2020 (3) TMI 904 - HC - Indian Laws

Smuggling - Charas - Contraband item - offence under Section 8(C)/20(B)(II) of NDPS Act, 1985 - presence of confessional statement or not - admissible evidences or not - corroboration of statements or not - possession of opium and sale of same or not - HELD THAT - In the present case the appellant was neither arrested on the spot, nor any incriminating article was recovered from his house when a search was made. Even the prosecution wholly failed to establish that the said truck was in any way connected with the appellant or the same was at any time in real or constructive possession/control of the appellant. The prosecution failed to establish the ownership of the truck and no evidence was there pertaining to any connection of the said vehicle with the appellant. So, from the entire material on record, it is evident that except the statement of these two co-accused persons Rajesh Kumar Mishra and Raju Dubey, there is no other material on record against the appellant to show his complicity in the crime. The submission of the learned counsel for the opposite party that the appellant should have summoned co-accused Rajesh Kumar Mishra and Raju Dubey for cross examination does not suit to the reasoning, as it was for the prosecution to establish its case against the appellant beyond all reasonable doubts - it would not be safe to rely upon the statement of these two persons recorded under Section 67 NDPS Act as the appellant was not afforded any opportunity of cross examination to these two co-accused persons. Appellant is acquitted of all the charges leveled against him - Appeal allowed.

Issues Involved:
1. Admissibility of confessional statements under Section 67 of NDPS Act.
2. Requirement of corroboration for conviction based on confessional statements.
3. Conscious possession of contraband.
4. Procedural fairness and opportunity for cross-examination.

Detailed Analysis:

1. Admissibility of Confessional Statements under Section 67 of NDPS Act:
The court examined whether the statements made by co-accused under Section 67 of the NDPS Act could be used as evidence against the appellant. The prosecution argued that these statements were admissible as they were not recorded by police officers but by officers of the Directorate of Revenue Intelligence (DRI), who are not considered police officers under the Evidence Act. The court referred to the case of *Ram Singh Vs. Central Bureau of Narcotics* and *Kanhaiyalal vs. Union of India*, which held that statements made under Section 67 of the NDPS Act are admissible in evidence as they are not hit by Sections 25 and 26 of the Evidence Act.

2. Requirement of Corroboration for Conviction Based on Confessional Statements:
The court emphasized that a confession, if voluntary, truthful, reliable, and beyond reproach, is an efficacious piece of evidence. However, it is prudent to seek corroboration before solely relying on such confessions for conviction. In the case of *Surinder Kumar Khanna Vs. Intelligence Officer, Directorate of Revenue Intelligence*, the Supreme Court held that the confessional statements of co-accused cannot be the sole basis for conviction without corroborative evidence. The court in the present case noted that apart from the statements of co-accused, no substantive evidence was presented against the appellant.

3. Conscious Possession of Contraband:
The court analyzed the concept of possession, noting that it is a polymorphous term that can mean physical or constructive possession. The prosecution argued that the appellant had conscious possession of the contraband as he had control over the truck and the concealed Charas. However, the court found that the prosecution failed to establish any connection between the appellant and the truck or the contraband. The court cited *Madan Lal and another V. State of H.P.*, which explained that possession must be conscious and involve control over the contraband.

4. Procedural Fairness and Opportunity for Cross-Examination:
The appellant argued that he was not given an opportunity to cross-examine the co-accused whose statements were used against him. The court agreed, stating that it was the prosecution's responsibility to produce the co-accused for cross-examination. The court referred to the principles laid down in *Kashmira Singh v. State of Madhya Pradesh* and *Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar*, which emphasized that a confession of a co-accused cannot be used as substantive evidence against another accused without corroboration and opportunity for cross-examination.

Conclusion:
The court concluded that the prosecution failed to provide sufficient evidence to establish the appellant's guilt beyond reasonable doubt. The conviction was primarily based on the statements of co-accused, which were not corroborated by independent evidence. The trial court's judgment was found to suffer from manifest errors of law and fact. Consequently, the appellant's conviction was set aside, and he was acquitted of all charges. The court ordered the appellant to be released immediately unless required in connection with any other case.

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