2018 (3) TMI 866 - HC - Indian Laws

Smuggling - transportation of contraband ganja - offences punishable under sections 20(b)(ii)(C) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - The defence plea of the appellants is one of denial and it is further pleaded that nothing was seized from their possession and they have been falsely entangled in the case. Held that - the only material available on record against the appellant Firoz Alli Khan @ Bulu is the confessional statement of co-accused persons before P.W.14, the Inspector in Charge of Jarada police station - The object of section 25 of the Evidence Act, wherein it is mentioned that no confession made to a police officer, shall be proved as against a person accused of any offence, is that the officer would make every effort to collect the evidence of the commission of the crime and from the power he possesses, he has the capacity to influence, pressurise or subject the person to coercion to extract confession. Confession of a co-accused does not come within the definition of evidence as contained in section 3 of the Evidence Act. It cannot be treated as substantive evidence. Law is well settled that the Court cannot start with confession of a co- accused person. It must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on some other evidence. In view of the glaring inconsistencies in the evidence of prosecution witnesses, absence of clinching evidence relating to compliance of mandatory provision under section 42(2) of the N.D.P.S. Act, absence of any cogent materials that the seized articles along with sample packets were kept in safe custody till its production in the Court - it would be very risky to uphold the impugned judgment and order of conviction in respect of the appellants Ramakrushna Sahu, Trilochan Sahu, Subash Mahapatra @ Subash Ch. Mahapatra and Kailash Chandra Panda under section 20(b)(ii)(C) of the N.D.P.S. Act. Appeal allowed.

Summary

Issues Involved:
1. Illegal and unauthorized possession of contraband Ganja.
2. Abetment and criminal conspiracy to commit an offense under Section 20(b)(ii)(C) of the NDPS Act.
3. Use of fake number plates in furtherance of common intention.

Issue-wise Detailed Analysis:

1. Illegal and Unauthorized Possession of Contraband Ganja:
The appellants were accused of transporting 595 kgs. 500 grams of contraband ganja in 66 polythene packets through three four-wheeler vehicles. The trial court found that the evidence of P.W.14, the informant, was clear, consistent, and credible, establishing the illegal possession of ganja by the appellants. However, the High Court noted significant procedural lapses, including non-compliance with mandatory provisions under Section 42 of the NDPS Act. The entries of dispatch register and station diary regarding the receipt of reliable information and subsequent actions were not proved. The malkhana registers of the concerned police stations were not produced during the trial to prove the safe custody of contraband ganja before its production in court and dispatch for chemical analysis. These lapses led to the conclusion that the conviction based on such evidence was unsafe.

2. Abetment and Criminal Conspiracy:
Appellant Firoz Alli Khan @ Bulu was convicted under Section 29 of the NDPS Act based on the confessional statements of co-accused persons before the police. The High Court highlighted that such confessional statements have no evidentiary value unless corroborated by other evidence. The other official witnesses did not corroborate the involvement of Firoz Alli Khan @ Bulu. The court emphasized that a confession made to a police officer is inadmissible as evidence against the accused under Section 25 of the Evidence Act. The absence of substantive evidence regarding Firoz Alli Khan @ Bulu’s involvement in the conspiracy led to the setting aside of his conviction.

3. Use of Fake Number Plates:
The trial court acquitted the appellants of the charge under Sections 482/34 of the Indian Penal Code, as there was no evidence to prove that the number plates used were fake and that they had been used by the accused persons. The High Court upheld this acquittal, noting the lack of evidence to support the charge.

Separate Judgments Delivered:
The High Court delivered a common judgment for all the appeals, noting that they arose out of a common judgment from the trial court. The appeals were heard analogously and disposed of by this common judgment.

Conclusion:
The High Court allowed the appeals filed by all the appellants, setting aside their convictions and sentences. The court ordered the release of the appellants if their detention was not required in any other case. The lower court records, along with a copy of the judgment, were directed to be sent to the trial court for information.