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TMI Blog2016 (7) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court requires some corroboration, but, it can not be said that conviction can not be recorded on sole confession, if the confession has voluntarily been made. The appellant has made confessional statement and, more over, independent witness deposed that recovery has been made and, further, the official as well as the independent witnesses supported the prosecution case regarding the search, seizure and recovery and his conviction can sustain on the said confessional statement, find and hold that the prosecution has been able to prove the charge beyond all reasonable doubts. - Criminal Appeal (SJ) No. 766 of 2015 - - - Dated:- 5-7-2016 - Gopal Prasad, J. For the Appellant : M/s Shri Prakash Tiwari Mahesh Kumar, Advs For the Respondent : Mr. S.D. Sanjay, Addl. S.G, with Mr. Rakesh Kumar Sinha, CGC JUDGMENT Heard the learned counsel for the parties. 2. The appellant has been convicted under Section 15(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, 'the Act') for having possession of 266 K.G. of dodda and sentenced to undergo rigorous imprisonment for ten years and a fine of rupees one lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pus, P.O. I.A.R.I, New Delhi - 110 014, for checking of morphine contents therein. 4. A petition was filed on 21.01.2009 for re-sampling and deputation of Magistrate for drawing sample to send it to Laboratory at New Delhi, on which, by Court's order, dated 17.02.2009, sample taken before Shri Ashok Raj, Judicial Magistrate, and the re-sampling duly sealed and signed by the Judicial Magistrate sent for chemical examination and, in the meantime, the complaint filed and, thereafter, a report received that the seized articles contains 0.6 per cent morphine. 5. On filing the complaint, cognizance taken and the trial proceeded after framing of the charge. 6. During the trial nine witnesses were examined, who are P.W. 1 Amarnath, Inspector, Custom, who supported the prosecution case regarding the receipt of the information from the coded informer through Superintendent, I.P. Singh, and constituted a preventive team in which Siman Ekka (P.W. 2), B.N. Pandit (P.W. 3), Amarnath (P.W. 1) and sepoy and havildar were members and they went to Chhapwa Terminal and the bus was apprehended, searched and from the said bus, six big and two small gunny bags containing dodda, recovered fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that interrogatory statement and the confessional statement recorded by him and bears his signature. P.W. 7 is Md. Mustafa. He has proved panchnama and has also proved the signature in seizure list in Custom office. P.W. 8 is Laldeo Ram proved his signature on the panchnama and signed on interrogatory statement as well as confessional statement and has signed by the trial Court taking into consideration the office of the witnesses. 8. The trial Court, taking into consideration the evidence of the witnesses, convicted and sentenced the appellant, as mentioned above, on the ground that the prosecution has been able to prove the possession of the article and the article, seized, was found to be morphine of both the two independent witnesses and Custom Officers supported the prosecution case regarding the recovery of the articles from the possession of the appellant and the Katib (writer), who recorded the interrogatory statement and voluntary statement, has proved Exhibits 10 and 11, hence, the prosecution has been able to prove the charge and so convicted and sentenced the appellant, as mentioned above. 9. The learned counsel for the appellant, however, challenged the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant has confessed his guilt in the interrogatory and voluntary statements, then, conviction can be recorded on the sole confession and has placed reliance upon decisions reported in (2011) 11 S.C.C., 347 (Ram Singh Vrs. Central Bureau of Narcotics) and (2008) 4 S.C.C., 668 (Kanhaiyalal Vrs. Union of India) and has contended that if the statement given was voluntary without any threat or compulsion and if supported by corroborative evidence then conviction can be recorded. 