IMPORTANT POINT
State of accused recorded u/s 67 NDPS Act by officials of Narcotic Control Bureau would not be admissible when proved to have been obtained under duress.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985-Section 67-Recovery of 2.41 kg of heroin from a cloth bag which accused father was carrying and co-accused son was also present there-Conviction by trial Court-High Court set aside conviction holding non compliance of provisions of Sections 50 and 57 of the Act and a finding that statement of accused were obtained under coercion and bodily injury-State appeal-High Court finding that statement of accused were obtained under duress suffered no illegality-Medical report and evidence of doctor examined in defence showed that accused father (since deceased) had suffered fracture of 10th rib-Only role of other accused was to take his father on his scooter to the place where they were allegedly arrested-No material that this accused had knowledge if cloth bundle carried by his father contained contraband-Conscious possession of contraband by respondent accused was not established.
Held : It is to be noted that even though these accused persons were arrested on 24.9.1994, they were produced before the court only on 27.9.1994 on which date both the accused submitted before the court that they had suffered injuries at the hands of the investigating agency and it is under such physical threat their statements were recorded under section 67 of the Act. The said court had directed a medical examination of these accused on that day itself. The medical report and the evidence of DWs.1 and 2, the doctors who examined them, clearly shows that these accused had suffered injuries and Murlidhar Soni had actually suffered a fracture of the 10th left rib. The defence of the prosecution that these injuries might have been suffered by an accidental fall of the accused, cannot be accepted, thus, we are in agreement with the finding of the High Court that the statements of these accused persons have been obtained by the prosecuting agency under duress. It is also to be noted that even according to the prosecution case so far as this respondent is concerned, his only role in regard to the contraband was to take his father on his scooter to the place where they were allegedly arrested. The bundle in question which contained the contraband was carried by Murlidhar Soni and there is no material whatsoever to show that the present respondent had the knowledge that the bundle contained any contraband. In our opinion since the prosecution has not placed any material to show the conscious possession of the contraband by the respondent herein and since Murlidhar Soni is dead, we think the contentions advanced on behalf of the respondent as to the possession of the contraband by the respondent has to be accepted. (Para 9)

JUDGMENT

Santosh Hegde, J.-The Narcotic Control Bureau, Jodhpur has preferred this appeal against the judgment of the High Court of Judicature for Rajasthan at Jodhpur by which judgment the High Court allowed the appeal of the respondent and his father filed against the judgment of the Special Judge, Narcotic Drugs and Psychotropic Substances Court, Jodhpur in Sessions Case No. 155/94 whereby the trial court had convicted the appellant and his father of an offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) and sentenced them to undergo 10 years RI and to pay a fine of Rs. 1 lakh. Brief facts necessary for the disposal of this appeal are as follows :

2. On the basis of certain confidential information received by the officers of the department on 23.9.1994 a raiding party was organised under the supervision of the Assistant Director of the Bureau who incidentally was a Gazetted Officer. Said team saw the respondent and his father Murlidhar Soni at about 9 p.m. on that day standing near the Manthan Cinema at Pali at which point of time the accused Murlidhar Soni (since dead) was carrying a cloth bundle. The raiding party then went to these 2 accused persons and identified themselves and expressed their desire to search the bag carried by Murlidhar Soni. The two accused persons were told that they have the right to be searched in front of a Gazetted Officer or a Magistrate. Thereupon the said persons expressed their desire to be searched by a Gazetted Officer and the Assistant Director, Narcotics Control Bureau being a Gazetted Officer conducted the search of the cloth bag from which 2.41 kg. of heroin was recovered. After taking the necessary samples the contraband goods were seized in front of witnesses and sealed and the said 2 persons were arrested. During the course of investigation it came to the knowledge of the investigating authority that there were 3 other persons involved in the purchase and sale of narcotics from the respondent herein and his father hence they were also arrested and charged for the offences as stated above.

3. The trial court came to the conclusion that the prosecution had established its charges against the respondent and his father Murlidhar Soni and convicted them accordingly while it found the prosecution has failed to establish charges against other accused persons hence acquitted them.

4. Said convicted accused persons as stated above preferred an appeal before the High Court which came to be decided by the impugned judgment, allowing the said appeal and setting aside the conviction and sentence imposed on the appellants therein.

5. Very many questions involving the application of sections 42, 43, 50 and 57 of the NDPS Act were urged before the High Court and the High Court in the course of the judgment held on the facts of the case section 43 of the Act was applicable since the recovery in question was made in a public place. It also came to the conclusion there has been violation of various provisions of the Act like non-recording of the information received in advance, non-compliance of section 57 of the NDPS Act in not reporting the arrest of the accused persons. It also came to the conclusion though the accused persons were informed of their legal right of being searched by a Gazetted Officer or a Magistrate as per their desire they ought to have been taken to the nearest Gazetted Officer to be searched and the search made by the Assistant Director who himself was a Gazetted Officer was contrary to the provisions of section 50 of the Act since he was a member of the raiding party. After recording its finding in regard to the non-compliance of the statutory provisions of the NDPS Act the High Court also came to the conclusion that there was material on record to show that the statements of these accused were obtained under coercion and bodily injury which itself creates serious doubt as to the prosecution case.

6. Mr. P.P. Malhotra, lear

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2004 Supreme(SC) 587

IMPORTANT POINTState of accused recorded u/s 67 NDPS Act by officials of Narcotic Control Bureau would not be admissible when proved to have been obtained under duress.

Cases Referred (7)

IMPORTANT POINT
State of accused recorded u/s 67 NDPS Act by officials of Narcotic Control Bureau would not be admissible when proved to have been obtained under duress.