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TMI Blog2006 (8) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: 2. Charge has been framed. Trial is on. It has transpired during evidence that the two alleged independent public (chance) witnesses, Ravi and Charan Singh happened to be the witnesses of the NCB i.e. prosecuting agency in the present case, in other cases as well. It is not in dispute that Ravi is cited as a witness to the alleged recovery in three other cases, present one being the fourth and Charan Singh is cited as a witness in two other recoveries, present one being the third. xxxx xxxx xxxx xxxx xxxx 10. It is highly unlikely that same two persons would be available as chance witnesses time and again to the NCB. 2. The learned Counsel submitted that in the said order dated 5.7.2005 the case pertained to a recovery said to have been made opposite Ashoka Hotel where these two witnesses namely Ravi and Charan Singh happened to be present. In the present case the recovery is said to have been made from ISBT where, again, the same two witnesses, namely Ravi and Charan Singh happened to be present. He submitted that as these witnesses are not related, there is no question of them being at the same place in two different cases both involving recovery of narcotic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the recovery witnesses, namely Ravi and Charan Singh are discarded, the confession made by the present petitioner is sufficient to ensure his conviction. For this proposition also, he relied upon the said decision of the Supreme Court in the case of M. Prabhulal (supra) wherein in paragraph 5 it is indicated that if a confessional statement is voluntary then the same can be made the basis of a conviction. In the light of these observations, the learned Counsel for NCB contended that in the present case also, the petitioner has made a voluntary confession. He further submitted that the petitioner has not retracted that confession and, therefore, even on the basis of the confession the petitioner can be convicted. 6. The learned Counsel for the NCB next placed reliance on the decision of the Supreme Court in the case of Customs, New Delhi v. Ahmadalieva Nodira 2004 [1] JCC 662 to demonstrate as to what is the scope of Sections 37 and 67 of the NDPS Act. Paragraph 7 of the said decision reads as under: 7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or loyal unveracity? For sure, the consternation of the community at this flood of perjury will shake its faith in the veracity of Police investigation and the validity of the judicial verdict. We have no doubt that the petitioner, who has given particulars of a large number of cases where he had been cited as witness, is speaking the truth even assuming that 3,000 cases may be an exaggeration. In Justice, Justices and Justicing and likewise in the Police and Policing, the peril to the judicial process is best left to imagination if professional perjurers like the self-confessed Paniwala are kept captive by the police, to be pressed into service for proving `cases'. Courts, trusting the police may act on apparently veracious testimony and sentence people into prison. The community, satisfied with such convictions, may well believe that all is well with law and order. We condemn, in the strongest terms, the systematic pollution of the judicial process and the consequent threat to human rights of innocent persons. We hope that the higher authorities in the Department who, apparently, are not aware of the nefarious goings-on at the lesser levels will immediately take measures to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alleged recovery the contraband was said to be of a light brown colour. However, after a period of one month when the sample was examined by the Forensic Science Laboratory the same has been shown as light brown coloured lump . This, itself, according to the learned Counsel for the petitioner, indicates that the sample tested was not the material allegedly recovered and, therefore, this further casts doubts on the recovery. 10. Considering the arguments advanced by the learned Counsel on both sides, the following aspects need examination: 1. What are the parameters for the grant of bail in a case falling under Section 37 of the NDPS Act? 2. What is the worth of evidence of `stock witnesses'? 3. Can a conviction under Section 21(c) of the NDPS Act be based solely on the confession of the accused before an officer of the Narcotics Control Bureau? What are the parameters for the grant of bail in a case falling under Section 37 of the NDPS ACT? 11. Section 37 requires that any person accused of an offence under the NDPS Act, to which Section 37 applies, should not be released on bail during trial unless the mandatory conditions provided in Section 37, nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The Supreme Court further held: The duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. As regards the second condition that the accused is not likely to commit an offence while on bail, the Supreme Court held that it must mean an offence under the Act and not any offence whatsoever be it a minor or major offence. The Supreme Court held: Similarly, the Court will be required to record a finding as to the probability of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. Although, the aforesaid decision of the Supreme Court was in respect of the provisions of Section 21(4) of MCOCA, they would apply with equal vigour to a case under Section 37 of the NDPS Act as the provisions are identical. This has so been applied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with us a panch witnesses, during the entire search proceedings and they both agreed to it. In the complaint filed by the NCB it is alleged that both panch witnesses and the NCB officer moved towards the Peepal Tree and they saw a person standing there, who matched the description given in the secret information. It is further alleged that these witnesses signed on the search authorisation shown to the petitioner prior to his search. These witnesses also allegedly signed on the Section 50 notice whereupon the petitioner is also alleged to have signed, waiving his right of being searched in the presence of a Magistrate or a Gazetted Officer. It is further alleged that the search was conducted on the petitioner and the said contraband was recovered in the presence of the said witnesses. Samples were allegedly taken in their presence and slips with their signatures were placed on these samples and then sealed. The panchnama was allegedly prepared on the spot and the two witnesses allegedly signed all the pages of the panchnama. As per these allegations the prosecution maintains that these two witnesses - Ravi Kumar and Charan Singh - were independent witnesses who were available o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts suddenly grow in wealth but to be activist and intelligent enough to track down those who hold the nation's health, wealth, peace and security in jeopardy. The only insistence is that the means must also be as good as the ends. Can a conviction under Section 21(c) of the NDPS Act be based solely on the confession of the accused before an officer of the Narcotics Control Bureau? 19. Section 25 of the Indian Evidence Act, 1872 stipulates that [n]o confession made to a police officer, shall be proved as against a person accused of any offence. But, a confession made to person who is not a `police officer' is not always irrelevant. Section 24 of the Indian Evidence Act, 1872 provides that a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a broad and popular sense. But at the same time it cannot be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred within the category of police officers. See State of Punjab v. Barkat Ram and Raja Jaiswal v. State of Bihar . This view has been reiterated in subsequent cases also.... xxxxx xxxxx xxxxx xxxxx ... We must, therefore, negative the contention that an officer appointed under Section 53 of the act, other than a police officer, is entitled to exercise `all' the powers under Chapter XII of the Code, including the power to submit a report or charge-sheet under Section 173 of the Code. That being so, the case does not satisfy the ratio of Badku Joti Savant and subsequent decisions referred to earlier. By this reasoning a voluntary confession made before an authorised officer of the NCB could also be received in evidence against the accused who made the confession. 21. This takes us to the discussion of the Supreme Court decision in M. Prabhulal (supra) which was relied upon by the learned Counsel for the NCB. In that case the appellants before the Supreme Court had been convicted by the Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Kumar and Charan Singh, have, prima facie been held to be stock witnesses . The circumstances indicated above show that no credence can be attached to their evidence as their presence is suspect and doubtful. But, recovery could still be established in trial if the evidence of the officers of the NCB is credible and if it can be shown that the confessional statement made by the petitioner was voluntary. On behalf of the petitioner it was contended that though the petitioner did not expressly retract his confessional statement at the first available opportunity, he did submit an application on 25.11.2003 spelling out clearly that he had been falsely implicated. The application allegedly also contains a narrative of the true facts and circumstances of how the petitioner was roped in this case. This, however, is a matter which requires to be established on evidence. 24. It was also contended on behalf of the petitioner that there was grave doubt with regard to the content of the alleged contraband recovered. As per the prosecution the substance recovered was a light brown powder. However, the sample received at the laboratory was in the form of light-brown coloured lump. Moreo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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