11. Hence, taking into consideration the respective submissions I proceed to consider the question for consideration whether the prosecution has proved the charge to record a conviction. The prosecution case, as alleged, is that the information received through the coded informer regarding the transportation of dodda in huge quantity through bus, bearing registration no. BR-16P-1251 and, accordingly, a preventive team was organized and the said bus was apprehended and about 266 K.G. dodda was recovered in six big and two small bags, the said articles were brought in the Customs Office and the same was weighed and seizure list and panchnama prepared before two independent witnesses, Form F was also prepar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2009. However, he has stated that he does not know where the seized articles were kept from 23.07.2008 to 21.09.2009. P.W. 6 is Ranjit Kumar, who has come to prove that the interrogatory statement recorded and written by him and bear his signature. P.W. 7 is Md. Mustafa, the driver, who proved his signature on the seizure list and panchnama. P.W. 8 is Laldeo Ram, the cleaner (khalasi) of the said bus, who has proved his signature on panchnama and interrogatory statement as well as on the confessional statement, hence, it is apparent that the prosecution has been proved by oral evidence that they got information about the bus through coded informer and, then, team constituted, reached Chhapwa More, waited for the arrival of the said bus and when the bus arrived, the same was stopped and from the bus eight bags of dodda recovered, the appellant accepted the ownership of the bags, but, did not produce any paper and, then, articles, seized, were taken to Customs Office where articles, seized, were weighed, seizure list and panchnama prepared and even three samples were taken which were sent to Kolkata Laboratory from where the report received that the articles, seized, stood the test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused . 14. The Supreme Court repelled the finding of the High Court and observed as follows : In our view the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the allege quantities of charas and ganja were seized from the possession of the accused. The best evidence should have been the seized material which ought to have been produced during the trial and marked as material exhibit. There is no explanation for this failure to produce them. Mere oral evidence as to their feature and production and panchnama does not discharge the heavy burden which lies on the trial where the offence is punishable with a stringent sentence under the Narcotic Drugs and Psychotropic Substances Act, 1985 . 15. The plea has been taken by the prosecution that prosecution has proved certification of the article, seized, hence, the certification, itself, amounts to the evidence of the possession of article, seized. The prosecution has only proved the certification of the article, but, has not produced evidence regarding the destruction of the article, seized, and the certification is not in compliance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court as material exhibit and there is no explanation for non-production, then, the Court has no evidence to connect the Forensic Science Laboratory report with the substance that were seized from the possession of the others. 19. Here, under the facts and circumstances of the case, it is apparent that the prosecution has not produced the dodda before the Court nor has even produced the sample taken from the said dodda and has not given any explanation for non-production of the article seized from the appellant. Hence, there is nothing on record to connect the Forensic Science Laboratory report with the article, seized, to say that article, seized, was narcotics. 20. More over, the fact that P.W. 1, in his entire evidence, has not stated where the articles, seized, were sealed. He has not stated that whether the articles, seized, were kept and though he has stated that all the bags seized were separately weighed, but, the separate weight of each seized bags were not written in the seizure list. He has, further, stated that three samples were taken out, but, the samples were not taken in Court as there is no system for taking the sample in Court. However, P.W. 2 though has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e possession of the appellant or the accused and non-production of such material evidence was not a mere procedural matter and has caused prejudice to the accused. However, the contention that the certification of the article, seized, as apparent from Exhibit 12, but, it does not contend the destruction of the article, seized. However, the said certification also is not in consonance with and it is relevant to quote paragraph 6 of the decision reported in (2013) 14 S.C.C. 527 (supra), which is as follows : 6 : Mr. Jain submitted that the prosecution had also taken a stand in the alternative before the trial court that the contraband goods were destroyed and, produced before the trial court only the samples of the contraband goods. He referred to the provisions of Section 52-A of the NDPS Act to submit that in a case of destruction of contraband goods the procedure as laid down in sub-section (2) of Section 52-A of the Act has to be followed and in case of destruction, the inventory prepared at the time before destruction and the photographs of the narcotic drugs and psychotropic substances and the list of samples drawn under sub-section (2) of Section 52-A of the Act as certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008) 16 S.C.C. 417 (supra) and (2011) 5 S.C.C., 123 (supra). 