IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 19.03.2010 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal No.707 of 2006 1.Mohammed Jameen Mohamed Munawar 2.Abdeen Mohamed Gazali 3.M.H.M.Sabry alias Shraf ..Appellants/accused Versus Intelligence Officer NCB South Zone Chennai ..Respondent/complainant Criminal Appeal filed against the conviction and sentence imposed by the learned Principal Special Judge, NDPS Act cases, Chennai in C.C.No.309 of 2002 dated 06.10.2005. For Appellants : Mr.B.Kumar Senior counsel for Mr.T.S.Sasikumar For Respondent : Mr.R.Dhanapal Raj Special Public Prosecutor for NCB Cases JUDGMENT
The accused 1 to 3 in C.C.No.309 of 2002 on the file of the Principal Special Judge, (NDPS Act Cases), Chennai, stand convicted under Sections 8(c) r/w 21(c), 28 and 29 of the NDPS Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh in default to undergo rigorous imprisonment for one year for each count under Sections 21(c), 28 and 29 of NDPS Act.
2. The case of the prosecution is as follows:
On 09.04.2002 at 6.30p.m., P.W.1, Intelligence Officer, NCB, Chennai received an information over phone that one Abdeen Mohamed Gazali is indulging in drug trafficking and he is to leave Chennai by flight bound for columbu on 09.04.202 at 9.00p.m., and he had concealed about 5 kgs heroine in the falls bottom of his suitcase. P.W.1 recorded the said information in Ex.P.1 and submitted the report to his Assistant Director and obtained his signature. At about 7.15p.m., P.W.1 along with the Assistant Director P.W.7 and others went to the airport and reached the place at about 7.45p.m. He called P.W.8 Sivaraman and another Varadarajan, Security Officers and introduced himself showing his identity card and asked them to stand as witnesses. They went to the place where the travellers were seated. On identifying the second accused Abdeen Mohamed Gazali, P.W.1 showed his identify card and informed about the information by him and also informed that he is to be searched and also about his right to be searched before the learned Judicial Magistrate or gazetted officer as per Section 50(i) of the NDPS Act. The second accused opted to be searched by P.W.1 himself. The second accused informed that he had brought one big size suitcase and one green colour rexin bag and he was carrying the rexin bag in his hand. He handed over the claim tag No.UL 725051 for the suitcase. P.W.1 and others went along with the accused and got the luggage from the airport officers. The number in the tag claim was verified and confirmed. The second accused also identified the suit case. P.W.1 enquired the second accused whether he was in possession of any narcotic drug. The second accused opened the suit case and removed the clothes which were kept inside the bag and opened the falls bottom in the suit case and took out a polythene bag and handed over to P.W.1 saying that the packet contained 5 kgs of heroine. P.W.1 seized the contraband weighing 5.010 kilograms. He took two samples each weighing 5 grams and those packets were also sealed. The second accused was also searched and he was having the air ticket in the name of Abdeen and he was also having boarding pass. He was also having Indian currency of Rs.440/-. All the properties were seized. The mahazar was prepared in Ex.P.2 and it was completed at 11.00p.m., and in the said mahazar, two witnesses who were Security Officers, Assistant Director and the second accused signed.
3. P.W.7, the other Intelligence Officer issued summon Ex.P.37 to the second accused and the second accused also voluntarily agreed to accompany him to the NCB Office. The seized contraband and the documents prepared were brought to the NCB Office and the second accused also accompanied.
4. On 10.04.2002, P.W.7 recorded the voluntary statement of the second accused Ex.P.38 under Section 67 of NDPS Act. The second accused was arrested at 12.00noon on that day. P.W.1 sent a special report Ex.P.9 to his Assistant Director. P.W.2 produced the second accused before the learned Magistrate for judicial custody and also handed over the seized contraband to the NCB godown keeper.
5. P.W.5 the chemical analyst on receiving the sample packets, analyst substance and gave a report Ex.30 stating that the samples contained Di-Acetyl-Morphine known as heroine. Ex.P.30 was countersigned by P.W.4.
