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TMI Blog2009 (3) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court of Madhya Pradesh at Indore in Criminal Appeal Nos. 964 and 1108 of 2000. 2. The factual matrix involved herein is as under: Sub-Inspector Bajrang Lal posted in the Office of the Central Bureau of Narcotics, Ratlam purported to have obtained a secret information to the effect that the respondent Nos. 1 and 2 herein Bal Mukund and Basanti Lal would be carrying about 20 Kg. of Opium on the next day. A preventive party allegedly was formed pursuant to or in furtherance of the said information. At about 0430 hours on 21.06.1998, they reached Nayapura Phanta on Ratlam Jaora Road. Respondent Nos. 1 and 2 were seen carrying cement gunny bags. They were searched. 10 Kgs. of Opium packed in 5 polythene bag of 2 Kg. each from each of them were said to have been recovered. 3. The purported confessions of the respondent Nos. 1 and 2 were recorded on 21.06.1998, unofficial translated version whereof reads as under: Statement of Respondent No. 1 My father is debt ridden to Amritlal Anjana out of Rs. 38000/- out of which Rs. 18000/- has been paid now. Their balance is Rs. 20,000/-. This sum of Rs. 38000/- were given to me by Amritlal Anjana for motor for well and some amount w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed thereupon, it is not necessary for us to refer thereto. 5. On a purported confession made by them that they were carrying the said contraband at the behest of Accused No. 3 Amritlal, a search was conducted in his house at about 1.30 p.m. No contraband, however, was recovered. 6. Confessional statement of the respondent No. 3 was also recorded relevant portion whereof reads as under: I state that the 20 Kg of opium which has been seized by Narcotics Deptt. at Nayapura Fantak that I had given to Balmukund Basantilal which was to be given on foot near Mewasa to a person named Ranjeet who is owner of Dahba to deliver to him about the seized opium. I further state that my family has a licence for the said opium. I had surreptitiously kept 7 to 8 kg of opium which I had kept on the well about which none of my family member had any knowledge to this opium by making aboultertion. I make 20-000 Kg gave to 10-00 to Balmukund Basantilal for dealing to Ranjeet. I further state that I had never done business of selling opium out of greed I did this act. I was totally aware that there are strict provision for keeping illicit opium under N.D.P.S. Act, 1985 but still out of greed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent Nos. 1 and 2 could not have been convicted on the basis of their own confessions, which had been retracted, as the same had not been corroborated by any independent witness. (ii) The purported confession made by the respondent Nos. 1 and 2 was not admissible against the respondent No. 3. (iii) The purported secret information having been recorded in writing, as is required under Section 42 of the Act, the prosecution is vitiated in law. (iv) A sample of narcotics having not been taken in terms of the Standing Instruction as also in compliance of Section 55 of the Act, the judgment of the learned Special Judge was unsustainable. 14. Mr. B.B. Singh, learned counsel appearing on behalf of the appellant, would contend: (i) The High Court committed a serious error insofar as it failed to take into consideration that the prosecution case stood amply proved by PW-8 S.K. Khandelwal who had seized the contraband from the respondent Nos. 1 and 2 and PW-1 Chemical Examiner who had proved this report as also PWs. 5 and 7 being the witnesses of seizure. (ii) Exhibits 20 and 21 being the confessional statements having been recorded in terms of Section 67 of the Act, prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act and it having not been proved that there was any element of voluntariness on their part to make statements confessing their guilt, the same would be hit by Sections 25 and 26 of the Evidence Act. 17. Respondent Nos. 1 and 2 were arrested on the basis of some secret information received by the informant. The said purported secret information revealed the exact place, time and quantity of the narcotics the respondent Nos. 1 and 2 would be carrying. It was, however, admittedly neither recorded in writing nor was forwarded to the superior officers. 18. Section 42 of the Act mandates compliance of the requirements contained therein, viz., if the officer has reason to believe from personal knowledge or information given by any person which should be taken down in writing that any drug or psychotropic substance or controlled substance in respect of which an offence punishable under the Act has been committed, he is empowered to exercise his power enumerated in clauses (a) and (b) of Section 42(1) of the Act between sunrise and sunset. Subject to just exceptions, thus, taking down the information in writing is, therefore, very necessary to be complied with. The proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot based on the evidence and cannot be sustained. 20. For recording his conviction, confession of the respondent Nos. 1 and 2 had been taken into consideration. 21. Mr. B.B. Singh would urge that the statements made by the respondent Nos. 1 and 2 purported to be in terms of Section 67 of the Act were admissible against the co-accused. Strong reliance in this behalf has been placed on Naresh J. Sukhawani v. Union of India [1995 Supp (4) SCC 663] wherein it was held: 4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr Dudani s statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. (emphasis in original) 39. The crucial expression used in Section 30 is the Court may take into consideration such confession (emphasis supplied). These words imply that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the coaccused. The import of this expression was succinctly explained by the Privy Council in Bhuboni Sahu v. R in the following words: (AIR p. 260) [T]he court may take the confession into consideration and thereby, no doubt, makes its evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution Bench of this Court in State of Punjab v. Baldev Singh [(1999) 3 SCC 977], wherein it was held: 28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As Page 2956 already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose - to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (iii) the said statement was not corroborated, opined: 5. There is nothing to indicate that Exhibit P-8 had been elicited from A-2 by any coercion, threat or force and, therefore, the learned Single Judge of the High Court had spurned down that contention. Regarding the complaint alleged to have been made by the appellant Naushad on 11-3-1994, we have perused it. His case therein was that he offered himself to be a witness in the case and some reward was offered for it. It was on the said offer that he agreed to sign the said statement There exists a distinction between a case where the accused himself had stated that he had made the statement on the belief that he would be rewarded and a case where such purported confession had been obtained upon interrogation by High ranking police officials. 33. Yet again in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence [(2003) 8 SCC 449], the retraction was made only when the accused was being examined under Section 313 of the Code of Criminal Procedure. No credence was given to such a retraction made after such a long time. This Court taking into consideration the entire factual matrix involved in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the confession was made under duress or coercion and/ or voluntary in nature should be considered having regard to the facts and circumstances of each case. It was opined: 102. Section 25 of the Evidence Act was enacted in the words of Mehmood J in Queen Empress v. Babulal ILR (1884) 6 All. 509 to put a stop to the extortion of confession, by taking away from the police officers as the advantage of proving such extorted confession during the trial of accused persons. It was, therefore, enacted to subserve a high purpose. 113. Even otherwise Section 138B of the 1962 Act must be read as a provision containing certain important features, namely: (a) There should be in the first instance statement made and signed by a person before a competent custom official. (b) It must have been made during the course of enquiry and proceedings under the Customs Act. 114. Only when these things are established, a statement made by an accused would become relevant in a prosecution under the Act. Only then, it can be used for the purpose of proving the truth of the facts contained therein. It deals with another category of case which provides for a further clarification. Clause (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. PW-7 did not testify as to which of the bags seized had been sent for analysis. No statement had been made by him that the bags produced were the bags in question which were seized or the contraband was found in them. 41. Furthermore, we are dealing with a judgment of acquittal. The High Court, for good and sufficient reasons, had arrived at findings of fact both with regard to voluntariness of the purported confessions made by the respondents as also compliance of the mandatory statutory provisions vis- vis directions issued by the Central Government in making search, seizure as also taking of samples for the purpose of chemical examination having been doubted, we do not see any reason why we should take a contrary view as it is well-known that the appellate court would not interfere with a judgment of acquittal only because another view is possible. On the other hand, if two views are possible, it is trite, the appellate court shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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