24. The possession of the article, seized, has not been established and when the article, seized, has not been produced as material exhibit nor even sample taken proved as material exhibit, hence, the Court has no evidence to connect the Forensic Science Laboratory report with substance, which has been seized. 25. The learned counsel for the State has, further, placed reliance on decisions reported in (2008) 4 S.C.C., 668 (supra) and (1990) 2 S.C.C., 409 (Raj Kumar Karwal Vrs. Union of India Ors.), (2011) 11 S.C.C., 347 (supra) and (1999) 6 S.C.C., 1 (Pon Adithan Vrs. Deputy Director, Narcotics Control Bureau, Madras) conviction can be recorded on the confession of the appellant as appellant has confessed before the Superintendent of Customs is admissible in evidence under Section 67 of the Act. 26. Hence, the question under the facts and circumstances of the case is that whether the conviction can be recorded on the sole retracted confession of the accused or not. 27. The learned counsel for the appellant, however, placed reliance on the decision reported in (2008) 16 S.C.C. 417 (supra) that the officer em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 67 of the Act when accused is made aware of confession made by him and he does not make complaint within a reasonable time, the same shall be relevant factor to adjudicate as to whether the confession was voluntary or not and taking into consideration the fact that the appellant was produced before the Court on several dates and at no stage did he complain to Special Judge of any torture or harassment in recording the confession it is only when his statement was recorded under Section 313 of the Criminal Procedure Code that he retracted and denied making such confession and went to the extent of saying that his signature was obtained on blank paper and in the facts and circumstances confessional statement made, the appellant was held not voluntary in nature and to form the purpose of conviction. The reliance has also been placed in decision reported in (2008) 4 S.C.C., 668 (supra), (1990) 2 S.C.C., 409 (Raj Kumar Karnwal Vrs. Union of India Ors.) where it has been recorded that the conviction can be recorded. 29. In decision reported in (1999) 6 S.C.C., 1 (supra) where the fact that the appellant was in possession of 150 gm heroin and the argument raised that the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53 of the Customs Act is a police officer and, therefore, attract the provision of Section 25 of the Indian Evidence Act, 1872, and finally taking into consideration that the Hon'ble Supreme Court has already doubted the dicta in (2008) 4 S.C.C., 668 (supra) and (2011)12 S.C.C. 298 (Nirmal Singh Pehlwan Vrs. Inspector, Customs). It is relevant to quote paragraphs 40 and 41 of decision reported in (2013) 16 S.C.C. 31 (supra) : 40 : In our view the aforesaid discussion necessitates a re-look into the ratio of Kanhaiyalal case. It is more so when this Court has already doubted the dicta of Kanhaiyalal in Nirmal Singh Pehalwan wherein after noticing both Kanhaiyalal as well as Noor Aga, this Court observed thus : (Nirmal Singh Pehlwan case, SCC p. 302, para 15) : 15. We also see that the Division Bench in Kanhaiyalal case had not examined theprinciples and the concepts underlying Section 25 of the Evidence Act, 1872 vis- -vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar case. The latest judgment in point of time i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, that he was carrying six big and two small bags of dodda and he has not complained that he has not made any such statement, voluntary, and has not reported of having made the statement in voluntary or under threat. Except, in the statement under Section 313 of the Criminal Procedure Code at a belated stage where he has merely made simple denial that he has not made such statement, but, has not given any reason, hence, there is no reason to hold that the confession was not voluntary for non-production of physical evidence, like the seized article and the sample, however, the witnesses supported the prosecution case, the witness, P.W. 2 has also supported prosecution case. It is true that before acting solely on confession as a rule of prudence the Court requires some corroboration, but, it can not be said that conviction can not be recorded on sole confession, if the confession has voluntarily been made. However, decisions reported in (2008) 4 S.C.C., 668 (supra), (2011) 11 S.C.C., 347 (supra) and (1990) 2 S.C.C., 409 (supra) having regard to the fact that the appellant has made confessional statement and, more over, independent witness deposed that recovery has been made and, fu ..... 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