6. On 14.09.2002, P.W.2 Intelligence Officer received an information about the accused 1 and 3 who were also wanted in this case, that at about 10.45p.m, that accused 1 and 3 were likely to come to Anna International Airport on 15.09.2002 at 0.00hours and recorded the information in Ex.P.20 and accompanied with P.W.1 and others went to Chennai International Airport and reached there at about 00.30 hours. P.W.2 and others identified the accused 1 and 3 on the basis of the identification particulars given by the second accused in his statement. P.W.2 intercepted the accused 1 and 3 and issued summons Ex.P.21 to the first accused and P.W.1 issued summon Ex.P.10 to the third accused. P.W.2 along with accused 1 and 3 came to the NCB Office at about 3.30a.m. On 15.09.2009 at about 9.00a.m., the first accused gave a statement in Ex.P.22 in his own handwriting before P.W.2. He also handed over the duplicate passport Ex.P.24. The first accused was arrested at about 11.00a.m. The third accused also gave his voluntary statement Ex.P.11 before P.W.1. The statement was recorded by P.W.1. P.W.1 arrested the third accused at about 11.00a.m. He also submitted a special report Ex.P.13 under Section 57 of the NDPS Act to the Superintendent. P.W.3 produced the accused 1 and 3 before the learned Judicial Magistrate for remand. P.W.6 Intelligence Officer of NCB issued summons to P.W.8 Sivaraman and another witness Varadharajan and recorded their statements in Exs.P.32 and P.33 respectively.
7. P.W.6, after completing the investigation, laid the final report against the accused 1 and 3 and also against the absconding accused Siddique and Vinod under Sections 8(c) r/w 21,23,28 and 29 of NDPS Act.
8. The prosecution in order to establish its case examined P.W.s.1 to 8, marked Exs.P.1 to 42 and produced 5 material objects. When the accused were questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances available against them, they denied their complicity. The first accused submitted that on 09.04.2002, he was in Sri Lanka, on 06.06.2002 he came to India in connection with the marriage of his daughter and for taking treatment. He stayed at Chennai till 15.09.2002 for the arrival of his wife. When he went to the Airport to receive his wife on 15.09.2002, he was intercepted there. A false case has been filed against him. The second accused would submit that he came to India on 09.04.2002 for the first time. The contraband was kept in the suitcase which was brought from elsewhere. He had no connection with the suitcase which contained the contraband. His signature was obtained in a statement recorded by the officers of NCB office. He did not know the contents of that statement. A false case has been foisted against him. The third accused would submit that he was residing at Pollichalur for the past six years. He had no connection with the contraband seized in this case. He was taken from his house and his signature was obtained in 5 or 6 papers written by NCB Officers. He did not know the contents of the same. A false case has been filed against him. The trial Court after analysing the evidence, convicted and sentenced all the accused as stated above.
9. Mr.B.Kumar, learned Senior Counsel appearing on behalf of the first and third accused submitted that they were not in possession of any contraband, but they have been falsely implicated on the basis of the confessional statement said to have been recorded under Section 67 of NDPS Act in Exs.P.22 and P.11 respectively. Exs.P.22 and P.11 being retracted, they remain uncorroborated by any other materials. The learned Senior Counsel further submitted that the statements Exs.P.22 and P.11 are not the voluntary statements since even according to P.Ws.1 and 2, the accused 1 and 3 were taken from the airport at 2.00a.m., on 15.09.2002 and they were produced before the learned Magistrate only on 16.09.2002 at about 11.30a.m, which is more than 24 hours and further though according to P.Ws.1 and 2 summons were given to A.1 and A.3 for their appearance before the NCB Office, they were immediately taken to the NCB office by the officers and the statements are said to have been recorded only at 9.00a.m. It is only to coerce the accused, they have been taken to NCB office forcibly and statements were obtained. Though certain features are mentioned in the statement, they have not been verified subsequently by way of investigation to strengthen the voluntariness of the statement. On the other hand, the statements are contradictory to each other. As per Ex.P.11, the statement of the third accused, on 08.04.2002, the first accused was seen by him in Madras near Pollichalur. But as per Ex.P.22, the statement of the first accused he had gone to Srilanka even on 07.04.2002.
