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TMI Blog2009 (12) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... he delivery was effected in early 1987. The statement of the Surender Mehta was stated to have been recorded on 5.7.1988 while the statement of the present respondent is stated to have been recorded on 22.11.1987 and on 23.11.1987 vide Ex.PW1/A, B and C. It was also their case that in those statements the respondent admitted the factum of receiving delivery of 2.4 kgms of heroin from Surender Mehta for delivering the same to one Sardar ji near Nanakpura and that the said Sardarji was caught red handed along with the aforesaid heroin. 3. After the committal, charges were framed by the Additional Sessions Judge against the respondent to which he pleaded not guilty and claimed trial. During the course of trial, the complainant examined only two witnesses, namely, PW-1 R.D. Gupta and PW-2 Surinder Gupta, Assistant Commissioner at IGI Airport, New Delhi. During the cross-examination of these witnesses specific suggestion was given by the respondent that the statements relied upon by the petitioner were not made by the respondent voluntarily and in fact it was got procured under duress in some other case for which a complaint was filed by the brother of the respondent to the concerned M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Control Bureau decded on 18.07.2008. (v) Raj Kumar Karwal Vs. Union of India, 1991 Crl.L.J. 97 (SC). (vi) Kanhiya Lal Vs. Union of India, AIR 2008 (SC) 1044. (vii) A.K. Mehmood Vs. Intelligence Officer, NCB, (2001) 10 SCC 203. (viii) M. Prabhu Lal Vs. The Assistant Director, DRI, JT 2003 Suppl. (2) SC 459. (ix) Ramesh Chander Mehta Vs. The State of West Bengal, AIR 1970 SC 940. (x) K.I. Pavunny Vs. Assistant Collector, (1997) 3 SCC 721. (xi) Poolpandi Vs. Superintendent, Central Excise, 1992 Crl.L.J.2761 SC. 6. It has also been stated that in addition to the statement of the accused/respondent under Section 67 of the NDPS Act, there is a statement of his co-accused Surender Mehta recorded under Section 67 of the NDPS Act, where role of the present respondent has also been mentioned. The statement of Surender Mehta is also admissible and legally acceptable and the same corroborates the statement of the respondent under Section 67 of the NDPS Act. 7. It has also been submitted that the retraction of the statement was immaterial i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the statement once retracted means no confession. Respondent relies upon the following judgments: (a) NCB Vs. Shyam Lal & Anr., 2009(2) Crimes 736 (Delhi). (b) Union of India Vs. Bal Mukund & Ors, 2009(2) Crimes 171 SC. (c) Raju Premji Vs. Customs, 2009(3) Crimes 109 SC. 9. It may be observed here that despite the orders dated 6.9.2007 when time was sought by counsel for the petitioner to file some more documents, no document has been filed by the petitioner. Written arguments have been preferred by the petitioner which is in the nature of making reference to various judgments delivered by the Hon'ble Supreme Court on the question of admissibility of statements recorded under Section 67 of the NDPS Act. The crux of the judgments which have been cited by the petitioner is three fold:- (i) The statement tendered under Section 67 of the NDPS Act is an admissible evidence against the maker thereof. (ii) The said statement alone can be the basis of conviction of the maker if they were tendered voluntarily. (iii) If the statements were tendered volunt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... write all the dictation. He did not state to the accused that he was not compelled to give his statement. He voluntary says that he did not apply any force before recording the statement. He did not remember if the accused had immediately given the retraction statement. 12. Similarly, the observations made by the trial court on the cross- examination of PW-2 Surender Gupta is reproduced hereunder:- "In the cross-examination this witness depose that he has no personal knowledge regarding the complaint but the same was filed on the basis of the documents in the official capacity. He has no idea that whether Mr.A.S.Vohra had made any confirmation of the statement made by Mr.Surender Mehta which is dated 5-7-1988 and 6-7-1988 and is Ex.PW2/B and Ex.PW2/B-1. He has not knowledge whether there was any other case again Mr.Aziz Ahmad. He voluntarily says that he had filed the complaint on the basis of the documents placed before him. He did not have any knowledge that Aziz Ahmad was kept in the office of NCB on 21-11-87 , 22-11-87 and 23- 11-87. He further deposed that he had no knowledge that on 24-11-87 whether Aziz