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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 ..... party that the appellant should have summoned co-accused Rajesh Kumar Mishra and Raju Dubey for cross examination does not suit to the reasoning, as it was for the prosecution to establish its case against the appellant beyond all reasonable doubts - 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. Appellant is acquitted of all the charges leveled against him - Appeal allowed. - CRIMINAL APPEAL No. 1197 of 2013 - - - Dated:- 17-3-2020 - Hon'ble Anant Kumar, J. For the Appellant : Anil Kumar Pandey, A.P. Mishra,Ayodhya Prasad Mishra,Manish Bajpai,Manish Tiwari For the Respondent : I.B. Singh,Digvijay Nath Singh,Dipak Seth ORDER Hon'ble Anant Kumar,J. 1. This criminal appeal under Section 374 (2) of Cr.P.C. has been filed against the judgment and order dated 12.07.2013, passed by the learned Additional District Sessions Judge, Court No.8, Lucknow in Criminal Case No. 281A of 2006 (Union of India Vs. Aashu Pandit @ Aashu Bajpai @ Aash Narayan Sharma) by which the appellant has been convict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hhakhwa Bazar, Police Station Sikriganj, District Gorakhpur and the cleaner as Shri Raju Dube, S/o Shri Rajesh Dube, R/o Village Rooppur, Post office, Police Station and District Kannauj (truck Khalasi). 4. At first the driver and the Khalasi were hesitant but later on they disclosed that Charas was kept in the secret cavity made on the back of the driver's cabin. The said driver and Khalasi were given a right to be searched themselves as well as the truck before the nearest Magistrate or the Gazetted Officer in compliance of Section 50 of NDPS Act, 1985. Both the persons consented in writing before the intercepting party. For safety and security and on the consent of the driver and khalasi intercepting team took the truck along with both the public witnesses to DRI office at 2/31, Vishal Khand, Gomti Nagar, Lucknow and the search of the truck was made in the presence of the intercepting party and witnesses and 720 rectangular shaped bars of Charas (each bar of 250 gms.) were recovered at the instance of driver and khalasi from the secret cavity specifically fabricated on the back of the driver's cabin, which on weighing was found to be 180 Kgs. and after mixing the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othing incriminating was recovered from his residence. Various summons were issued to him but he did not appear before the Court and he was not found at the given address. 9. After filing of the complaint since whereabouts of the present appellant was not known the appellant was declared absconder by the trial court vide its order dated 18.02.2008 and the trial of other accused persons Rajesh Kumar Mishra and Raju Dubey proceeded. It is informed that in a separate trial they have already been convicted by the trial court. However, from the perusal of the record of this case which proceeded separately it is evident that later on it was revealed that present appellant is languishing in jail in Kanpur in some other case. So, the accused was summoned through B warrant from Kanpur jail and trial of the present appellant separately proceeded. During the trial the appellant denied all the allegations made against him in the complaint and he stated that he had no concern or relation with the opposite parties Nos. 1 2 Rajesh Kumar Mishra and Raju Dubey. He never met them and he even stated that the said truck UP 78 AT 3680 also does not belong to him. During the course of investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfessional statement of co-accused persons Rajesh Kumar Mishra and Raju Dubey. Prosecution in effort to prove either exclusive possession or the contraband article nor the prosecution could prove even the conscious possession of the appellant regarding the truck or the contraband contained therein through any direct or indirect evidence beyond any reasonable doubt. The trial court has wrongly passed the conviction order against the appellant without any evidence or material on record against the appellant. The prosecution also could not prove the link evidence either regarding the ownership of the truck in question or the ownership of the recovered contraband article against the appellant either during investigation or during trial. It is also stated that after recovery dated 28.05.2006 the appellant's house was also searched but no incriminating article was found from his house. The mode and manner of recording statement of arrested co-accused persons namely Rajesh Kumar Mishra and Raju Dubey under Section 67 of NDPS Act clearly indicates that both were recorded after taking them into custody by DRI officials. Therefore the same is also hit by Article 20 (3) of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onvicted the appellant along with other two accused persons Surinder Kumar Khanna, Raj Kumar @ Raju and Surinder Pal Singh. When the matter came up before the Hon'ble High Court in appeal, the High Court took a view that :- 5. As regards the appellant, it was observed by the High Court that he was specifically named by co-accused Raj Kumar @ Raju and Surinder Pal Singh in their statements. Apart from such statements nothing was produced on record to indicate the involvement of the appellant. The High Court however found that the case against the appellant was made out. It was observed: Offence of abetment under Section 29 of NDPS Act stood established against accused Surinder Kumar Khanna, showing that he was involved in drug trafficking. He was specifically named by accused Raj Kumar @ Raju and Surinder Pal Singh in their statements. Such statements of accused Raj Kumar @ Raju and Surinder Pal Singh recorded under Section 67 of the NDPS Act are admissible in evidence and are not hit by Section 25 of the Evidence Act because the officers of DRI, who had apprehended Raj Kumar @ Raju and Surinder Pal Singh, traveling in an Indica car and effecting recovery from them do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. Their Lordships also point out that it is obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in support of other evidence. In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated ? .................... 12. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar, (1964) 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has been cited with app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 67 of NDPS Act, complicity of the present appellant is fully proved and this statement was proved before the trial court as Ext. Ka-4 and Ext. Ka-10, so these statements could be read against the appellant and he could very well be convicted merely on the basis of these two statements. It is also stated that statement of Rajesh Kumar Mishra and Raju Dubey are not confessional statement for the reason that a confession cannot be made from any other person. Infact it is a piece of evidence and if it is corroborated with any other evidence, it is admissible as evidence. If there is proof before the Court that confession made by these two persons is voluntary, truthful, reliable and beyond reproach, then it is an effective piece of evidence to establish the guilty. 21. It is also stated that so far as the possession of the contraband is concerned, the word possession has not been defined under the provisions of NDPS Act. The expression possession is a polymorphyous term. It does not mean only the physical possession. The word conscious means awareness brought on fact. In the present case the appellant Ashu Pandit was well aware of the entire fact and was having act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case with which we agree, that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a police officer within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the NDPS Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of Section 24 to 27 of the Evidence Act. 14. From what has been observed above, the officers vested with the powers of investigation under the Act are not police officers and, therefore, the confessions recorded by such officers are admissible in evidence. Therefore, the question posed at the outset is answered in the affirmative and it is held that officers of the Central Bureau of Narcotics are not police officers within the meaning of Sections 25 and 26 of the Evidence Act and, hence, confessions made before them ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by him. No complaint about the same was made then also. Thereafter appellant was produced before the Court several times but he never retracted his confession. The appellant retracted the confession made by him for the first time in his statement under Section 313 of the Code of Criminal Procedure. In our opinion, when an accused is made aware of the confession made by him and he does not make complaint within a reasonable time, same shall be a relevant factor to adjudge as to whether the confession was voluntary or not. Here in the present case appellant was produced before the Court on several dates and at no stage he made any complaint before the Special Judge of any torture or harassment in recording the confession. It is only when his statement was recorded under Section 313 of the Code of Criminal Procedure that he retracted and denied making such a confession and went to the extent of saying that his signatures were obtained on blank pages. In the facts and circumstances of the case we are of the opinion that the confessional statements made by the appellant were voluntary in nature and could form the basis for conviction. The view which we have taken above finds suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the truck-drivers. In the confession appellant has not stated or for that matter none of the witnesses have deposed that he was involved in selling the opium-tablets. Therefore, the appellant cannot be held guilty for selling opium. 23. Whether in the state of evidence appellant can be held guilty for possessing the opium only on the ground that he brought the opium from the house of the owner to the hotel is another question which requires adjudication. 24. It is trite that to hold a person guilty, possession has to be conscious. Control over the goods is one of the tests to ascertain conscious possession so also the title. Once an article is found in possession of an accused it could be presumed that he was in conscious possession. Possession is a polymorphous term which carries different meaning in different context and circumstances and, therefore, it is difficult to lay down a completely logical and precise definition uniformly applicable to all situations with reference to all the statutes. A servant of a hotel, in our opinion, cannot be said to be in possession of contraband belonging to his master unless it is proved that it was left in his custody over which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD). 26. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. 25. After hearing the learned counsel for the parties and perusing the case laws cited from the respective sides, I am of the view that the facts of the case of Surinder Kumar Khanna (supra) are akin to the present case. In the present case the appellant was neither arrested on the spot, nor any incriminating article was recovered from his house when a search was made. Even the prosecution wholly failed to establish that the said truck was in any way connected with the appellant or the same was at any time in real or constructive possession/control of the appellant. The prosecution failed to establish the ownership of the truck and no evidence was there perta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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