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TMI Blog2008 (1) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Trial Judge found that the charges against them had not been proved and acquitted them of the charges under Section 8/18 read with Section 29 of the NDPS Act. 4. Aggrieved by his conviction and sentence, Phool Chand preferred Criminal Appeal No.47 of 2002 before the Indore Bench of the Madhya Pradesh High Court. On the other hand, the Union of India also preferred Criminal Appeal No.108 of 2003 against the acquittal of Ram Prasad and the appellant herein. 5. The High Court heard both the appeals together and ultimately dismissed the appeal preferred by Phool Chand and relying on the statement made by Ram Prasad and the appellant herein under Section 67 of the NDPS Act, found them also guilty of the charges framed against them and allowed the appeal filed by the Union of India. Ram Prasad and Kanhaiyalal (the appellant herein) were also sentenced to 10 years R.I. each and fine of Rs. 1 lakh each, and in default, to further undergo a jail sentence of 6 months R.I. 6. It is against the said judgment of the High Court that the instant appeal had been preferred by Kanhaiyalal. 7. Since the appellant, Kanhiyalal was convicted on the basis of the statement made by him under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the bags in question contained intoxicating materials. He was also informed that for such reasons he would have to be searched along with the bags. In keeping with the provisions of Section 50 of the NDPS Act Phool Chand was given the option of the search being conducted by any nearby Magistrate or before any Gazetted Officer. According to the prosecution, Phool Chand was willing to have the bag searched before the Gazetted Officer. Accordingly, Shri R.K. Sinha, Superintendent of the Narcotics Department, who was present with the raiding/preventive party introduced himself as a competent Gazetted Officer to Phool Chand who gave his consent in writing about such search in the Panchnama which was drawn before Shri R.K. Sinha. Pursuant to the above, search of the bags was undertaken from which the contraband opium was found and on measurement the bags were found to contain the following amounts of opium:- i) Bag 'A' 11 kgs. 500 gms. ii) Bag 'B' 4 kgs. 700 gms, and iii) Bag 'C' 300 gms From each of the bags two samples of 25 grams each were taken out for chemical examination while the remaining opium was sealed under the Panchnama (Exh.P.2) 10. On the basis of the proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icence. 16. The answer to the third question, which is relevant to this appeal, was answered in favour of the accused Ram Prasad and the appellant herein and the Special Judge concluded that except for the contradictory confession of these two accused there was no other corroborative evidence and the prosecution had failed to prove that they were included in the smuggling operation. 17. As far as the fourth question is concerned the Special Judge was satisfied that all the provisions of the NDPS Act had been duly complied with. 18. On the basis of his findings on the first, second and fourth questions, the Special Judge under the NDPS Act convicted Phool Chand of the offences under Section 8/18 of the NDPS Act, but acquitted both Ram Prasad and the appellant herein of the said charge on his findings with regard to question no.3. 19. As mentioned hereinabove, the High Court while dismissing the appeal filed by Phool Chand allowed the appeal filed by the Union of India against the acquittal of Ram Prasad and Kanhaiyalal upon holding that the statement made by Ram Prasad and the appellant herein under Section 67 of the NDPS Act did not require any corroboration and were sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers under threat, the truth was otherwise since in his statement under Section 313 Kanhaiyalal answered 'galat hai' which had to be taken as a denial that he had given such statement. Mr. Gambhir submitted that the appellants positive response had to be read along with his application dated 9.6.1997 retracting his confessional statement. 22. Mr. Gambhir submitted that the High Court had erred in relying upon the appellants statement made under Section 67 of the NDPS Act, although, not only had the same been retracted immediately thereafter before the learned Magistrate, but the same was not admissible under the above-mentioned provisions of the Evidence Act. It was submitted that since apart from the above statement there was no other evidence, which linked the appellant with the alleged offence, the High Court should have maintained the judgment of the acquittal passed by the learned trial court. 23. In support of his aforesaid submission that in the absence of other corroborating evidence the retracted confession had been wrongly relied upon by the High Court to convict the appellant, Mr. Gambhir referred to the three Judge Bench decision of this Court in Muthuswami vs. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Bharat vs. State of U.P. (supra) wherein a comparison has been made between 'confession' and 'retracted confession'. While in the former case, it was observed that confessions could be acted upon, if the Court was satisfied that they were voluntarily made and they were true, retracted confessions, stood on a slightly different footing. In that context, it was observed that 'a Court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two, to determine whether the retraction affects the voluntary nature of the confession or not.' The learned Judges of the three Judge Bench went on to observe that upon being satisfied, it was for the court to decide whether to use the retracted confession or not, but all the same, the courts did not normally act upon a retracted confession without finding some other evidence as to the guilt of the accused. The learned Judges concluded that a true confession voluntarily made could be acted upon with slight evidence to corroborate the same, but a retracted confession requires the Court to be assured that the retraction was an after-thought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involve him in the offence. The High Court, therefore, allowed the appeal filed by Mehaboob and set aside his conviction. 29. On this line of decisions, Mr. Gambhir lastly referred to a decision of this Court in Pon Adhithan vs. Deputy Director, Narcotics Control Bureau, Madras (1999 6 SCC 1) wherein, in fact, the confessional statement made by the accused- appellant while in custody of the Intelligence Officer, Narcotics Intelligence Bureau, was relied upon to convict the said accused, on it being held that the said statement had been voluntarily made as no complaint of threat or pressure had been made by the accused when he was produced before the Magistrate. Mr. Gambhir sought to distinguish the said decision on the ground that while in Pon Adhithan's case, no complaint had been made by the accused of any threat or compulsion for making such statement, in the present case the confession made by the appellant herein was immediately retracted on the very next date when the appellant was produced before the Magistrate and that, too, in writing by way of an application. Mr. Gambhir reiterated that the said application was referred to by the learned trial court in its judgment. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the confessional statement of the appellant had to be accepted. 33. On the issue involving retraction by the appellant of his statement made before the Inspector under Section 67 of the NDPS Act, Mr. Singh submitted that the application which the appellant is said to have filed before the Magistrate was never proved or exhibited in the Trial Court and did not form part of the evidence on record. He submitted that the same could not, therefore, be taken note of or be relied upon in support of the appellants case of retracted confession. 34. In support of his aforesaid submission Mr. Singh referred to the decision of the eleven Judge Bench of this Court in State of Bombay vs. Kathi Kalu Oghad and others (1962) 3 SCR 10) wherein it was, inter alia, concluded that the accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, just being in Police custody when the statement was made would not, by itself, give rise to an inference that the accused had been compelled to make such statement. It was also held that to bring the statement within the prescription of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplated during which a person may be called upon to provide any information relevant to the inquiry as to whether there has been any contravention of the provisions of the Act or any Rule or Order made thereunder. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play. Of course, this Court has also held in Pon Adithan's case (supra) that even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under Article 20(3) of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is nothing on record to suggest that the appellant was compelled under threat to make the statement after he had been placed under arrest which renders such statement inadmissible and not capable of being relied upon in order to convict him. On the other hand, there is the evidence of PW9 upon which the High Court has relied in convicting the appellant. It may once again be mentioned that no question in cross-examination had been put to PW9 in this regard and the version of the said witness must be accepted as corroborative of the statement made by the accused. 40. It may also be recalled that though an application was made for retracting the confession made by the appellant, neither was any order passed on the said application nor was the same proved during the trial so as to water down the evidentiary value of the said statement. On the other hand, in the absence of such evidence on record, the High Court had no option but to proceed on the basis of the confession as made by the appellant under Section 67 of the NDPS Act. Since it has been held by this Court that an officer for the purposes of Section 67 of the NDPS Act read with Section 42 thereof, is not a police officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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