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2017 (4) TMI 1018 - HC - Indian LawsOrder of acquittal - offence under Sections 8(c) r/w 21 and 29 of NDPS Act 1985 - Held that - In the instant case, the prosecution has established that through the confessional statement of A1 and A2 that both were conspired along with A-3 to commit the offence. The Court below considered the confessional statements of A-1 and A-2 under Section 67 of the NDPS Act and held that it is voluntary and admissible in evidence and based on the same convicted the accused for other offences. But, acquitted the accused on the ground that there is no further investigation based on the statement given by the accused. The Hon ble Supreme Court in KANHAIYALAL case reported in (2008 (1) TMI 828 - SUPREME COURT) has held that the confessional statement recorded by the officer in the course of investigation of a person accused of an offence under the NDPS Act is admissible in evidence against him and also held that the conviction can be maintained solely on the basis of confession given under Section 67 of the NDPS Act. The confessional statement of the accused made under Section 67 of the NDPS Act is admissible in evidence. In the above circumstances, the prosecution has clearly established the conspiracy between the accused to commit the offence. Hence, the findings of the Court below that a further investigation is required in respect of the confessional statement given by the accused to prove the conspiracy is not correct. Hence, it is liable to be set aside. In the result, the Criminal Appeal is allowed and the order of acquittal of respondents for the offence under Section 8(c) r/w 29 of the NDPS Act is set aside and both the accused are convicted for the offence under Section 8(c) r/w 29 of the NDPS Act.The Registry is directed to issue notice to the respondents/accused for questioning them regarding sentence, and post the matter on 05.06.2017 for questioning the respondents.
Issues Involved:
1. Conviction under Section 8(c) r/w 21 of the NDPS Act. 2. Acquittal under Section 8(c) r/w 29 of the NDPS Act. 3. Admissibility of confessional statements under Section 67 of the NDPS Act. 4. Evidence and investigation regarding conspiracy. Issue-wise Detailed Analysis: 1. Conviction under Section 8(c) r/w 21 of the NDPS Act: The respondents were charged under Sections 8(c) r/w 21 and 29 of the NDPS Act, 1985. The Trial Court found the first accused guilty under Section 8(c) r/w 21(c) of the NDPS amended Act, 2001, sentencing him to ten years of rigorous imprisonment and a fine of ?1,00,000/-. The second accused was found guilty under Section 8(c) r/w 21(b) of the NDPS Act and sentenced to two years of rigorous imprisonment and a fine of ?15,000/-. The trial court acquitted both accused under Section 8(c) r/w 29 of the NDPS Act. 2. Acquittal under Section 8(c) r/w 29 of the NDPS Act: The appellant challenged the acquittal under Section 8(c) r/w 29 of the NDPS Act. The prosecution's case was based on the confessional statements of the accused, marked as Exs.P31 and P44. The trial court acquitted the accused of conspiracy charges, stating that there was no further investigation into the statements given by the accused and that mere filing of the statements was insufficient to prove conspiracy. 3. Admissibility of Confessional Statements under Section 67 of the NDPS Act: The learned counsel for the appellant argued that the trial court erred by not convicting the accused for conspiracy despite accepting their confessional statements as voluntary and admissible. The prosecution relied on the Supreme Court judgment in Kanhaiyalal vs. Union of India, which held that confessions made under Section 67 of the NDPS Act are admissible and can form the sole basis for conviction. The respondents' counsel countered this by citing the Supreme Court's judgment in Tofan Singh vs. State of Tamil Nadu, which referred the issue of admissibility of such confessions to a larger bench. 4. Evidence and Investigation Regarding Conspiracy: The prosecution argued that the confessional statements of A1 and A2 clearly established a conspiracy involving A3, who was supposed to receive the narcotics. The trial court, however, acquitted the accused of conspiracy charges due to a lack of further investigation based on the confessions. The High Court noted that a criminal conspiracy is an agreement between two or more persons to commit an illegal act or a legal act by illegal means, and it can be inferred from circumstances. The High Court found that the trial court's requirement for further investigation was unnecessary since the confessions were deemed voluntary and admissible. Conclusion: The High Court concluded that the prosecution had sufficiently established the conspiracy between the accused based on their confessional statements. Consequently, the High Court set aside the trial court's acquittal of the accused under Section 8(c) r/w 29 of the NDPS Act and convicted both accused for conspiracy. The Registry was directed to issue notice to the respondents for sentencing, and the matter was posted for further proceedings. The High Court also appreciated the services of the legal aid counsel representing the respondents.
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