1. Appeals from conviction for offences under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act. (Para 1 , 2 )
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2000 Supreme(SC) 1630
SUPREME COURT OF INDIA
K.T.Thomas : R.P.Sethi
A.K.Mehaboob: P.K.Naushad
Versus
Intelligence Officer, Narcotics Control Bureau
Case No. : 980 of 1998
Date of Decision : 10/10/00
A statement under Section 67 of the NDPS Act is reliable unless coercion is proven. However, conviction for conspiracy or abetment requires inculpatory evidence; a mere intent to purchase without recovery of contraband or consideration money is insufficient to sustain a conviction.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21, 29 and 67 - Conviction based on statement under Section 67 - Retraction of statement - Where there is nothing to indicate that a statement was elicited by coercion, threat or force, and the accused failed to raise any grievance of maltreatment before the Magistrate immediately after arrest, the retracted confession is held reliable - Contradictory stands taken by the accused regarding the reasons for signing the statement further weaken the claim of coercion. (Paras 3, 5)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 42 and 57 - Compliance - Recording information in personal and official diaries and submitting a report to superior officers demonstrates that the officer acted in conformity with the statutory requirements of the Act. (Para 6)
(C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21 and 29 - Conspiracy and Abetment - A statement indicating only that the accused was informed that narcotics could be supplied and had gone to meet another accused in response is not sufficiently inculpatory to prove conspiracy or abetment, especially when no contraband was recovered from the accused and no consideration money was found in their possession. (Paras 8, 9)
Facts of the case:
Three persons were charged under Sections 21 and 29 of the Act after a raid led to the recovery of brown sugar from the first accused. One appellant's conviction was based on a statement recorded under Section 67, which he later retracted. Another appellant's conviction was based on a statement that he intended to purchase the drug, although no drugs or money were recovered from him during the operation.
Findings of Court:
The court found the retraction of the statement by one appellant to be an afterthought lacking evidence of coercion. However, for the other appellant, the court found that the statement did not contain enough inculpatory evidence to establish a conspiracy or abetment, noting that the absence of any payment or recovery of drugs made the conviction unsustainable.
Issues: Whether a retracted confession under Section 67 could sustain a conviction; whether the procedural requirements of Sections 42 and 57 were met; and whether a statement of intent to purchase narcotics, without recovery of money or contraband, is sufficient for a conviction of conspiracy.
Ratio Decidendi: A statement under Section 67 is reliable if no immediate grievance of coercion is made to a Magistrate. For charges of conspiracy or abetment, a statement must be supported by inculpatory facts; a mere intention to purchase without the recovery of contraband or consideration money is insufficient for conviction.
Result: Criminal Appeal No. 980 of 1999 allowed and conviction set aside; Criminal Appeal No. 981 of 1999 dismissed.
Table of Contents
2. Retracted confession under Section 67 was coerced; lacked corroboration; violation of Sections 42 and 57 of the Act. (Para 4 )
3. Exhibit P-8 statement of second accused was voluntary, reliable, and not retracted substantively; Exhibit P-9 of third accused lacked inculpatory content. (Para 5 , 6 , 8 )
4. A retracted confession without corroboration can still be relied upon if voluntary and credible. (Para 5 )
5. Appeal of second accused dismissed; appeal of third accused allowed and conviction set aside. (Para 11 , 12 )
6. Can a retracted confession under Section 67 of the NDPS Act be the sole basis for conviction?
Yes, if the confession is found to be genuine, voluntary, and reliable, even if retracted later. (Para 5 )
7. Is the failure to raise procedural violations under Sections 42 and 57 of the NDPS Act fatal to a challenge?
Yes, if not seriously pressed before the High Court and lacking factual basis, the contention cannot be countenanced. (Para 6 )
8. Can a statement under Section 67 of the NDPS Act lacking inculpatory content sustain a conviction?
No, a statement that does not contain inculpatory admissions cannot be the basis for conviction. (Para 8 )
9. Can an appellate court sustain a conviction under a statutory provision not charged or discussed by lower courts?
No, it is not fair to invoke a new provision not included in the charge or discussed by the trial or High Court. (Para 10 )
JUDGMENT
R.P.SETHI, J.
(1) THESE two appeals are by second accused (P.K. Naushad) and third accused (A.K. Mehaboob) in a case wherein three persons were arraigned before the trial court to face a charge for the offence under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The trial court acquitted these appellants of the offences, but convicted only 1st accused (N.P. Divakaran) for the aforesaid offences and sentenced him to rigorous imprisonment and fine in accordance with law. The aforesaid convicted person preferred an appeal before the "High Court in challenge of the conviction and sentence. In the meanwhile, respondent also filed an appeal in challenge of the order of acquittal passed in favour of the present appellants. Both appeals were heard together by a learned Single Judge of the High Court. While dismissing the appeal preferred by 1st accused, learned Single Judge reversed the order of acquittal passed on the appellants and convicted them also under Sections 21 and 29 of the Act and sentenced each of them to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000.00.
(2) THE substance of the case against the three accused was this:On the strength of sleuth information the Intelligence Officers of Narcotics Control Bureau lead by Superintended of Narcotics Control Bureau, Cochin (PW-1 and PW-2) raided the house of the appellant Naushad on 6.3.1994 at about 10.00 a.m. They found Divakaran (A1) and appellant Mehaboob (A3) sitting in one room. On search, 251 grams of brown sugar and had been recovered from Divakaran - A1. It was followed by another search made in the house of said Divakaran at about 7.00 p.m. and then also a quantity of 251 grams of brown sugar had been recovered from a suit case kept in that house. All the three accused were arrested. Their statements were recorded under Section 67 of the Act.
(3) THE case against appellant - Naushad depends entirely on Exhibit P-8 statement made to the officer under Section 67. There is no dispute that if the said statement is found to be genuine and reliable - Naushad has no escape from conviction, for, it contained vivid description of thetransaction he entered into with Divakaran in the trafficking of narcotics drug "heroin" and "brown sugar".
(4) SMT. Malini Poduval, learned Counsel for the appellants contended that Exhibit P-8 cannot be relied on for more than one reason. One is that the said statement had been retracted by the accused himself. Second is that on 11.8.1994 appellant - Naushad informed the Magistrate in writing that the said statement had been coaxed out from him. The third is that the said retracted confession had no corroboration, and therefore, cannot be made the basis for conviction.
(5) THERE is nothing to indicate that Exhibit P-8 had been elicited from A2 by any coercion, threat or force, and therefore, the learned Single Judge of the High Court had spurned down that contention. Regarding the complaint alleged to have been made by appellant - Naushad on 11.3.1994 we have perused it. His case therein was that he offered himself to be a witness in the case and some reward was offered for it. It was on the said offers that he agreed to sign the said statement. It must be remembered that appellant - Naushad has no case that when he was produced before the Magistrate, immediately after his arrest, he made any grievance of any maltreatment administered to him by the members of the Narcotics Control Bureau. Wisdom downed on him (when the complaint dated 11.3.1994 was filed) to put up an advance defence against the statement given by him under his own signature. Even then he did not think it necessary to make any allegation that any intimidatory tactic, muchless any third degree method had been applied on him. His case in the said complaint that a reward was offered to him and hence he agreed to sign the s
