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2023 (9) TMI 1084 - SC - Indian LawsSmuggling - Heroin - High Court opined that merely because Balwinder Singh3 had escaped from the car just before the point where the naka had been laid and could not be apprehended, would not be a ground to acquit him or exonerate him of the charge of conscious possession of heroin - Proof beyond reasonable doubt vis-a-vis preponderance of probability - Plea of failure to establish foundational facts - Plea of accused being in the custody of the NCB much before the naka was laid - Plea of unreliability of the testimony of the independent witness - Significance of decision in TOFAN SINGH VERSUS STATE OF TAMIL NADU 2020 (11) TMI 55 - SUPREME COURT - HELD THAT - The decision that declares that any confessional statement made by an accused to an officer invested with the powers under Section 53 of the NDPS Act, is barred for the reason that such officers are police officers within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. Effect of Tofan Singh's verdict on Balwinder Singh's case - HELD THAT - Now that it has been declared in Tofan Singh s case36 (supra) that the judgements in the case of KANHAIYALAL VERSUS UNION OF INDIA 2008 (1) TMI 828 - SUPREME COURT and RAJ KUMAR KARWAL VERSUS UNION OF INDIA 1990 (3) TMI 73 - SUPREME COURT did not state the correct legal position and they stand overruled, the entire case set up by the prosecution against Balwinder Singh3, collapses like a House of cards. It is not in dispute that Balwinder Singh3 was not apprehended by the NCB officials from the spot where the naka was laid and that Satnam Singh5 alone was apprehended in the Indica car. The version of the prosecution is that after Satnam Singh5 was arrested, his statement13 was recorded under Section 67 of the NDPS Act wherein he ascribed a specific role to the co-accused - Balwinder Singh3 and the Sarpanch. Once the confessional statement13 of the co-accused, Satnam Singh5 recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to Balwinder Singh3 and the subsequently recorded statement22 of Balwinder Singh3 himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Tofan Singh, there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh3 under the NDPS Act. On ignoring the said confessional statements13 22 recorded before the officers of the NCB in the course of the investigation, the vital link between Balwinder Singh3 and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained. Balwinder Singh3 deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act. How is Satnam Singh's case placed on a different footing - HELD THAT - Unlike the case of Balwinder Singh, the conviction of Satnam Singh does not hinge solely on his confessional statement13 made to the NCB officials. His case is on a different footing because it also rests on other relevant factors including the testimonies of three prime prosecution witnesses namely, Sonu PW-1 , P.K. Sharma PW-3 and O.P. Sharma PW-5 - It is proposed to discuss that their testimonies when examined carefully, show that they had remained consistent and unfailing. There appear no material contradictions or deviations in their depositions for this Court to extend any benefit to the appellant Satnam Singh5. Proof beyond reasonable doubt vis-a-vis preponderance of probability - legal position - HELD THAT - The initial burden is cast on the prosecution to establish the essential factors on which its case is premised. After the prosecution discharges the said burden, the onus shifts to the accused to prove his innocence. However, the standard of proof required for the accused to prove his innocence, is not pegged as high as expected of the prosecution. Plea of failure to establish foundational facts - HELD THAT - The argument advanced on behalf of the appellant Satnam Singh that both the courts below have erred in discarding the defence taken by him to the effect that it was Sonu who was the real culprit and was apprehended by the NCB officers with the contraband, but he was let off on bribing the NCB officers, does not meet the test of preponderance of probability and has rightly been disbelieved by both the courts in the absence of any corroboration through cogent evidence. Plea of accused being in the custody of the NCB much before the naka was laid - HELD THAT - The records pertaining to the bill were not produced by the witness summoned and the bill did not bear the signature of any authority even to prove that the mobile phone number asserted by the appellant Satnam Singh5 as belonging to him, stood in his name - there are no reason to take a different view. Plea of unreliability of the testimony of the independent witness, Sonu - HELD THAT - In the case at hand, the naka was laid by the officials of the NCB in an open area near the roundabout of Sectors 24/25, Chandigarh. Such was the location that there was no inhabitant in the vicinity and the time of the naka was an unearthly hour of 01.00 a.m. on 12th December, 2005. In this background, the two independent witnesses who were driving from Jalandhar towards Chandigarh, were flagged down by the NCB officers and joined in the investigation. Therefore, the shadow of doubt sought to be cast on the testimony of Sonu8 by claiming that he was the real culprit, is clearly a trumped up story that cannot be sustained. The other independent witness, Mukesh Kumar, had turned hostile and the prosecution did not examine him. As a consequence, the two defence witnesses, Parkash Ram and Ravi Kant Pawar produced by the appellant Satnam Singh5 to demonstrate that Mukesh Kumar was a stock witness, would hardly be of any assistance. The appellant Satnam Singh has failed to make out a case for acquittal. Therefore, the order of conviction and the sentence imposed on Satnam Singh is maintained - Application disposed off.
