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TMI Blog2023 (9) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. Effect of Tofan Singh's verdict on Balwinder Singh's case - HELD THAT:- Now that it has been declared in Tofan Singh s case36 (supra) that the judgements in the case of KANHAIYALAL VERSUS UNION OF INDIA [ 2008 (1) TMI 828 - SUPREME COURT] and RAJ KUMAR KARWAL VERSUS UNION OF INDIA [ 1990 (3) TMI 73 - SUPREME COURT] did not state the correct legal position and they stand overruled, the entire case set up by the prosecution against Balwinder Singh3, collapses like a House of cards. It is not in dispute that Balwinder Singh3 was not apprehended by the NCB officials from the spot where the naka was laid and that Satnam Singh5 alone was apprehended in the Indica car. The version of the prosecution is that after Satnam Singh5 was arrested, his statement13 was recorded under Section 67 of the NDPS Act wherein he ascribed a specific role to the co-accused - Balwinder Singh3 and the Sarpanch. Once the confessional statement13 of the co-accused, Satnam Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not meet the test of preponderance of probability and has rightly been disbelieved by both the courts in the absence of any corroboration through cogent evidence. Plea of accused being in the custody of the NCB much before the naka was laid - HELD THAT:- The records pertaining to the bill were not produced by the witness summoned and the bill did not bear the signature of any authority even to prove that the mobile phone number asserted by the appellant Satnam Singh5 as belonging to him, stood in his name - there are no reason to take a different view. Plea of unreliability of the testimony of the independent witness, Sonu - HELD THAT:- In the case at hand, the naka was laid by the officials of the NCB in an open area near the roundabout of Sectors 24/25, Chandigarh. Such was the location that there was no inhabitant in the vicinity and the time of the naka was an unearthly hour of 01.00 a.m. on 12th December, 2005. In this background, the two independent witnesses who were driving from Jalandhar towards Chandigarh, were flagged down by the NCB officers and joined in the investigation. Therefore, the shadow of doubt sought to be cast on the testimony of Sonu8 by c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I. FACTUAL MATRIX: (a) THE INCIDENT IN QUESTION 2. The incident in question relates back to 11th December, 2005, when as per the version of the prosecution, the Narcotics Control Bureau For short NCB received secret information that some persons who were indulging in the sale of contraband, were travelling in a white coloured Indica car from Amritsar to supply contraband at a bus stand at Chandigarh. On 12th December, 2005, at 01:00 am, a naka was laid by the NCB team at Chandigarh and two independent witnesses [Mukesh Kumar and Sonu PW-1 ] were associated in the investigation. At 03:15 am, the NCB team noticed that a car White coloured Indica Car bearing registration number HR-01-J-9639 (Marked as P-1) coming from Sector 25 and heading towards Sector 24, Chandigarh, stopped at a little distance from the place of naka and two persons wearing turbans alighted from the car and ran away. However, the third person, also wearing a turban who had later on disclosed his name as Satnam Singh5, remained seated in the car. 2.1. Members of the NCB team intercepted the vehicle and searched Satnam Singh5 in the presence of the independent witnesses. On searching th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On conclusion of the investigation, the NCB submitted a complaint Exhibit P-13 before the Judge, Special Court, Chandigarh stating that Satnam Singh5 and Balwinder Singh3 had committed offences punishable under Sections 8, 21, 27A and 60 of the NDPS Act. Charges were framed against the two accused under Section 21 r/w Sections 8, 27A and 60 of the NDPS Act. On 02nd July, 2007, both the accused pleaded not guilty and claimed trial. (c) PROCEEDINGS BEFORE THE TRIAL COURT 2.5. On its part, the NCB examined five witnesses namely Sonu8 who was an independent witness and joined the investigation when the naka was laid on 12th December, 2005; Constable Balwinder Singh10 whose deposition related to deposit of the samples18 of the contraband with the Central Revenue Control Laboratory, Delhi For short, the CRCL, New Delhi ; P.K. Sharma PW 3 , the then Intelligence Officer, NCB who had received the secret information based on which the naka was laid and Satnam Singh5 was arrested; S.K. Mittal19, the Chemical Examiner who deposed about receiving the sample in the Narcotic Section of the CRCL, New Delhi from the PW- 210 and his report20 dated 24th February, 2006 to the effect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entenced to death under Section 21(c) read with Section 31A(1a) of the NDPS Act. 2.9. Coming to the co-accused