10. The learned Senior Counsel further submitted that merely because statement is lengthy and it contains so many particulars, it should not be taken as indication of voluntariness of the accused and features which are not connected to the case mentioned in the statement being not verified, no reliance should be placed on those statements.
11. The learned Senior Counsel also relied on the following decisions to substantiate his contentions:
a) AIR 1968 SC 832 (Haroon Haji Abdulla vs. State of Maharashtra)
b) (2007)8 SCC 254 (Mohtesham Mohd. Ismail vs. Special Director, Enforcement Directorate and another)
c) AIR 1954 SC 4 (Muthusamy vs. State of Madras)
d) 2008(2) SCC(Cri.) 264 (Aloke Nath Dutta and Others vs. State of West Bengal)
e) (2008)3 MLJ (Cri.) 635 ( Noor Aga vs. State of Punjab and another)
f) 2009(2) Crimes 171 ( U.O.I vs. Bal Mukund and others)
g) AIR 1963 SC 1094 (Pyare Lal Bhargava v. State of Rajasthan):
h) AIR 1978 SC 1248 (Sankaraia vs. State of Rajasthan):
12. The learned counsel appearing for the second accused submitted that the accused is in jail nearly for the past 8 years and prayed for some leniency regarding sentence. The learned counsel further submitted that the accused is sentenced to pay a fine amount of Rs.1 lakh for each count, in total to pay fine amount of Rs.3 lakhs in default to undergo further three years rigorous imprisonment, but he is not in a position to pay the fine amount.
13. Per contra, Mr.R.Dhanapal Raj, learned Special Public Prosecutor for NCB Cases submitted that the possession of contraband with the second accused is established through the evidence of P.W.1 and P.W.2 and it is also corroborated by the evidence of mahazar witness P.W.8. The second accused also had given his voluntary statement recorded in Ex.P.38 which reveals the involvement of these two accused which was recorded five months earlier to the arrest of the first and third accused. The confession of the second accused is admissible against the accused 1 and 3 and further the accused 1 and 3 also gave their voluntary statements.
14. The Special Public Prosecutor further submitted that according to the prosecution, confessional statements were given by the accused voluntarily and the initial burden on the prosecution being discharged, the burden is shifted on the accused to prove that it was involuntary. The learned Special Public Prosecutor also relied on the decisions reported in (i) 1996 (8) ELT 258(S.C) (Naresh J Sukhawani Vs. Union of India) and (ii) 2002(3) Supreme 9 (Devendar Pal Singh vs. State NCT of Delhi and another).
15. Mr.B.Kumar, learned Senior Counsel appearing for the first and third accused/appellants submitted that the descriptions given about the Munawar and Shraf by the second accused are entirely different from the features of the accused 1 and 3. The name of the third accused is only Sabri and not Shraf.
