IMPORTANT POINT
Confession made before an officer of the Dept. of Revenue Intelligence under NDPS Act may not be hit by Section 25 of Evidence Act but still such confession must be subject to closer scrutiny.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1986—Sections 8/21 —Recovery of one kg. of heroin from possession of accused No. 1 apprehended by Intelligence Officer NCB—Accused gave statement before officers of NCB and named appellant as supplier of that drug—Conviction of both accused—Appeal—Only evidence against appellant was the retracted statement of accused No. 1 and appellant’s own retracted confession—Rule of prudence required that evidence of an accomplice should ordinarily be corroborated by some other evidence—Confession made before an officer who was from Department of Revenue Intelligence was not hit by Section 25 of Evidence Act yet such confession must be subject to closer scrutiny—It was not safe to maintain conviction of appellant and he deserved to be given benefit of doubt.
       Held : A perusal of the facts of the case would show that there is no allegation that the appellant himself was found in possession of any narcotics. The allegation was only that he handed over some narcotics to accused No. 1. The only evidence against the appellant is the retracted statement of accused No. 1 and the appellant’s own retracted confession.(Para 6)
       We make it clear that we are not of the opinion that the evidence of the accomplice can never be relied upon, since such evidence is admissible under Section 133 of the Evidence Act. However, Section 133 has to be read along with Section 114(b) of the Evidence Act, and reading them together the law is well settled that the rule of prudence requires that the evidence of an accomplice should ordinarily be corroborated by some other evidence.(Para 10)
       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 Act. Hence the alleged confession made by the same appellant must be subjected to closer scrutiny than would otherwise be required.(Para 15)
       We have carefully perused the facts of the present case, and we are of the opinion that on the evidence of this particular case it would not be safe to maintain the conviction of the appellant, and he must be given the benefit of reasonable doubt.(Para 16)

JUDGMENT

Markandey Katju, J.—This appeal has been filed against the impugned judgment of the Kerala High Court dated 5.4.2004 in Criminal Appeal No. 217 of 2002.

2. Heard learned counsel for the parties and perused the record.

3. The appellant was accused No. 2 in the criminal case under the NDPS Act with which we are concerned.

4. The prosecution case briefly stated is that on 1.10.2000 at 3.45 P.M., PW7, Radhesh, Intelligence Officer, received information that one person was standing in the parking area between Gandhi Park and Pattomthanu Pillai Park at East Fort, Thiruvananthapuram waiting for somebody to dispose of about one kilogram of heroin which was in his possession. PW7 recorded the information and submitted Ext. P10 report to PW5, the Superintendent, Narcotic Control Bureau Regional Intelligence Unit, Thiruvananthapuram. PW7 alongwith the informant proceeded to the place where the 1st accused was waiting and the 1st accused was shown to PW7 by the informant. PW5 alongwith PW4 and PW6 reached near Pattomthanu Pillai Park about 4.30 P.M. and PW7 pointed out the 1st accused to them. PWs 4, 5 and 6 alongwith the witnesses approached the accused who was holding M.O. 2 (a) bag. PWs 4 to 6 disclosed their identity and expressed their desire to search the 1st accused. He was also informed of his right to be searched in the presence of a gazetted officer or a Magistrate. The 1st accused waived the right and expressed his willingness to be searched by the officers. When PW1 asked the 1st accused whether he was possessing any narcotic drug, the 1st accused handed over M.O. 2(a) bag to PW4. The bag was found to contain M.O.2(d) white full shirt and a bundle of M.O. 2 (b) and M.O.2 (c) lungies. When the lungies were removed, a transparent polythene cover containing brownish powder was recovered. PW4 opened the polythene packet and took a pinch of the powder and tested it with a Field Drug Detection Kit. Since the test gave positive result, PW4 seized the narcotic drug. The polythene cover and the drug were found to weigh 1.110 kilograms. Two samples were taken and the samples were separately packed and sealed. The remaining drug was also separately packed and sealed. PW4 prepared Ext. P1 Mahazar. At the request of PW4, PW6 served Ext. P2 summons on the 1st accused directing him to appear on the N.C.B. Office at 7 P.M. on the same day. Since the 1st accused did not know the place, PW7 was asked to accompany the 1st accused to the N.C.B. Office. In obedience to the summons the 1st accused appeared before the N.C.B. Office and gave Ext. P12 statement in Tamil which was recorded by PW6. Thereafter PW6 arrested the 1st accused. On the next day the 1st accused was produced before the Magistrate who remanded him to the Sub Jail. Since the name of the 2nd accused was also mentioned in Ext. P12 statement, PW5 proceeded to Idinthikara of Thirunalveli District on the morning of 2.10.2000 and Ext. P15 summons was served on the 2nd accused directing him to appear before the N.C.B. Office at Thiruvananthapuram at 5 P.M. on that day. The 2nd accused appeared before the N.C.B. Office in the evening and gave Ext. P16 statement in his own handwriting. PW6 arrested the 2nd accused. The 2nd accused was also produced before the Magistrate, who remanded him to the Sub Jail. The investigation was handed over to PW 7. The samples were sent to the Customs Laboratory, Cochin and Ext. P5 report was obtained. After completing the investigation, PW7 lodged the complaint before the Court.

5. The accused denied the charge. Thereupon the prosecution examined PWs 1 to 7, marked Exts. P1 to P20 and identified M.Os. 1 to 4. After the close of the prosecution evidence the accused were examined under Section 313 of the Cr.P.C. They denied the prosecution evidence and pleaded that they were innocent.

6. A perusal of the facts of the case would show that there is no allegation that the appellant himself was found in possession of any narcotics. The all

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2006 Supreme(SC) 1306

IMPORTANT POINT Confession made before an officer of the Dept. of Revenue Intelligence under NDPS Act may not be hit by Section 25 of Evidence Act but still such confession must be subject to closer scrutiny.

Cases Referred (7)

IMPORTANT POINT
Confession made before an officer of the Dept. of Revenue Intelligence under NDPS Act may not be hit by Section 25 of Evidence Act but still such confession must be subject to closer scrutiny.