ORDER
S.P. Khare, J.
1. Appellant Balkrishna Naik has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the Act) and sentenced to rigorous imprisonment for ten years and to a fine of Rs. , 1,;00,000/-. In default of payment of fine he has been sentenced to rigorous imprisonment for two years.
2. It is no longer in dispute that houses bearing number EWS/ 17and 18, in Sudhar Nyas Colony, Katni are of the ownership of accused No. 1 Rajkishore Naik who has been acquitted by the trial Court, Accused No. 2 Balkrishna Naik who is appellant herein is the brother of wife of Rajkishore Naik. On 18-9-1996, the Assistant Commissioner, Customs and Central Excise, Jabalpur in exercise of the powers under Section 41 of the Act issued the search warrant Ex. P-1 authorising Sharad Tripathi (P.W. 1), Inspector of Customs and Central Excise, Jabalpur to take search of the houses mentioned above. In this warrant it is mentioned that these houses are said to be in possession of accused Balkrishna Naik. In pursuance of this warrant the search of these houses was made on the same date. Accused Balkrishna Naik was not found in the house at the time of the search. He was not present when the search was taken. The houses were locked. The key of the lock was with accused Rajkishore Naik. He opened the lock for the search of the houses.
3. The prosecution case is that 600 grams of opium was found in house No. 17. It was seized as per seizure memo Ex. P-2 in the presence of two witnesses S.D. Garg {P.W. 2) and Harish Kumar (P.W. 8), and other officers of the Central Excise Department. The statement of accused Rajkishore Naik was recorded under Section 53A of the Act by S. K. Shukla (P.W. 3), the Superintendent, Central Excise, Katni and that is Ex. P-4. According to this statement the house was in actual possession of accused Balkrishna Naik. The samples of the opium were taken and sealed. These were sent to the Assistant Chemical Examiner, Neemuch and as per report Ex. P-7 the commodity which was seized was found to be opium. The information relating to search and seizure was sent to the Assistant Commissioner as per Ex. P-5 in compliance with Section 57 of the Act.
4. The accused persons pleaded not guilty. The defence of accused Rajkishore Naik was that he had given possession of the house 4-5 months before the search to accused Balkrishna Naik for doing the work of insurance business. The defence of accused Balkrishna Naik was that he was never in possession of this house.
5. The trial Court after appreciation of the evidence on record held that accused Raj kishore Naik was not in possession of the house and therefore he could not be held to be in possession of the opium. He was acquitted of the charge. The trial Court further held that accused Balkrishna Naik was in possession of the house and, therefore, the , possession of opium has also been attributed to him. On that finding he has been convicted and sentenced as stated at the outset.
6. In this appeal it has been argued that it is not proved by the prosecution beyond reasonable doubt that appellant Balkrishna Naik was in possession of the house or the opium found therein. This is the only point which arises for determination in this appeal.
7. Sharad Kumar Tripathi (P.W. 1), Inspector, Central Excise, has deposed that he reached the house Nos. 17 and 18 in Sudhar Nyas Colony, Katni with the other officers of the Department and called the two witnesses named above. The houses were locked. Accused Rajkishore was called. He was having the key and he opened the lock. On search of house No. 17 opium was found in a polythene bag on a rack. It was seized as per seizure memo Ex. P-2. The weight of the opium was 600 grams. The samples of the opium were taken out and sealed. In cross-examination he has stated that accused Rajkishore Naik had told him that his brother-in-law Balkrishna Naik lives in this house. He has admitted that in house No. 17 there was no document or any other material to establish that this house was in possession of accused Balkrishna Naik. The other officers of the Department have no personal knowledge that House No. 17 was in occupation of the appellant.
8. S. D. Garg (P.W. 2) has deposed that the commodity said to be opium was found in house No. 17. In examination-in-chief he does not say who was in possession of this house. In cross-examination by the counsel for accused Raj kishore Naik he has stated that accused Balkrishna Naik was living in this house. He was thereafter cross-examined by the counsel for the appellant. Then he stated that he had seen accused Rajkishore Naik carrying on some construetion work four months before the search. He has further stated that this house is behind his own house and he does not ordinarily go to that side. On being further questioned he has stated that he does not know who was living in this house after its construction. He saw accused Balkrishna Naik sometime coming from and going into this house.
9. Harish Kumar (P.W. 8) has deposed that houses No. 17 and 18 are of the accused persons. His statement in examination-in-chief is very vague. He does not specifically say who was in possession of this house. In cross-examination by the counsel for accused Rajkishore Naik he has stated that he lived in this house for two months after its construction and it remained vacant for the next two months and then accused Balkrishna Naik started living in this house. These are the answers to the leading questions which were put to him. In cross-examination by the counsel for the appellant he has stated that Balkrishna Naik was living in this house as a tenant. That is not the version of even Rajkishore Naik.
