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TMI Blog2020 (3) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... , 3/71 Vivek Khand, Gomti Nagar, Lucknow had filed a written complaint before the Court of Sessions Judge, Lucknow under Section 8C/20(b) (ii) (C)/29/25 of of NDPS Act, 1985 with the assertion that complainant was an intelligence officer in the Directorate of Revenue Intelligence, posted at Regional Unit, Lucknow and was competent to file this complaint. On the basis of a specific intelligence that Hashish (Charas) is being transported from Nepal by Truck bearing Registration No.UP78/AT 3680 the Deputy Director, Directorate of Revenue Intelligence, Lucknow had sent a team with the direction to intercept the said truck, contraband goods and accused persons. As per the intelligence, it was informed that the said Charas was kept in secret cavity in the back of the driver's cabin of the truck. On getting this information two public witnesses Shri Amrajeet and Shri Rakesh Sharma were called by the DRI officials at Capt. Manoj Pandey Chauraha near Gomti Nagar Police Station, Lucknow at 4.45 A.M. on 28.05.2006. They were told about the information and were requested to accompany the team to witness the proposed action of interception, search of the truck and recovery of the contraband ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictation of the accused before Shri Atul Kumar Srivastava, Intelligence Officer, DRI, Lucknow Regional Unit, Lucknow and the statement of accused Rajesh Kumar Mishra, Driver was written himself before Shri Ravindra Kumar Tiwari, Intelligence Officer, DRI, Lucknow Regional Unit, Lucknow. 6. Shri Rajesh Kumar Mishra, driver, in his statement dated 28.05.2006 accepted the crime mentioned in the Panchayat Nama/recovery memo dated 28.05.2006. He also revealed that he came in contact of present appellant at a Dhaba in Nankari (Kanpur) for about one month ago. On the first meeting appellant revealed that he had a truck which contained secret cavity and asked me to drive said truck which contains illegal goods in the secret cavity for which he was to be paid Rs. 7000/-. On 27.05.2006 present appellant called Rajesh Mishra at Dhaba situated at Basi (District Sidharth Nagar) near petrol pump. On the said place appellant met Rajesh Kumar Mishra and handed over him the said truck and introduced him to Raju Dubey (Khalasi) at the said truck. Appellant revealed that the Charas was kept in the secret cavity as stated above. They were directed to drive the said truck to Kanpur where the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold the said truck to Amit Kumar. Shri Vijay Narain Sharma disclosed that he came in contact with Amit through a broker at RTO officer when in the RTO office said broker in the name of Pandey was contacted no such person was found. As per market value the 180 Kg. Was found value of Rs. 54.00 Lakhs and the value of the truck was Rs. 4.00 Lakhs. 10. On behalf of prosecution, four witnesses PW 1 Ravindra Kumar Tiwari, PW 2 Atul Kumar Srivastava, PW 3 Rajesh Khanna, PW 4 Radha Raman Singh were examined and to prove the guilt of the appellant Exhibits Ka 1 to Ka 26 were produced. 11. After completion of the prosecution witnesses statement of accused was recorded under Section 313 Cr.P.C. wherein he was referred to the evidence recorded against him during the trial to which he denied and stated that he is innocent. He has got no concern either with the said truck or with the other two accused named above. No recovery has been taken place from his possession, nor from his house any incriminating material has been recovered. He has been falsely implicated in this case. Accused was given a chance to adduce in his defence but no such evidence has been given. 12. After completion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t corroborated by any independent evidence and material whereas in the present case, there is no connecting evidence in commission of crime against the appellant either collected by the Investigating Officer during investigation or produced during trial. 16. To substantiate the argument, learned counsel for the appellant has placed reliance upon a case law 2018 (3) JIC 820 (SC) : Surinder Kumar Khanna Vs. Intelligence Officer, Directorate of Revenue Intelligence. The brief facts of the said case are similar to the present case and according to the case of Surinder Kumar Khanna (supra) on a specific information that narcotic drugs were going to be transported in a truck No. PB 02 AJ 7288, the officers of the Directorate of Revenue Intelligence (for short "DRI") laid picket at a toll barrier and when said Indica Car of white color was intercepted, in the said car two persons, Raj Kumar @ Raju and one Surinder Pal Singh were found. The vehicle was being driven by one Raj Kumar @ Raju whereas Surinder Pal Singh was sitting next to him. When search of the vehicle was made, four packets wrapped with yellowish adhesive tapes were found concealed in the door of Dickey of the car. The gros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Pal Singh." 17. The said conviction was challenged before the Hon'ble Apex Court. The Hon'ble Apex Court after taking into consideration the earlier pronouncements of Apex Court found that the issue whether statement recorded under Section 67 of NDPS Act can be construed as a confessional statement even if the officer who recorded such statement was not to be treated as a police officer, has now been referred to a larger bench : - "10. Even if we are to proceed on the premise that such statement under Section 67 of the NDPS Act may amount to confession, in our view, certain additional features must be established before such a confessional statement could be relied upon against a co-accused. It is noteworthy that unlike Section 15 of Terrorist and Disruptive Activities Act, 1987 [Similarly Section 18 of Maharashtra Control of Organized Crime Act, 1999] which specifically makes confession of a co-accused admissible against other accused in certain eventualities; there