Satnam Singh5, the learned Judge, Special Court, Chandigarh took note of the fact that he was a government servant working as a Warden in Punjab Jail and was posted at Sangrur at the time of committing the offence, which added to the gravity of the offence. Therefore, he was sentenced under Section 21(c) of the NDPS Act to undergo rigorous imprisonment for a period of twelve years and to pay a fine of ₹1,50,000/- (Rupees One lakh and fifty thousand) and in default thereof to further undergo rigorous imprisonment for a period of three years. (d) PROCEEDINGS BEFORE THE HIGH COURT 3. Aggrieved by the aforesaid judgment, both the appellants approached the High Court. A Murder Reference under Section 366 Cr.P.C. was also forwarded to the High Court in view of the death sentence awarded by the Special Court, Chandigarh to the appellant Balwinder Singh3. The entire evidence was analysed afresh by the High Court and relying on the decisions of this Court in Kanhaiyalal vs. Union of India 2008 (4) SCC 668 , Ram Singh vs. Central Bureau of Narcotics (2011) 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 had escaped from the car just before the point where the naka had been laid and could not be apprehended, would not be a ground to acquit him or exonerate him of the charge of conscious possession of heroin. 3.2. The High Court went on to reject the defence version sought to be projected by Satnam Singh5 that Sonu8 [PW-1] was the real culprit and it was from him that the contraband was recovered but he got away by bribing the NCB team who cleverly planted the contraband in the car driven by Satnam Singh5. The plea taken that the other independent witness, Mukesh Kumar though arrayed as a prosecution witness and not produced, was a stock witness of the NCB, was also found to be meritless. The High Court observed that Mukesh Kumar was not examined during the trial since he had been won over by the appellants. As a result of the aforesaid discussion, both, Balwinder Singh3 and Satnam Singh5 were found to be in conscious possession of commercial quantity of heroin on the relevant date and the findings returned by the trial Court holding them guilty of the commission of offences punishable under Section 21(c) read with Section 8 of the NDPS Act, were upheld. The order of sentence i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has cited Ritesh Chakarvarti v. State of M.P. (2006) 12 SCC 321 ; Noor Aga v. State of Punjab and Another (2008) 16 SCC 417 ; Bhola Singh v. State of Punjab (2011) 11 SCC 653 ; State of Delhi v. Ram Avatar alias Rama (2011) 12 SCC 207 ; and Gorak Nath Prasad v. State of Bihar (2018) 2 SCC 305 . 4.2 The second plea taken is that the entire story setup by the prosecution is shaky inasmuch as the independent witnesses who were joined in, have a murky background and their testimonies ought to be disbelieved. The testimony of Sonu8 has been questioned as untrustworthy and it is stated that he could not be treated as an independent witness in terms of Section 100(4) of the Cr.P.C. It was contended that the High Court has erred in failing to re-evaluate the credibility of the said witness and satisfy itself as to whether he was in fact an independent witness. Thirdly, it was argued that the other independent witness, Mukesh Kumar was arrayed in the list of witnesses but not examined by the prosecution for the reason that he was a stock witness, as would emerge from the deposition of DW-331 and DW-432. Next, it was argued that the case property17, mainly the contraband that was all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were charged. It was thus stated that the impugned judgement does not deserve interference. III ANALYSIS AND DISCUSSION (a) SIGNIFICANCE OF TOFAN SINGH S DECISION 6. We have perused the impugned judgement and the records and given our thoughtful consideration to the arguments advanced by learned counsel for the parties. 7. When the present matter was considered by the High Court in the year 2013, it had accepted the arguments advanced by learned counsel for the respondent-NCB that officers of the Department of Revenue Intelligence who are vested with the powers of an officer-in-charge of the police station under Section 53 of the Act, are not police officers within the meaning of Section 25 of the Evidence Act and therefore held that a confessional statement of a person accused of an offence under the NDPS Act recorded by such an officer in the course of investigation, is admissible against him. The said argument had found favour with the High Court in the light of the decisions of this Court in Kanhaiyalal33 (supra) and Raj Kumar Karwal35 (supra) where it was held that a confession made by the accused before an officer of the NCB, is admissible in evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us. 157. On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] and Nirmal Singh Pehlwan v. Inspector, Customs [Nirmal Singh Pehlwan v. Inspector, Customs, (2011) 12 SCC 298 : (2012) 1 SCC (Cri) 555] are correct in law. 158. We answer the reference by stating: 158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are police officers within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. 