2023 (4) TMI 1188 - SC - Indian Laws

Smuggling - Heroin - reliance placed upon the confessional statement of the appellant recorded under Section 67 of the NDPS Act before the officers of the NCB who are invested with the powers under Section 53 of the NDPS Act - reliability of such statements - HELD THAT - Admittedly, the confessional statements were made by the accused to an officer empowered under Section 53 of the NDPS Act and hence, in view of the bar of Section 25 of the Evidence Act, the confessional statements will have to be kept out of consideration. A finding was recorded by the High Court that the prosecution has not proved that the witnesses are dead or cannot be found or are incapable of giving evidence or kept out of the way of the accused or their presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. These findings are based on the perusal of the entire record. There is no explanation offered by the prosecution about their failure to examine these two independent material witnesses. Hence, the statements of both witnesses are not admissible in evidence. Admittedly, PW2 drew two samples from each of the packets of the contraband found in the hotel room and kept them in two separate plastic covers. These covers were sealed and the remaining contraband was also sealed. Thus, the prosecution claims that the samples were prepared even before the packets were sent to the Station House Officer. The submission of the learned senior counsel appearing for the appellant in Criminal Appeal 451 of 2011 was that a grave suspicion is created about the prosecution s case as this action by the PW2, was contrary to Section 52A of NDPS Act - the act of PW2 of drawing samples from all the packets at the time of seizure is not in conformity with what is held by this Court in the case of Mohanlal2. This creates a serious doubt about the prosecution s case that the substance recovered was contraband. It cannot be said that the contraband was found in the custody of accused no.1. At the highest, it was found in the room occupied by accused no.4. It is noted here that accused no.4 has been convicted by the High Court only for the offence punishable under Section 30 of the NDPS Act which is for the offence of making preparation to do or omitting to do anything which constitutes an offence punishable under the provisions of Sections 19, 24 and 27A. The prosecution has not produced any evidence to show that the contraband was brought to the room of the accused no.4 by the other three accused persons or anyone of them. It is not the case that the room of accused no.4 was in possession of accused nos.1 to 3 who were staying in different hotels. The case of the prosecution is not free from suspicion. The prosecution has not proved beyond a reasonable doubt that the appellants in these two appeals were in possession of the contraband or that they brought the contraband to the hotel room of the accused no.4 - the appellants are acquitted of the offences alleged against them - Appeal allowed.

Summary

Issues Involved:
1. Admissibility of confessional statements under Section 67 of the NDPS Act.
2. Legality of the seizure and sampling process under the NDPS Act.
3. Reliability of evidence from official and independent witnesses.
4. Possession and involvement of the accused in the contraband.

Summary:

Issue 1: Admissibility of Confessional Statements
The appellants argued that the confessional statements recorded under Section 67 of the NDPS Act were inadmissible as they were made to officers empowered under Section 53, who are considered "police officers" under Section 25 of the Indian Evidence Act. The Supreme Court, referencing Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, agreed that such statements are barred under Section 25 of the Evidence Act and cannot be used to convict the accused.

Issue 2: Legality of Seizure and Sampling Process
The defense contended that the seizure and sampling process conducted by PW2 was not in compliance with Section 52A of the NDPS Act. The Supreme Court noted that the samples were drawn by PW2 at the time of seizure, which is contrary to the procedure outlined in Union of India v. Mohanlal & Anr. (2016) 3 SCC 379. The Court emphasized that samples should be drawn in the presence of a Magistrate, creating doubt about the prosecution's case that the substance recovered was indeed contraband.

Issue 3: Reliability of Evidence from Official and Independent Witnesses
The appellants argued that the prosecution failed to examine the two independent witnesses, Devendran and Prabhu, whose statements were marked as Exhibits P19 and P71. The Supreme Court found that the prosecution did not prove that these witnesses were unavailable or incapable of giving evidence, making their statements inadmissible under Section 53A of the NDPS Act. The Court also noted that the evidence of PW2 lacked corroboration from independent witnesses.

Issue 4: Possession and Involvement of the Accused
The prosecution claimed that the accused were found in possession of 5.067 kilograms of heroin in a hotel room. However, the Supreme Court observed that the contraband was found in a room occupied by accused no.4, not the appellants. The Court noted that there was no evidence proving that the appellants brought or possessed the contraband in the room of accused no.4. The prosecution's case was deemed suspicious and not proven beyond a reasonable doubt.

Conclusion:
The Supreme Court set aside the convictions of the appellants, finding that the prosecution failed to prove beyond a reasonable doubt that the appellants were in possession of the contraband or involved in its transportation. The appeals were allowed, and the appellants were acquitted of the charges.