By TIOL News Service

NEW DELHI, JULY 31, 2018: IN a NDPS case, the appellant was convicted along with two others by the trial court under Section 21(c) read with Section 29 of the NDPS Act and was sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs.1 lakh, in default whereof to undergo further rigorous imprisonment for three years.

In the case of the appellant, the High Court, in the matter of Criminal Appeal filed, noted that the appellant was specifically named by co-accused Raj Kumar @ Raju and Surinder Pal Singh in their statements and although apart from such statements nothing was produced on record to indicate the involvement of the appellant, the High Court further 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 not come within the definition of police officers."

The appellant has challenged this order before the Supreme Court.

It is submitted that apart from the so called statements of co-accused there was nothing against the appellant and that he was neither arrested at the site nor was the contraband material in any way associated with him; that the call data reports also did not indicate that around the time when co-accused were apprehended, the appellant was in touch with either of them.

In Kanhaiyalal v. Union of India - 2008-TIOL-06-SC-NDPS it was held that a statement made u/s 67 of the NDPS Act can be used as a confession against the person making it whilein Tofan Singh v. State of Tamil Nadu - 2013-TIOL-51-SC-NDPS (both two-judges Bench) it was viewed that the matter required reconsideration and therefore, directed that the matter be placed before a larger bench.

Adverting to the aforesaid judgments, the Supreme Court observed that the issue whether statement recorded under Section 67 of the 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.

The Apex Court further observed that unlike Section 15 of Terrorist and Disruptive Activities Act, 1987 (similarly, section 18 of the Maharashtra Control of Organised 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 Supreme Court also referred to the decision in Kashmira Singh v. State of Madhya Pradesh (1952) SCR 5 delivered in matters of general application of a confession of a co-accused as against other accused and as approved by a Constitution Bench in Hari Charan Kurmi and Jogia Hajam v. State of Bihar (1964) 6 SCR 623 at 631-633) and wherein it was observed -

"…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 approval."

The Supreme Court, therefore, observed that the law so laid down has always been followed except in cases [ State vs. Nalini (1999) 5 SCC 2 53] where there is a specific provision in law making such confession of a co-accused admissible against another accused.

The Supreme Court, therefore, concluded -

"14. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece 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…"

The orders of conviction and sentence are set aside and the appellant is acquitted.

(See 2018-TIOL-307-SC-NDPS)