16. This Court considered the submission made by all the parties and perused the records carefully.
17. As per the evidence of P.W.1, Intelligence Officer, NCB, Chennai, he received an information at 5.40p.m., on 09.04.2002, about the accused Abdeen Mohamed Gazali indulged in drug traffcking. On recording the information Ex.P.1, P.W.1 proceeded to the International Airport, Chennai, along with other officers and identified the second accused, Abdeen Mohamed Gazali at the security area. In the presence of P.W.8, Security Officer of Sri Lanka Airlines and one another person P.W.1 informed the second accused about their intention to search him and his belongings and also about his right to be searched either before the Judicial Magistrate or before the Gazetted Officer. The second accused declined the offer. The second accused was having one green colour rexsin bag as a hand-luggage and he was having a Tag No.UL 725051 for having checked already a suitcase. The concerned suitcase was retrieved from the Airlanka authorities. The second accused informed P.W.1 that he had concealed about 5 Kilograms of heroin in the suitcase and he opened a suitcase, removed clothes which were kept inside and then removing the falls bottom of the suitcase took out a polythene packet containing brown colour powder and he handed over it to the Intelligence Officer. The Intelligence Officer took out small quantity from the transparent polythene packet and tested with the field test kit, which answered positive for heroin. On weighment the packet contained 5.010 kilograms of heroin. Two samples weighing each 5 grams were also taken and those sample packets are all sealed. A detailed mahazar Ex.P.2 was prepared and it was signed by the independent witness P.W.8 and another. The mahazar was read over to the second accused, a copy was served to him and his signature was also obtained. P.W.7, other Intelligence Officer also issued summons to the second accused for enquiry. The second accused was brought to the NCB Office along with the seized properties. The evidence of P.W.1 established the facts about the seizure of contraband of heroin from the second accused. The samples which were taken from the seized contraband were sent for chemical analysis and they also analysed by P.W.4 and P.W.5 and Exs.P.30 test report also had been given by them stating that the sample answered the test for the presence of Di-Acetyl-Morphine (heroin) and the percentage of weight of Di-Acetyl-Morphine was 56.5%. The evidence of P.W.1 is also corroborated by the evidence of P.W.7, another Intelligence Officer who had accompanied P.W.1. P.W.8 independent witness also spoken about the search and seizure of the contraband from the second accused. The evidence of P.W.8 supports the evidence of P.W.1 and P.W.7. In the cross examination of P.W.8, nothing has been brought out to discredit his evidence.
18. The prosecution had established its case beyond reasonable doubt that the second accused was in possession of heroin of commercial quantity.
19. As per the evidence of P.W.7, after the contraband was seized from the second accused in the airport, summons under Section 67 of the NDPS Act was served to the second accused on the spot and he was directed to appear before the NCB Office. On 10.04.2002, the second accused gave statement before P.W.7, Intelligence Officer. P.W.7 recorded the statement given by the second accused in Tamil which is Ex.P.38, and it was read over to P.W.7 and his signature was also obtained. The statement given by the second accused revealed the involvement of two more persons by name Munawar and Shraf. The second accused has not retracted his statement at any earlier stage and denied only at the end of trial. He had stated that during the examination under Section 313 Cr.P.C., he was taken to the NCB Office and his signature was obtained in the statement written by the Officers and he did not know the contents of the statement. The second accused has not stated that he was ill-treated or threatened for getting his signature in the statement. Based on the statement of Ex.P.32, the Intelligence Officer were in search of the persons by name Munawar and Shraf. On 14.09.2002, P.W.2 the another Intelligence Officer received a message that two persons by name Mohamed Munawar and Shraf were to come to the airport on 15.09.2002 at about 02.00a.m. P.W.2 recorded the said information in Ex.P.20. P.W.2 along with P.W.1 and other officers went to the Chennai Airport at 00.30hours in the night and they were searching for those two persons and at about 2.00a.m., on seeing the accused 1 and 3 at the arrival hall of the airport intercepted and enquired them. P.W.2 gave summons to the first accused and P.W.1 gave summons to the third accused for the appearance before the NCB Office. They came to the NCB Office along with accused 1 and 3. According to P.W.2, the first accused gave voluntary statement Ex.P.22 on 15.09.2002 at 9.00a.m. As the third accused did not know to write Tamil his statement was recorded by P.W.1 and it was read over to him and his signature was obtained in Ex.P.11. In pursuance of the statement Ex.P.11 and P.22, no other incriminating material connected to this case was seized.
20. The point for consideration is “Whether accused 1 and 3 could be held liable on the basis of their confessional statement recorded from them or on the basis of the confessional statement recorded from the co accused?”
21. While the accused were questioned under Section 313 Cr.P.C, the first accused told that his statement and signatures were obtained on threat and the third accused stated that he did not know what was written in the statement and his signature was obtained.