10. It is borne out from the evidence of the two witnesses discussed above that they do not say in examination-in-chief who was in actual possession of the house. It is obvious that the interest of the two accused persons was conflicting. One was trying to throw the blame on the other and the cross-examination was done with that end in view. It is difficult to hold on the basis of such evidence that appellant Balkrishna Naik was in exclusive possession of the house when the search was taken. In the complaint filed by the Inspector, Central Excise before the Special Court it has been mentioned that the house was “in the ownership and possession of accused Rajkishore Naik”. It is not clearly stated in the complaint that the house was in possession of appellant Balkrishna Naik. There is an order of Shri S. K. Shukla (P.W. 3), Superintendent, Customs and Central Excise, Katni with the complaint by which he has authorised the Inspector to arrest Rajkishore “who is the owner of the house and is also in possession of the same”. Thus, it was the prosecution case itself that the house from which opium was recovered was in possession of Rajkishore Naik. In the opinion of this Court the evidence adduced by the prosecution does not establish that the house was in exclusive possession of the appellant and, therefore, the possession of the opium found therein cannot be ascribed to him.
11. The trial Court has relied upon the < statement Ex. P-4 of accused Rajkishore Naik, recorded by the Superintendent, Central Excise, Katni under Section 53A of the Act as ‘evidence’ against the appellant. It is difficult to uphold this view of the trial Court. An officer of the Central Excise and Customs exercising his powers of search and seizure under Section 42 of the Act is not a “police officer” within the meaning of Section 25 of the Evidence Act and, therefore, the statement of the accused recorded by him can (not) (sic) be admitted in evidence (Rajkumar v. Union of India (1990) 1 JT (SC) 503 : 1991 Cri LJ 197. But the statement recorded under Section 53A of the Act shall be relevant for the purpose of proving, in any prosecution for an offence under the Act, the truth of the facts which it contains (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. In the present case Rajkishore Naik is available and he was not examined as a witness. Therefore, neither clause (a) nor clause (b) of Section 53A(1) of the Act is attracted. The trial Court has wrongly relied upon it.
12. The statement Ex. P-4 is said to be confession of co-accused Rajkishore Naik. A reading of this statement shows that it is self-exculpatory. He is throwing the entire blame on appellant Balkrishna Naik for the presence of opium in the house. The maker of the statement does not Implicate himself substantially to the same extent as the other co-accused. It is, therefore, not covered by Section 30 of the Evidence Act. It cannot be treated as “evidence” against the co-accused. Where a person pleads innocence and throws the blame on the co-accused that statement cannot be used against the co-accused. Where one accused seeks to clear himself at the expense of the other accused jointly tried with him his statement cannot be taken into consideration against the co-accused. The statement must amount to a distinct confession of his own guilt. Self-exculpatory statement of an accused is inadmissible against the co-accused. Statements however criminating made in self-exculpation or in mitigation of guilt are self-serving statements and are not admissible.
13. It has been held by the Supreme Court in Balbir Singh v. State of Punjab AIR 1957 SC 216 : 1957 Cri LJ 481 that the confession of one accused can be used against others if the confession implicates the maker substantially to the same extent as the other co-accused person against whom it is sought to be taken into consideration. Where on reading the confession as a whole, it appears that he was really trying to throw the main blame on the other accused, the confession cannot be used at all.
14. Even assuming that the statement Ex. P-4 of Rajkishore Naik is admissible against co-accused Balkrishna Naik that is not ‘evidence’ within the meaning of Section 3 of the Evidence Act. It can only be taken into consideration along with other evidence. Confession of co-accused cannot be treated as substantive evidence. In dealing with a case against the accused person, the Court cannot start with the confession of a co-accused. It must begin with the other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of such evidence, then it. is permissible to turn up to the confession in order to get assurance to the conclusion of guilt which the judicial mind is about to reach on the said evidence.
15. The leading case on the point is the decision of the Privy Council in Bhuboni Sahu v. The King AIR 1949 PC 257 : 1949 (50) Cri LJ 872 in which Sir John Beaumont 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 Evidence Act. It is not required to be given on oath, nor in. the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The Supreme Court has taken the same view in Haricharan v. State of Bihar AIR 1964 SC 1184 : 1964 (2) Cri LJ 344 and recently in Bhana v. Assistant Collector AIR 1998 SC 1487 and State v. Nalini AIR 1999 SC 2640 : 1999 Cri LJ 3124. In view of this legal position the statement Ex. P-4 cannot be the basis for holding that the appellant was in possession of the house. The other evidence which has been discussed above is not definite and satisfactory on this point. The appellant was riot in the house when the search was taken. The key of the house was admittedly with accused Rajkishore Naik and therefore, he was having full access to the house. It cannot be held with certainty that appellant Balkrishna Naik kept the opium in that house. There is no reliable evidence on the point that he was living in that house. The statement of co-accused under Section 313, Cr.P.C. and the defence evidence adduced by him cannot be used as incriminating material against the appellant. Sangita Naik (D.W. 4) is wife of the appellant. She has deposed that she is living with her husband for the last five years in house No. 24, Maharajpur Housing Board Colony, Jabalpur. That evidence has been dealt with by the trial Court but it has not been rejected. She has produced the documents to show that her children are studying at Jabalpur. It is not proved beyond reasonable doubt that the House No. 17 at Katni was in possession of the appellant when the search was conducted.
16. The appeal is allowed. The conviction and sentence are set aside and appellant Balkrishna Naik is acquitted of the charge under Section 18 of the Act.
