

    nothing has been recovered from the possession of the petitioner and

    the petitioner has been implicated falsely in the present case. The

    alleged mobile numbers disclosed by the co-accused do not belong to

    the petitioner, which has also been observed by this Hon’ble High

    Court, while granting bail to the petitioner. The report submitted

    before the Hon’ble High Court does not show that the petitioner was

    the owner of the SIM card/mobile phones, through which telephonic

    conversations had been made with the co-accused while

    transportation. Therefore, the petitioner has been granted

    Anticipatory bail by this Hon’ble High Court vide CRM (A) No. 2441 of

    2022 dated 08.06.2022.

    4. Learned counsel further submitted that the petitioner is completely

    innocent and in no way involved with the alleged offence and he was

    falsely implicated in this case, only on the basis of the statement of

    the co-accused. The name of the petitioner transpiring in the present

    case, on the basis of confessional statement of the co-accused before

    the police officer, is inadmissible evidence.

    5. Learned counsel further submitted that the Investigating Agency has

    already submitted the Charge Sheet being CS No. 242 of 2022 dated

    07.05.2022 under Sections 21(c)/29 of the NDPS Act read with
    5

    2026:CHC-AS:547

    Sections 18(b)/27 of the DC Act against seven accused persons

    before the Learned Chief Judicial Magistrate, Malda. However, the

    investigating agency has not been able to establish a nexus regarding

    the phone calls and/or any other link or connection with the co-

    accused persons in the instant case, who were arrested with the

    commercial quantity of Narcotics. There is no evidence against the

    petitioner.

    6. Learned counsel further submitted that even if the allegations in the

    FIR are taken to be true at face value and accepted in their entirety,

    they do not prima facie constitute any offence or make out any case

    against the petitioner and the instant criminal proceeding is

    manifestly attended with a mala fide intention with an ulterior motive

    for wreaking vengeance on the accused person. The allegations are

    absurd and inherently improbable, and on the basis of the same, no

    prudent person can conclude that there are sufficient grounds for

    proceeding against the petitioner herein.

    7. Finally, the learned counsel submitted that in the present case,

    permission of Court proceeding may degenerate into a weapon of

    harassment or prosecution and, in such circumstances, in the

    interest of justice, it would be justified for this Hon’ble High Court to

    quash the criminal proceeding.

    6

    2026:CHC-AS:547

    8. Learned advocate has further relied upon the decision in the case of

    Karan Talwar Vs. State of Tamil Nadu1 particularly paragraph

    nos. 9, 10 and 12 to support his contention that the confessional

    statement made by the co-accused before the police officer during

    custody is inadmissible in law and cannot be the only basis for

    prosecution.

    SUBMISSION ON BEHALF OF THE STATE: –

    9. Learned counsel appearing on behalf of the State opposed the prayer

    for quashing of the proceeding pending against the petitioner. It was

    contended that the Petitioner was very much involved in the matter of

    the seized articles, which transpired during the investigation from the

    co-accused persons, who were apprehended at the time of recovery of

    the contraband goods.

    10. It was further submitted that the allegation against the petitioner is a

    serious and grievous one. 20,000 bottles of phensedyl, 3 pieces of

    mobile handsets, and genuine Indian currency of Rs. 6,500/- were

    recovered, and he was the owner of such phensedyl. Therefore, the

    application is liable to be dismissed.

    DISCUSSIONS, ANALYSIS AND CONCLUSION OF THIS COURT: –

    11. Having heard the learned counsels appearing on behalf of the

    respective parties and upon perusal of the case diary produced by the

    1
    2024 SCC OnLine SC 3803.

    7

    2026:CHC-AS:547

    Learned Advocate for the State, this court is of the considered view

    that there is no iota of evidence collected during the investigation

    against the petitioner indicating his involvement, in any way, in the

    crime as alleged. A charge sheet has been filed against seven accused

    persons, including the petitioner, only on the basis of confessional

    statements of the co- accused persons without any link to the seized

    goods.

    12. The investigating officer failed to collect any evidence to connect the

    Petitioner to the crime. Although the prosecution alleges that the

    petitioner was in telephonic contact with the co-accused during the

    transportation of phensedyl, the investigating agency has not

    produced any documentary evidence or call detail records to establish

    that the SIM cards or mobile phones in question were owned or used

    by the petitioner. Further, no financial trail or incriminating material

    has been disclosed on record linking the petitioner to the alleged

    offence.

    13. When there is no material at all against the petitioner, it would be a

    miscarriage of justice to make the person concerned stand the trial

    because it would highly prejudice the petitioner, and all efforts would

    be futile as the conviction in the present case would be rare and

    remote, as there is absolutely no case of recovery of contraband goods

    from the Petitioner. No evidence transpires from the case diary as
    8

    2026:CHC-AS:547

    regards any link with the petitioner and contraband goods recovered

    from the co-accused persons.

    14. As regards the confessional statement of the co-accused in view of

    Section 25 of the Indian Evidence Act, 1872, there can be no doubt

    with respect to the fact that it is inadmissible in evidence. Such a

    statement can, at best, be used only for corroboration or to lend

    assurance to the court if there is other substantial independent

    evidence, but it cannot be the sole basis for conviction.