22. It was brought to the notice of this Court by the learned Senior Counsel appearing for accused 1 and 3 that the accused retracted their confession statements even at the earliest stage.
23. On a perusal of records, this Court could see the two letters of the accused 1 and 3 sent to the Special Judge, Special Court for NDPS Act Cases, through the Superintendent for Central Prison received by the Court on 23.09.2002 which find place in the records. The letters sent by the accused 1 and 3 to the Court have not been marked as exhibits, but they have been tagged along with original statements recorded from the accused 1 to 3 under Section 313 Cr.P.C. In the original records, as per page number, the covering letter of the Superintendent, Central Prison is at Page-397, the letter of the first accused is at page-399, the covering letter of the Superintendent, Central Prison is at Page-401, the letter of the third accused to the Court is at Page-403. The first accused in his letter had retracted the statement given to the NCB Officers and stated his statement was obtained under coerce. The third accused also retracted his confessional statement and his statement was obtained by ill-treatment. Within one week from the date of arrest, the accused 1 and 3 have retracted their statements given to the NCB Officers. As far as accused 1 and 3 are concerned, there is no other material except their confessional statements.
24. This Court is now to consider “Whether the confession of the accused 1 and 3 being retracted at the earliest stage could they be relied upon and to what extent? This Court is also to consider further how far the confessional statement of the co-accused (A.2) could be used against accused 1 and 3.
25. The Honourable Supreme Court has held in the following decisions as follows:
a. AIR 1954 SC-4 (Muthuswamy vs. State of Madras):
“6.Now we wish to avoid laying down any hard and fast rules regarding the necessity of corroboration in the case of retracted confessions. But apart from any general rule of prudence, the circumstances indicated above are sufficient to require corroboration in this particular case.”
b. AIR 1963 SC 1094 (Pyare Lal Bhargava v. State of Rajasthan):
“7. The second argument also has no merits. A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars.
c. 1972 SCC(Cri) 198 (Bharat v. State of U.P.):
7. Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an afterthought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true. This was laid down by this Court in an earlier case reported in Subramania Goundan v. State of Madras. (1958 SCR 428)
d. AIR 1978 SC 1248 (Sankaraia vs. State of Rajasthan):
“49. Another circumstance which reinforces the conclusion about the confession being voluntary is that it was not retracted at the earliest opportunity. The confession was recorded on June 14, 1974. The trial of the accused commenced on January 10, 1975 when charges were framed and read over and explained to the appellant by the Sessions Judge. At the trial, he was defended by Shri Ganpat Ram, who, as already observed, was an experienced lawyer. The trial dragged on for several months, because witnesses were examined piece-meal on different dates. The prosecution evidence was closed on June 14,1975 and the accused was then examined under S.313 Cr.P.C. It was during such examination, the appellant for the first time retracted the confession and took up the plea that he had made it under duress of the police.”
e. 2002(3) Supreme 9 (Devendar Pal Singh vs. State NCT of Delhi and Another):
“7………It is to be noted further that the appellant’s so called retraction was long after he was taken into judicial custody. While he was taken to judicial custody on 24.03.1995 after about a month, he made a grievance about the statement having been forcibly obtained. This is clearly a case of afterthought. Since the confessional statement was voluntary, no corroboration for the purpose of its acceptance is necessary.
f. (2007) Current Criminal Reports 137 : (2006)13 SCC 210 (Francis Stanly vs. Intelligence Officer, Narcotic Control Bureau) :
“11. Learned counsel for the respondent relied upon a decision of this Court in M. Prabhulal v. Asst. Director, Directorate of Revenue Intelligence (2003)8 SCC 449 wherein it has been held that if the confessional statement is found to be voluntary and free from pressure, it can be accepted. This is no doubt true, but it all depends on the facts and circumstances of each case and no hard-and-fast rule can be laid down in this connection whether a particular alleged confessional statement should be accepted.
