2011 (10) TMI 436 - HC - Indian Laws

Smuggled goods - Accused No.1 stated that the bag was containing Charas weighing about 2.500 kgs. and, that, the same was meant for delivery to his customer - it must be observed that one of the Panchas to the alleged search and recovery having turned hostile and the other Panch not having been examined as a witness, the evidence in that regard is only of the officers from the Narcotics Cell - Since it is primarily on the basis of the evidence of the officers from the Narcotics Cell that a conclusion regarding the fact of recovery and seizure of Charas from the possession of Accused No.1 is required to be drawn, their evidence needs to be subjected to very careful scrutiny - the confessional statements made before such officers cannot be excluded from consideration on the ground that their reception in evidence is barred by the provisions of Section 25 of the Evidence Act - There is no onus upon the accused to prove that he did not voluntarily make a confession, which he is alleged to have made. It is for the prosecution to satisfy the Court that it was genuine, and freely and voluntarily made - Even otherwise, such evidence emanating from the accused himself cannot be considered as independent corroboration to the alleged fact of seizure and recovery - in the absence of any recovery from or at their instance, they cannot be held guilty of the alleged offences merely on the basis of their own confessional statements and the confessional statements allegedly made by the coaccused - Appeals are allowed

Issues Involved
1. Compliance with Section 50 of the NDPS Act
2. Voluntariness and admissibility of confessional statements under Section 67 of the NDPS Act
3. Reliability of the prosecution's evidence regarding the recovery and seizure of Charas
4. Conduct and investigation procedures of the Narcotics Cell officers
5. Independent corroboration of the prosecution's case

Issue-wise Detailed Analysis

1. Compliance with Section 50 of the NDPS Act
The court examined whether the provisions of Section 50 of the NDPS Act were complied with during the search and seizure of Charas from Accused No.1. It was noted that the trial court had assumed compliance with Section 50, but the appellate court found that the evidence presented was contradictory. Specifically, Wakle (PW1) stated that Accused No.1 wanted to be searched before a Gazetted Officer, but this was not done. The appellate court referred to the Supreme Court's decision in State of Himachal Pradesh vs. Pawan Kumar, which clarified that Section 50 does not apply to the search of baggage or containers carried by a person. Consequently, the failure to comply with Section 50 was not considered fatal to the prosecution's case, but the court found the trial court's conclusion on compliance to be incorrect.

2. Voluntariness and Admissibility of Confessional Statements under Section 67 of the NDPS Act
The court scrutinized the confessional statements of the accused recorded under Section 67 of the NDPS Act. It was argued that these statements were not voluntary and were made under duress. The court noted that the accused were not free when their statements were recorded, despite the issuance of summonses to create an impression of voluntariness. The court found the issuance of summonses to be a farce, as the accused were already in custody. The confessional statements were also in question and answer form, which suggested that the accused were under the control of the investigating officers. The court concluded that the statements were not voluntary and could not be relied upon.

3. Reliability of the Prosecution's Evidence Regarding the Recovery and Seizure of Charas
The court critically examined the evidence presented by the prosecution regarding the recovery and seizure of Charas from Accused No.1. It was noted that the evidence was primarily from officers of the Narcotics Cell and lacked independent corroboration. The court found several inconsistencies and artificial aspects in the prosecution's version, such as the failure to conduct a personal search of Accused No.1 and other accused, which cast doubt on the reliability of the evidence. The court concluded that the prosecution's evidence was not free from doubt and could not be accepted as true beyond a reasonable doubt.

4. Conduct and Investigation Procedures of the Narcotics Cell Officers
The court assessed the conduct and investigation procedures of the Narcotics Cell officers. It found that the officers did not follow standard procedures, such as conducting personal searches of the accused and properly documenting the recovery of Charas. The court also noted that the officers' reactions and behavior were inconsistent with normal investigative conduct, further undermining the credibility of their testimony. The court criticized the officers for not carrying out independent investigations and relying solely on the confessional statements of the accused.

5. Independent Corroboration of the Prosecution's Case
The court emphasized the need for independent corroboration of the prosecution's case, especially when the primary evidence comes from the investigating officers. It was noted that one of the Panch witnesses turned hostile, and the other was not examined, leaving the officers' testimony uncorroborated. The court found that the confessional statements of the accused could not serve as independent corroboration, as they were not voluntary and were retracted before the trial. The court concluded that the lack of independent corroboration and the suspicious features of the case warranted giving the benefit of doubt to the accused.

Conclusion
The court found significant flaws in the prosecution's case, including non-compliance with Section 50 of the NDPS Act, lack of voluntariness in the confessional statements, unreliable evidence regarding the recovery and seizure of Charas, improper conduct and investigation procedures by the Narcotics Cell officers, and the absence of independent corroboration. Consequently, the court set aside the conviction and sentences of the appellants, acquitted them, and ordered their immediate release unless required for another case. The court also directed the refund of any fines paid by the appellants.

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