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2008(1) Supreme 112
Supreme Court of india
(From Madhya Pradesh High Court)
Altamas Kabir & B. Sudershan Reddy, JJ.
Kanhaiyalal — Petitioner
versus
Union of India — Respondent
Appeal (crl.) 788 of 2005
Decided on : 09-01-2008
(2005)11 SCC 600 – Relied upon.
(b)Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 67 r/w Sections 24 to 27 Indian Evidence Act, 1872 and Article 20(3) Constitution of India. – As long as the statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted – It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play. (Para 36)
AIR 1954 SC 4; AIR 1953 SC 459; (2004)7 SCC 779; (1971)3 SCC 950; (1968)2 SCR 641; 1963 Suppl.1 SCR 689; (2001)10 SCC 203; (1999) 6 SCC 1; (1964)6 SCR 623; (2003) 8 SCC 449 – Relied upon.
(c)Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 67 – Confessions made under provisions of Section 67 may be treated as confessions for the purpose of Section 27 of the Evidence Act – Caution however had to be exercised by the court to itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence. (Para 37)
(d)Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 67 – Officers of the Department of Revenue Intelligence who have been vested with powers of an Officer-in-Charge of a police station under Section 53 of Act are not ‘police officers’ within the meaning of Section 25 of the Evidence Act – Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. (Para 37)
(2003) 8 SCC 449; (1990)2 SCC 409 – Relied upon.
(e)Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 67 – A statement made under Section 67 is not the same as a statement made under Section 161 Cr. P.C., unless made under threat or coercion – It is this vital difference which allows a statement made under Section 67 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 – Conviction can be made solely on the basis of confession u/s 67. (Para 38)
Facts of the case:
1.The appellant herein, along with one Phool Chand and Ram Prasad, was accused of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 and ultimately charges were framed against them by the Special Judge under Section 8/18 and in the alternative under Section 8/18/29 of the aforesaid Act. On denying the charges framed against them the accused persons were sent to trial.
2.The learned Special Judge ultimately held that the charges had been fully proved against the accused Phool Chand, from whose possession 19 kg 200 gms. of opium was seized. Phool Chand was found guilty and convicted under Section 8/18 of the NDPS Act and sentenced to suffer 10 years R.I. together with fine of Rs.1 lakh, in default, to undergo 2 years R.I. separately.
3.Appeal filed by accused Ram Prasad was dismissed and the appeal fled by the Union of India was allowed by High Court.
Findings of the Court:
Conviction can be made solely on the basis of confession u/s 67 without any further corroboration.
Result :Appeal dismissed.
judgment
Altamas Kabir, J. —
1.The appellant herein, along with one Phool Chand and Ram Prasad, was accused of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and ultimately charges were framed against them by the Special Judge under Section 8/18 and in the alternative under Section 8/18/29 of the aforesaid Act. On denying the charges framed against them the accused persons were sent to trial.
2.The learned Special Judge framed several issues and ultimately held that the charges had been fully proved against the accused Phool Chand, from whose possession 19 kg 200 gms. of opium was seized. Phool Chand was found guilty and convicted under Section 8/18 of the NDPS Act and sentenced to suffer 10 years R.I. together with fine of Rs.1 lakh, in default, to undergo 2 years R.I. separately.
3.As far as the appellant herein and Ram Prasad are concerned, the learned Trial Judge found that the charges against them had not been proved and acquitted them of the charges under Section 8/18 read with Section 29 of the NDPS Act.
4.Aggrieved by his conviction and sentence, Phool Chand preferred Criminal Appeal No.47 of 2002 before the Indore Bench of the Madhya Pradesh High Court. On the other hand, the Union of India also preferred Criminal Appeal No.108 of 2003 against the acquittal of Ram Prasad and the appellant herein.
5.The High Court heard both the appeals together and ultimately dismissed the appeal preferred by Phool Chand and relying on the statement made by Ram Prasad and the appellant herein under Section 67 of the NDPS Act, found them also guilty of the charges framed against them and allowed the appeal filed by the Union of India. Ram Prasad and Kanhaiyalal (the appellant herein) were also sentenced to 10 years R.I. each and fine of Rs. 1 lakh each, and in default, to further undergo a jail sentence of 6 months R.I.
6.It is against the said judgment of the High Court that the instant appeal had been preferred by Kanhaiyalal.
7.Since the appellant, Kanhiyalal was convicted on the basis of the statement made by him under Section 67 of the NDPS Act, a question has been raised whether such statement made to an officer within the meaning of Section 42 of the said Act could be treated as a confessional statement and whether the accused could be convicted on the basis thereof in the absence of any other corroborative evidence.
8.As will appear from the records, the case of the prosecution was that on 22.2.1997 an information had been received by Shri Rajesh Nagpal, Assistant Narcotics Commissioner of the Central Bureau of Narcotics, Neemuch, that accused Phoolchand and Ram Prasad were involved in illegal dealing in opium and they had entered into an agreement to buy 25 kgs of opium from the appellant and the delivery of the said contraband was to be made at the site of the well of accused Ram Prasad situated in Haspur. On receipt of the said information, Shri Nagpal went to his office and reported the same. Subsequently, the same was produced before the Deputy Commissioner, Shri Prem Raj. On the basis of the said information a preventive party was constituted which proceeded to the identified site. The raiding party purportedly reached village Hadipiplya Police Station, Manasa, by a Government vehicle at about 3.00 p.m. on the same day and after calling two independent witnesses, Madan Lal and Ram Rattan, who belonged to Hadipatiya, the raiding party proceeded towards the well in question belonging to Ram Prasads father Mangi Lal. The raiding party led by Lala Ram Dinkar, Inspector, along with the said two witnesses reached the said well at about 4.00 p.m. and found two persons sitting there with 3 bags. On seeing the raiding/preventive party, one of the two persons sitting there ran away and although he was chased by some members of the raiding party, they did not manage to catch him. Inspector Lal Ram Dinkar went up to the other person sitting near the well who disc
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