12. Learned counsel for the respondent then relied upon a decision of this Court in T. Thomson v. State of Kerala (2002) 9 SCC 618) wherein it was held that the confession in question was voluntary. In this connection we reiterate that it all depends on the facts and circumstances of each case, and no hard-and-fast rule can be laid down as to when a confession can be regarded as voluntary and when it should not.
13. In State (NCT of Delhi) v. Navjot Sandhu (vide (2005) 11 SCC 600 para 34) this Court observed:
A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances can such a conviction be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars.
14. It is true that in the present case the confession was made by the accused not before an ordinary police officer, but before an officer under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) who is an officer of the Department of Revenue Intelligence, and it is held by this Court in Raj Kumar Karwal v. Union of India7 that such a confession is not hit by Section 25 of the Evidence Act.
15. We are of the opinion that while it is true that a confession made before an officer of the Department of Revenue Intelligence under the NDPS Act may not be hit by Section 25 in view of the aforesaid decisions, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act. Hence the alleged confession made by the same appellant must be subjected to closer scrutiny than would otherwise be required.”
g. (2007) 8 SCC 254, at page 262(Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate):
“20. We may, however, notice that recently in Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram6 this Court has emphasised that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closer scrutiny. It is furthermore now well settled that the court must seek corroboration of the purported confession from independent sources.”
h. (2007) 12 SCC 230, at page 269 ( Aloke Nath Dutta v. State of W.B.,):
“106. Judicial confession must be recorded in strict compliance with the provisions of Section 164 of the Code of Criminal Procedure. While doing so, the court shall not go by the black letter of law as contained in the aforementioned provision; but must make further probe so as to satisfy itself that the confession is truly voluntary and had not been by reason of any inducement, threat or torture.
107. The fact that the accused was produced from the police custody is accepted. But it was considered in a routine manner. The learned Magistrate in his evidence could not even state as to whether the appellant had any injury on his person or whether there had been any tainted marks therefor.
108. The courts while applying the law must give due regard to its past experience. The past experience of the courts as also the decisions rendered by the superior courts should be taken as a wholesome guide. We must remind ourselves that despite the fact that procedural safeguards contained in Section 164 CrPC may be satisfied, the courts must look for truthfulness and voluntariness thereof. It must, however, be remembered that it may be retracted subsequently. The court must, thus, take adequate precaution. Affirmative indication of external pressure will render the retracted confession nugatory in effect. The court must play a proactive role in unearthing objective evidence forming the backdrop of retraction and later the examination of such evidence of retraction. However in cases where none exists, the court must give the benefit of doubt to the accused. Where there is no objective material available for verifying the conditions in which the confession was retracted, the spirit of Section 24 of the Evidence Act (irrelevance of confession caused by inducement) may be extended to retracted confession. An inverse presumption must be drawn from absence of materials.
109. In a case of retracted confession, the courts while arriving at a finding of guilt would not ordinarily rely solely thereupon and would look forward for corroboration of material particulars. Such corroboration must not be referable in nature. Such corroboration must be independent and conclusive in nature.
i. (2008) 4 SCC 668 : 2008 (1) Crimes 154 (Kanhaiyalal v. Union of India) :
“38. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case (vide (1990) 2 SCC 409) 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 Sections 24 to 27 of the Evidence Act.
39. There is nothing on record to suggest that the appellant was compelled under threat to make the statement after he had been placed under arrest which renders such statement inadmissible and not capable of being relied upon in order to convict him. On the other hand, there is the evidence of PW 9 upon which the High Court has relied in convicting the appellant. It may once again be mentioned that no question in cross-examination had been put to PW 9 in this regard and the version of the said witness must be accepted as corroborative of the statement made by the accused.