Ahmad was produced in the court by the NCB o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and produced 2 defence evidence in support of his contention. DW 1 is Kamal Kant Sharma, Ahlmad in the court of Ms.Swarn Kanta, ASJ, Special Judge, NDPS Courts, New Delhi. He deposed that he has brought the summoned file of the case titled as NCB Vs. Jasbir Singh and others earlier known as NCB Vs. Narender Vishnoi and others. The said judicial record contains the original application for bail and retraction dated 23-11-87 of Aziz Ahmad and the same is Ex.DW1/A, Application for bail of Aziz Ahmad dated 24-11-87 is Ex.DW1/B, original affidavit of Sayed Akhlaq Ahmad dated 24-11-87 is Ex.DW1/C. In the cross-examination this witness deposed that he has no personal knowledge about the present case. He further says that during the year 1987 he was not posted in the District Court. 9. DW 2 is Sayed Akhlaw Ahmad s/o Late Sh. Saeed Ahmad. He deposed that he is a summoned witness. On 21- 11-87 when he returned home at about 9.00 PM he was informed by his mother that Aziz Ahmad had been taken away by the NCB officials without any order of summon. On 22-11- 87 after making inquiry he came to know that Narcotics Control Bureaue had there office at Ranjit Hotel, near Turkmaa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not beaten by the NCB officials or his brother Aziz Ahmad was not detained illegally. He had not cross checked as to mark C was actually received by the Commissioner of Police/Lt. Governor of Delhi. He denied the suggestion that no telegram was ever sent to the concerned authorities. 15. The Hon'ble Supreme Court in the case of UOI & Ors. Vs. Bal Mukund JT 2009 (5) SC 45, has been pleased to observe as under: 19. The prosecution case principally hinges on the purported confessions made by the respondents. The learned Special Judge failed and/ or neglected to notice that the respondent No. 3 had retracted his confession at the earliest possible opportunity. He could have, therefore, been convicted only if independent corroboration thereof was available. Admittedly, no contraband was found from his possession. He was prosecuted for entering into a conspiracy in regard to commission of the offences under Section 8/18 of the Act with the respondent Nos. 1 and 2. Such conspiracy was not proved by the prosecution. No evidence whatsoever was brought on record in that behalf. The High Court, in our opinion, therefore, rightly accepted the contention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against a co-accused, Section 30 of the Evidence Act being not applicable, we have not been shown as to under which other provision thereof, such a confession would be admissible for making the statement of a co-accused relevant against another co-accused. If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. If such a legal principle can be culled out, the logical corollary thereof would be that the co-accused would be entitled to cross-examine the accused as such a statement made by him would be prejudicial to his interest. 23. We may notice that in State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru AIR 2005 SC 3820, this Court has laid down the law in the following terms: 38. The use of retracted confession against the co- accused however stands on a different footing from the use of such confession against the maker. To come to grip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uidelines, this Court has gone through all the judgments cited by the petitioner and has also dealt with the judgment in the case of Francis Stanly @ Stalin Vs. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram, AIR 2007 SC 794 and Bal Mukund (supra). It has been concluded by this Court in that case that :- (i) The DRI officials/custom officials can record statement under Section 67 of the NDPS Act or under Section 108 of the Customs Act during the course of enquiry with a view to elucidate information about the commission of offence in those acts, which may be permissible despite the bar created by Section 25/26 of the Evidence Act. However, such power is not to cut short the process of investigation by recording confessional statement instead of collecting independent evidence. (ii) If the statements are in the nature of confession, prudence requires that such statement shall be corroborated by an independent evidence. However, if those statements are retracted and it is alleged that they were not voluntary then the onus to prove that there was no retraction or the statements were voluntary would be on the prosecution. (iii)Moreover, the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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