2016 (7) TMI 541 - HC - Indian Laws

Voluntary confession - conviction under Section 15(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for having possession of 266 K.G. of dodda - Held that - Taking into consideration that the appellant has confessed the guilt in his confessional statement, Exhibit 10, and interrogatories, Exhibit 11, that he was carrying six big and two small bags of dodda and he has not complained that he has not made any such statement, voluntary, and has not reported of having made the statement in voluntary or under threat. Except, in the statement under Section 313 of the Criminal Procedure Code at a belated stage where he has merely made simple denial that he has not made such statement, but, has not given any reason, hence, there is no reason to hold that the confession was not voluntary for non-production of physical evidence, like the seized article and the sample, however, the witnesses supported the prosecution case, the witness, P.W. 2 has also supported prosecution case. It is true that before acting solely on confession as a rule of prudence the Court requires some corroboration, but, it can not be said that conviction can not be recorded on sole confession, if the confession has voluntarily been made. The appellant has made confessional statement and, more over, independent witness deposed that recovery has been made and, further, the official as well as the independent witnesses supported the prosecution case regarding the search, seizure and recovery and his conviction can sustain on the said confessional statement, find and hold that the prosecution has been able to prove the charge beyond all reasonable doubts.

Issues Involved:
1. Conviction under Section 15(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Non-production of seized articles and samples in court.
3. Validity of the confessional statement under Section 67 of the Act.
4. Compliance with Section 52A of the Act regarding certification and destruction of seized articles.
5. Admissibility of confessional statements made to Customs Officers under Section 25 of the Indian Evidence Act, 1872.

Issue-wise Detailed Analysis:

1. Conviction under Section 15(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985:
The appellant was convicted for possession of 266 K.G. of dodda and sentenced to ten years of rigorous imprisonment and a fine of one lakh rupees under both Sections 15(c) and 23(c) of the Act. The prosecution alleged that the appellant was caught with the narcotic substance during a raid based on information from a coded informer. The trial court convicted the appellant based on the evidence provided by the witnesses and the confessional statement.

2. Non-production of seized articles and samples in court:
The defense argued that the seized articles and samples were not produced in court, which is crucial for establishing the possession and nature of the narcotic substance. The court noted that the best evidence should have been the seized material, which ought to have been produced during the trial and marked as material exhibits. The Supreme Court in previous cases has held that non-production of such material evidence is not a mere procedural irregularity but causes prejudice to the accused.

3. Validity of the confessional statement under Section 67 of the Act:
The defense contended that the confessional statement made before Customs Authorities is inadmissible under Section 25 of the Indian Evidence Act, 1872, as Customs Officers are deemed to be police officers. The Supreme Court has held that a retracted confession is a weak piece of evidence and must be corroborated by other independent and cogent evidence. The court observed that the appellant's confession was not voluntary and was retracted only during the statement under Section 313 of the Criminal Procedure Code.

4. Compliance with Section 52A of the Act regarding certification and destruction of seized articles:
The prosecution failed to produce evidence of the destruction of the seized articles or the samples taken from them. The court emphasized that the certification under Section 52A of the Act requires proving and bringing in evidence at least the samples taken from the seized articles. The prosecution did not produce the samples taken at the time of seizure or during re-sampling before the Judicial Magistrate, which casts doubt on the prosecution's case.

5. Admissibility of confessional statements made to Customs Officers under Section 25 of the Indian Evidence Act, 1872:
The court discussed various precedents where it was held that Customs Officers empowered under Section 53 of the Act are deemed to be police officers, and confessions made to them are inadmissible under Section 25 of the Indian Evidence Act. The court noted that the appellant's confession was not corroborated by other evidence and was retracted at a later stage, making it unreliable.

Conclusion:
The court held that the prosecution failed to establish the possession of the seized articles as they were not produced in court. The confessional statement of the appellant was not voluntary and lacked corroboration. The certification under Section 52A of the Act was not in compliance with the legal requirements. Therefore, the conviction of the appellant was not sustainable, and the appeal was allowed.

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