40. It may also be recalled that though an application was made for retracting the confession made by the appellant, neither was any order passed on the said application nor was the same proved during the trial so as to water down the evidentiary value of the said statement. On the other hand, in the absence of such evidence on record, the High Court had no option but to proceed on the basis of the confession as made by the appellant under Section 67 of the NDPS Act. 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 Sections 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 solely on the basis of a confession made under Section 67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant.”
j.2009(2) Crimes 171(SC) (Union of India vs. Bal Mukund and Others)
“27.Exhibits 20 and 21 categorically show that they were interrogated. If they were interrogated while they were in custody, it can not be said that they had made a voluntary statement laid down under Section 67 of the Act. We, in the backdrop of the aforementioned events, find it difficult to accept that such statements had been made by them although they had not been put under arrest. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken.
28.This Court in D.K.Basu v. State of West Bengal (1997-1-SCC 416) laid down the law that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. This rule was also invoked by a Constitution Bench of this Court in State of Punjab v. Baldev Singh (1999)3 SCC 977), wherein it was held:
“28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statue are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right “that if he requires” to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As page 2956 already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirement of Section 50 and an order or acquittal is recorded on that ground, the prosecution must think itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.”
29. The court while weighing the evidentiary value of such a statement cannot lose sight of ground realities. Circumstances attendant to making of such statements should, in our considered opinion, be taken into consideration.”
26. From the decisions of the Honourable Supreme Court cited supra, the following legal principles could be culled out:-
(i)If the statement of the accused is recorded under Section 67 of the NDPS Act which is incriminating against himself amounting to confessional statement and if held to be voluntary in nature, conviction can be made solely based upon such statement even without any corroboration.
(ii) Even if such confessional statement is retracted, if it is proved by the prosecution beyond reasonable doubt that the confession was voluntary in nature, conviction can be based solely upon such statement. The burden is on the accused to prove the statement was obtained by threat, duress or promise. If reasonable doubt is created by the accused then the burden is shifted to the prosecution to prove beyond doubt that the statement was given voluntarily.
(iii)If the confessional statement of the accused under Section 67 of the NDPS Act is retracted, within a reasonable time at the earliest opportunity, then to place reliance on such confessional statement, the rule of prudence requires the Court to seek for corroboration on general particulars.
27. In this particular case, the statements recorded under 67 of the NDPS Act from the accused 1 and 3 have been retracted by them, within a period of one week. Further it is known to the Intelligence Officers that they are the accused in the case as per the statement of the second accused. Even after intercepting them in the airport, according to the Intelligence Officer, they were not taken to the custody, but only summoned. In the summons issued to the accused 1 and 3 in Ex.P.3 and Ex.P.21, it is mentioned that Intelligence Officer considered it necessary to issue such summons to them for giving evidence.
28. As accused 1 and 3 were already implicated as an accused in this case by the Intelligence Officer, they should not have been compelled to give any statement. Therefore, in the facts and circumstances of the case, this Court is of the opinion, the confession statements of the accused 1 and 3 recorded under Section 67 of the NDPS Act should not be relied upon without any corroboration on material particulars.
29. The next question is “Under Section 30 of the Indian Evidence Act, “whether the confessional statement of second accused could be relied upon to convict the accused 1 and 3 by taking it as corroborative material?.”
30. The Honourable Supreme Court has held in the following decisions as follows:
a. Haroon Haji Abdulla v. State of Maharashtra,(1968) 2 SCR 641 :
“6. This leads us to the consideration of the statements of Bengali and Noor Mohammad which were received in corroboration of Kashinaths testimony. These statements contain admission constituting the guilt of the makers under the charged sections. They also mention the name of Haroon, among others, as being concerned in the smuggling and in much the same way as does the accomplice. The question is, can they be used to corroborate him? These statements are not confessions recorded by a Magistrate under Section 164 of the Code of Criminal Procedure but are statements made in answer to a notice under Section 171-A of the Sea Customs Act. As they are not made subject to the safeguards under which confessions are recorded by Magistrates they must be specially scrutinised to finding out if they were made under threat or promise from some one in authority. If after such scrutiny they are considered to be voluntary, they may be received against the maker and in the same way as confessions are received, also against a co-accused jointly tried with him. Section 30 of the Evidence Act does not limit itself to confessions made to Magistrates, nor do the earlier sections do so, and hence there is no bar to its proper application to the statements such as we have here.”