is no such similar or identical provision in the NDPS Act making such confession admissible against a co-accused. The matter therefore has to be seen in the light of the law laid down by this Court as reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to "lend assurance to other evidence against a co-accused". In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this: "where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence". In Bhuboni Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that "a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence." 18. The Hon'ble Apex Court also taken into account the law propounded by the Hon'ble Apex Court in the case of Kashmira Singh Vs. State of Madhya Pradesh (supra) which was approved by the Constitution Bench in Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar (1964) 6 SCR 623 at 631-633. On these assertion, learned counsel for the appellant has argued that the Hon'ble Apex Court in the case of Surinder Kumar Khanna (supra) has held that the statement of co-accused recorded under Section 67 of NDPS Act cannot be made basis for conviction against other co-accused persons. 19. Another case law cited b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining them. So, their statement recorded under Section 67 of NDPS Act remain unrebutted. 22. To substantiate the argument, learned counsel for the DRI has relied upon a case law (2011) 11 SCC 347 : Ram Singh Vs. Central Bureau of Narcotics. In the said case law before the Apex Court following question fall for determination : "8. In view of the rival submissions questions which fall for determination in this appeal are as follows : (i) Whether the confessions made before the officers of the Central Bureau of Narcotics are admissible in evidence; (ii) Whether the confessions made were voluntary in nature and if so without corroboration, can it form the basis for conviction; and (iii) Whether the appellant can be said to be in possession of the opium or selling the same." 23. While considering these question Hon'ble Apex Court has, after taking into consideration the earlier pronouncements, held as under : - 13. This Court had the occasion to consider this question further in the case of Kanhaiyalal vs. Union of India, 2008 (4) SCC 668, wherein it has been held as follows : "44. In addition to the above, in Raj Kumar Karwal v. Union of India this Court held that of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eat or promise, when irrelevant in criminal proceeding.- 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 a temporal nature in reference to the proceedings against him." From the plain reading of the aforesaid provision it is evident that a confession made by an accused is rendered irrelevant in criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, threat or promise with reference to the charge against the accused. 16. A confession, if it is voluntary, truthful, reliable and beyond reproach is an efficacious piece of evidence to establish the guilt of the accused. However, before solely acting on confession, as a rule of prudence, the Court requires some corroboration but as an abstract prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be arranged. There was, under the circumstances no delay in recording the statements of the appellants. Further, it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial Judge under Section 313 of the Code of Criminal Procedure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of the appellants' conviction." 20. Same view has been reiterated by this Court in the case of Kanhaiyalal (supra) in which it has been observed as follows : "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, the bar under Section 24 and 27 of the Evidence Act cannot be attracted and the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person. Since a conviction can be maintained solel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the face of the state of evidence it is difficult to hold that the appellant was in conscious possession of the opium. Section 18 of the Act prescribes punishment for possession and that possession, in our opinion, has to be conscious. In the facts of the present case it is difficult to hold that the appellant was in possession of the opium and, therefore, his conviction and sentence cannot be sustained." 24. Another case law relied by learned counsel for the DRI is (2003) 7 SCC 465 : Madan Lal and another V. State of H.P., in this case law the Hon'ble Apex Court while interpreting the word "possession" has held as under : - "22. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes. 23. The word 'conscious' means awareness about a particular fact. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case against the appellant beyond all reasonable doubts. So, if the prosecution was relying upon the statement of these two co-accused persons Rajesh Kumar Mishra and Raju Dubey, they should have been produced before the Court and should have afforded an opportunity of cross examination to the appellant. 26. To my view, it would not be safe to rely upon the statement of these two persons recorded under Section 67 NDPS Act as the appellant was not afforded any opportunity of cross examination to these two co-accused persons. So, I fully agree with the case of Surinder Kumar Khanna (supra) and to my view it would not be safe to uphold the conviction of the appellant only on basis of statements of co-accused Rajesh Kumar Mishra and Raju Dubey recorded under Section 67 of NDPS Act. To my view the learned trial court has wrongly convicted the appellant as stated above. There was no cogent and reliable evidence against the appellant. So, to my view the judgment of the trial court suffers from manifest error of law and fact, which deserved to be set aside. 27. Accordingly, the conviction recorded by the trial court by means of judgment and order dated 12.07.2013, passed by the learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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