    15. A confessional statement made by the co-accused under Section 67 of

    the NDPS Act is inadmissible as evidence against another co-accused

    in a trial and is considered a confession made to a “police officer” hit

    by Section 25 of the Evidence Act and cannot be used to convict an

    accused in view of the decision in the case of Tofan Singh V. State

    of Tamil Nadu2.

    16. The allegation of the investigation agency against the petitioner, that

    he is the master mind behind the racket, who supplied to the drug

    racket operated in Gangarampur and Balurghat area by Shyam Saha

    and his accomplice in the crime, is baseless when no iota of evidence

    transpired from the record against the petitioner.

    17. The confessional statement made by the accused before the police

    during custody is inadmissible in law and cannot be the only basis

    2
    (2021) 4 SCC 1
    9

    2026:CHC-AS:547

    for prosecution. Such observation, made particularly in paragraphs

    9, 10 and 12 in the case of Karan Talwar (Supra) as hereinunder, is

    squarely applicable in the present facts and circumstances of this

    case: –

    “9. As noted earlier, the accusation against the appellant is
    commission of offence punishable under Section 27(b) of the NDPS
    Act. The said Section, in so far as it is relevant, reads thus: —
    “27. Punishment for consumption of any narcotic drug or
    psychotropic substance. — Whoever, consumes any narcotic
    drug or psychotropic substance shall be punishable, —

    (a) …….

    (b) where the narcotic drug or psychotropic substance consumed
    is other than those specified in or under clause (a), with
    imprisonment for a term which may extend to six months, or with
    fine which may extend to ten thousand rupees, or with both.”

    10. As is evident from the said Section, the alleged offence is
    consumption of narcotic drug or psychotropic substance other than
    those specified in or under clause (a) of Section 27, NDPS Act, and
    therefore, the question is whether any material is available to
    charge the appellant thereunder. The contention of the appellant is
    that he has been arraigned as accused No. 13 based on the
    confession statement of co-accused viz., accused No. 1. Certainly,
    in the absence of any other material on record to connect the
    appellant with the crime, the confession statement of the co-
    accused by itself cannot be the reason for his implication in the
    crime. This view has been fortified by the law laid down in Suresh
    Budharmal Kalani v. State of Maharashtra
    reported in
    (1998) 7 SCC 337: 1998 INSC 364, wherein it was stated that a
    co-accused’s confession containing incriminating matter against a
    person would not by itself suffice to frame charge against him. The
    10

    2026:CHC-AS:547

    materials on record would reveal that the investigating agency had
    not subjected him to medical examination and instead, going by
    complaint Witness No. 23, he smelt the accused. The less said the
    better and we do not think it necessary to comment upon adoption
    of such a course. We need only to say that even if he tendered
    such evidence, it would not help the prosecution in anyway. There
    is absolutely no case that any recovery of contraband was
    recovered from the appellant. As regards the confession statement
    of the appellant in view of Section 25 of the Indian Evidence Act,
    1872 there can be no doubt with respect to the fact that it is
    inadmissible in evidence. In this context it is worthy to refer to the
    decision of this Court in Ram Singh v. Central Bureau of
    Narcotics
    reported in (2011) 11 SCC 347: 2011 INSC 342. In
    the said decision, this Court held that Section 25 of the Indian
    Evidence Act would make confessional statement of accused
    before police inadmissible in evidence and it could not be brought
    on record by prosecution to obtain conviction. Shortly stated,
    except the confessional statement of co-accused No. 1 there is
    absolutely no material available on record against the appellant.

    12. As noted hereinbefore, the sole material available against the
    appellant is the confession statement of the co-accused viz.,
    accused No. 1, which undoubtedly cannot translate into
    admissible evidence at the stage of trial and against the appellant.
    When that be the position, how can it be said that a prima facie
    case is made out to make the appellant to stand the trial. There
    can be no doubt with respect to the position that standing the trial
    is an ordeal and, therefore, in a case where there is no material at
    all which could be translated into evidence at the trial stage it
    would be a miscarriage of justice to make the person concerned to
    stand the trial.”

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    2026:CHC-AS:547

    18. In the light of the aforesaid discussion and relying upon the aforesaid

    judgments, CRR 4110 of 2022 is, thus, allowed. Connected

    applications, if any, are also, thus, disposed of.

    19. The proceeding being Special Case No. 125 of 2021 arising out of

    Malda Police Station Case No. 556 of 2021 dated 12.11.2021 under

    Sections 21(c)/29 of the Narcotic Drugs and Psychotropic Substances

    Act, 1985 read with Sections 18(b)/27 of Drugs & Cosmetics Act,

    1940 pending before the Learned Judge, Special 3 rd Court under

    NDPS Act, Malda is hereby quashed insofar as the petitioner is

    concerned.

    20. Let a copy of this Judgment be sent to the Learned Court below for

    information.

    21. Case diary, if any, be returned to the learned counsel appearing on

    behalf of the State.

    22. Interim order, if any, stands vacated.

    23. All parties will act on the basis of server copies of this Judgment duly

    downloaded from the official website of this Hon’ble High Court.

    24. Urgent Photostat certified copies of this Judgment, if applied for, are

    to be given as expeditiously to the parties on compliance of all legal

    and necessary formalities.

    (Ajay Kumar Gupta, J.)
    (P.A.)



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