b. (1964) 6 SCR 623) Haricharan Kurmi v. State of Bihar
“17. ………….. As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence………”
c. 1996(83) ELT 258 (SC):1995 Supp (4) SCC 663 (Naresh J. Sukhawani v. Union of India):
“4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr Dudanis statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine.”
d. (2008)2 SCC (Cri) 264 (Aloke Nath Dutta and Others):
“139. The expression “the court may take into consideration such confession” is significant. It signifies that such confession by the maker as against the co-accused himself should be treated as a piece of corroborative evidence. In absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a co-accused, be it extra-judicial confession or a judicial confession and least of all on the basis of retracted confession.”
30. Differing the view taken in the judgment reported in Naresh J. Sukhawani vs. Union of India (cited supra), the Honourable Supreme Court in the decision reported in 2009(2) Crimes 171 (UOI vs. Bal Mukund and others) has held as follows:
“22. No legal principle has been laid down therein. No reason has been assigned in support of the conclusions arrived at. If a statement made by an accused while responding to a summons issued to him for obtaining information can be applied against a co accused, Section 30 of the Evidence Act being not applicable, we have not been shown as to under which other provision thereof, such a confession would be admissible for making the statement of a co-accused. If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. If such a legal principle can be culled out, the logical corollary thereof would be that the co-accused would be entitled to cross examine the accused as such a statement made by him would be prejudicial to his interest.”
31. Section 30 of the Indian Evidence Act is not specific about confession given before court or before authority or before any individual. Section 30 of the Indian Evidence Act is as follows:
“30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.
When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession.
[Explanation. Offence, as used in this section, includes the abetment of, or attempt to commit the offence.]”
32. The earlier decisions of the Apex Court did not make any separate distinction but only made applicable Section 30 of Indian Evidence Act to the confessions given by co-accused before the authorities. Further it is observed by the Honourable Supreme Court in the decision cited supra that “If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Indian Evidence Act and not otherwise. Why confessional statement given to the Intelligence Officer is not coming under the category of ‘otherwise’ is not made clear.
33. As per the Judgment reported in 1995 Supp (4) SCC 663 (Naresh J. Sukhawani v. Union of India) consisting of three judges, Section 30 of Indian Evidence Act is applicable to statements recorded under Section 108 of the Customs Act. The Judgment reported in (1997) 3 SCC 721 (K.I.Pavunny vs. Asst. Collector (HQ) Central Excise Collectorate, Cochin, consisting of three judges also do not exclude the applicability of Section 30 of Evidence Act for the statement recorded under Customs Act.
34. Anyhow, in view of the latest decision of the Apex Court reported in 2009(2) Crimes 171 (Union of India vs. Bal Mukund and Others), this court is now unable to use the confessional statement of the second accused against the accused No.1 and 3.
35. In the result, the criminal appeal in respect of accused 1 and 3/appellant 1 and 3 is allowed and the conviction and sentence imposed on the accused 1 and 3 are set aside. The accused 1 and 3 are directed to be released forthwith, if they are not required in any other case.
36. The Criminal Appeal in respect of the 2nd accused is partly allowed. The conviction and sentence imposed on him under Section 29 of NDPS Act is set aside. The conviction under Section 8(c) r/w 21 and under Section 28 of NDPS Act is confirmed and the sentence of imprisonment and fine amount imposed by the trial Court is also confirmed, but the default sentence of imprisonment for the non-payment of fine is reduced from one year rigorous imprisonment to two months rigorous imprisonment.
19.03.2010
Index:yes/no
Internet:yes/no
ksr
To
1.The Principal Special Judge,
NDPS Act Cases, chennai
2.The Intelligence Officer
NCB South Zone
Chennai.
T. SUDANTHIRAM, J.
ksr
Criminal Appeal Nos.707 of 2006
19.03.2010