158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. [emphasis laid] 10. In view of the aforesaid decision that declares that any confessional statement made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the officers of the NCB in the course of the investigation, the vital link between Balwinder Singh3 and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained. 13. As a result of the above discussion, we are of the opinion that Balwinder Singh3 deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act. Ordered accordingly. (c) HOW IS SATNAM SINGH S CASE PLACED ON A DIFFERENT FOOTING 14. We next come to the case of the appellant, Satnam Singh5. Again, as in the case of Balwinder Singh3, the statement13 made by Satnam Singh5 and recorded under Section 67 of the NDPS Act will have to be discarded outright as it cannot be used as a confessional statement having been recorded by the NCB officials who, in terms of the verdict in Tofan Singh s case36 (supra) are to be treated as police officers under the provisions of Section 25 of the Evidence Act. But unlike the case of Balwinder Singh3, the conviction of Satnam Singh5 does not hinge solely on his confessional statement13 made to the NCB officials. His case is on a different footing because it also rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily. , but went on to hold that since the provisions of the NDPS Act and the punishments prescribed therein are stringent, the extent of burden to prove the foundational facts cast on the prosecution, would have to be more onerous. The view taken was that courts would have to undertake a heightened scrutiny test and satisfy itself of proof beyond all reasonable doubt . Emphasis was laid on the well-settled principle of criminal jurisprudence that more serious the offence, the stricter would be the degree of proof and a higher degree of assurance would be necessary to convict an accused. [Also refer: State of Punjab v. Baldev Singh (1999) 6 SCC 172 , Ritesh Chakarvarti v. State of M.P. (2006) 12 SCC 321 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am. Even though one of the two independent witnesses [Mukesh Kumar] had turned hostile and was dropped by the prosecution, the testimony of the other independent witness [Sonu8] was consistent and nothing material could be elicited by the accused during his cross-examination. 18. Through the deposition of the Chemical Examiner [S.K. Mittal22], the prosecution successfully proved the report20 submitted by him stating inter alia that on testing the samples18, the substances drawn from the bags recovered from the car9 of the appellant Satnam Singh5, were heroin. The samples18 drawn and sealed were found untampered and the testimony of Constable Balwinder Kumar10 corroborated the fact that he had carried the samples18 with him and deposited them with the CRCL, New Delhi on 14th December, 2005 with all the seals intact. 19. Given the aforesaid narrative, we are of the opinion that the prosecution was able to discharge the onus cast on it to prove the foundational facts. Thus, the initial burden of proving that the appellant Satnam Singh5 had the knowledge that the car9 owned and being driven by him at the relevant point in time was being used for transporting narcotics, stood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e placed by learned counsel on the decisions in Dudh Nath Pandey v. State of Uttar Pradesh (1981) 2 SCC 166 , State of Haryana v. Ram Singh (2002) 2 SCC 426 , Adambhai Sulemanbhai Ajmeri and Others v. State of Gujarat (2014) 7 SCC 716 and Jumi and Others v. State of Haryana (2014) 11 SCC 355 to urge that defence witnesses are entitled to equal treatment with those produced by the prosecution and different yardsticks cannot be prescribed for prosecution witnesses as compared to defence witnesses is a well-settled principle of criminal jurisprudence, but cannot take the case of the appellant Satnam Singh5 any further inasmuch as the trial Court has carefully analysed the testimonies of the defence witnesses before drawing an adverse presumption against the accused. The High Court has also taken pains to go through the entire testimonies of the defence witnesses and only thereafter endorsed the view taken by the trial Court. There has been no arbitrariness or undue favour shown to the prosecution witnesses from the appellant-Satnam Singh5 to claim any bias. (g) PLEA OF UNRELIABILITY OF THE TESTIMONY OF THE INDEPENDENT WITNESS, SONU 24. As for the contention of learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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