Issues Involved:
1. Factual Matrix of the Incident 2. Investigation and Proceedings Before the Trial Court 3. Proceedings Before the High Court 4. Arguments Advanced by Counsel for the Parties 5. Analysis and Discussion on Legal Points 6. Conclusion Summary of Judgment: I. Factual Matrix: - Incident in Question: On December 11, 2005, the Narcotics Control Bureau (NCB) received information about individuals traveling from Amritsar to Chandigarh in a white Indica car to supply contraband. On December 12, 2005, the NCB team intercepted the car and apprehended Satnam Singh, while two others fled. Four packets of heroin were recovered from the car. II. Investigation and Proceedings Before the Trial Court: - Investigation: Satnam Singh's statement under Section 67 of the NDPS Act implicated Balwinder Singh and another person. Balwinder Singh was later arrested based on a newspaper report. - Trial Court Proceedings: The NCB examined five witnesses. Both accused were found guilty under Section 21 read with Section 8 of the NDPS Act. Balwinder Singh was sentenced to death under Section 31A(1a) of the NDPS Act, while Satnam Singh received 12 years of rigorous imprisonment and a fine. III. Proceedings Before the High Court: - High Court Analysis: The High Court upheld the conviction of both accused based on their confessional statements under Section 67 of the NDPS Act, which were deemed admissible at the time. However, the death sentence for Balwinder Singh was reduced to 14 years of rigorous imprisonment. IV. Arguments Advanced by Counsel for the Parties: - For Balwinder Singh: Counsel argued that the confessional statements under Section 67 are no longer admissible following the Supreme Court's decision in Tofan Singh v. State of Tamil Nadu. - For Satnam Singh: Counsel argued that the prosecution failed to establish a prima facie case and that the independent witnesses were unreliable. - For the Respondent (NCB): Counsel asserted that ample evidence was presented to convict both accused and that the burden of proof had shifted to the accused, which they failed to discharge. V. Analysis and Discussion: - Significance of Tofan Singh's Decision: The Supreme Court's decision in Tofan Singh declared that officers under Section 53 of the NDPS Act are "police officers" within the meaning of Section 25 of the Evidence Act, making confessional statements to them inadmissible. - Effect on Balwinder Singh's Case: Without the confessional statements, the prosecution lacked independent incriminating evidence against Balwinder Singh, leading to his acquittal. - Satnam Singh's Case: Unlike Balwinder Singh, Satnam Singh's conviction was supported by other evidence, including testimonies of key witnesses and the recovery of heroin from his car. VI. Conclusion: - Balwinder Singh: Acquitted due to lack of admissible evidence. - Satnam Singh: Conviction and sentence upheld, as the prosecution successfully proved the foundational facts and the burden of proof shifted to the accused, which he failed to discharge. Criminal Appeal No. 1933 of 2014 (Satnam Singh) is dismissed, and Criminal Appeal No. 1136 of 2014 (Balwinder Singh) is allowed.
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