The main legal point established is the admissibility of confessional statements under Section 67 of the NDPS Act and the interpretation of Section 31 for determining the appropriate sentence.

ORDER :

In these two appeals, one coming from the judgment of the High Court of Gujarat and other from the High Court of Bombay, the appellant is the same. In both cases he was charged for the offences under Sections 8(c), 20(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'). Insofar as the case filed in Gujarat is concerned, it was registered as NDPS Case No. 1/2002 and was tried by the Additional Sessions Judge, Himmatnagar, Gujarat. Vide judgment and order dated 09.03.2004 passed by the Trial Court, the appellant was convicted for the aforesaid offences and was directed to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh with default clause to undergo further rigorous imprisonment for one year in case the fine is not paid. The appellant had challenged the aforesaid conviction and sentence by filing an appeal in the High Court of Gujarat i.e. Criminal Appeal No. 683 of 2004, which has been dismissed by the High Court vide judgment dated 24.10.2008. We may record here that against the sentence awarded by the learned Additional Sessions Judge even the State had preferred an appeal in the High Court for enhancement of the sentence which had also been dismissed by the High Court. We may also record at the outset that the main reason which has prevailed with the courts below is the confessional statement of the appellant recorded under Section 67 of the NDPS Act apart from relying upon certain other material.

2. Mr. Anand Grover, learned senior counsel appearing for the appellant, has made earnest endeavour to challenge the verdict of the courts below on various grounds. He submitted that for various reasons the statement of the appellant under Section 67 of the NDPS Act could not be used. According to him, the said statement was not given voluntarily but was extracted when the appellant was in custody and the prosecution has not been able to demonstrate that it was a voluntary statement given by the appellant. It is also argued that no such statement could be used unless the accused is arrested and in the present case no such arrest was shown at the time when the appellant had made the statement, though he was in custody. It was also argued that the statement was taken in Hindi whereas the appellant only knows Urdu.

3. We have considered all the aforesaid submissions in the light of the findings recorded by the Trial Court and upheld by the High Court. We are not able to find any substance in the aforesaid contentions as we find that the statement recorded was voluntary, which was never retracted by the appellant. Both the courts below have arrived at the same finding. The second contention of the learned senior counsel is also not having any merit. We further find that the appellant had accepted that he knew Hindi although he could not write in Hindi and while recording the statement it is specifically stated that the statement was read out to the appellant, which he understood and only thereafter he put his signatures. In the absence of any retraction of any such statement, we do not find any fault in the approach of the Trial Court in treating the said statement as voluntary and acting thereupon.

4. We may also record at this stage that the appellant has already undergone the said sentence of ten years. Notwithstanding the same the main reason for arguing this appeal by Mr. Grover was that it has a bearing on the second case which has originated from Bombay High Court and we shall advert thereto at this juncture.

5. As far as the other appeal is concerned, the appellant was tried by the Special Judge for NDPS, Court of Sessions for Greater Bombay in Special Case No. 60 of 2002. This trial culminated into conviction vide judgment dated 06.02.2008 by said court whereby the appellant was convicted for the offence under Sections 8(c), 20(b) (ii) read with Section 31A of the NDPS Act and was sentenced to death. The death reference has been sent f