IMPORTANT POINT
Seizure of Heroin – Process of drawing of samples has to be in presence and under supervision of Magistrate and entire exercise has to be certified by him to be correct.

JUDGMENT :

Abhay S. Oka, J.

FACTUAL ASPECTS

1. Criminal Appeal No.451 of 2011 has been preferred by accused no.3 and Criminal Appeal No.1185 of 2011 has been preferred by accused no.1. As per the case of the prosecution, PW-2 Nalini Ranjan, Intelligence Officer, Narcotics Control Bureau (for short, ‘NCB’), South Zonal Unit, Chennai received information on 16th May 2002. Based on the information, she along with her team and two independent witnesses namely Devendran and Prabhu conducted a raid at Room No.303, Hotel Suriya, Periamet, Chennai where accused no.4 – F. Anna Raj was staying. The officers of NCB found that apart from accused no.4, accused nos.1 to 3 were also present in the room. The door of the room was opened by accused no.1. In the room, a bag containing narcotic substance was found which was seized. The narcotic substance found was 5.067 kilograms of heroin. The Trial Court convicted the accused no.1 (appellant in Criminal Appeal No.1185 of 2011) for the offences punishable under Section 8(c) read with Sections 21(c), 27A, 28 and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’). He was sentenced to undergo rigorous imprisonment for a period of 11 years and to pay a fine of Rs.1 lakh. In default of payment of fine, he was sentenced to undergo rigorous imprisonment for six months. Accused no.3 (appellant in Criminal Appeal No.451 of 2011) was convicted for the offences punishable under Section 8(c) read with Sections 21(c) and 29 of the NDPS Act. The sentence is the same as that of accused no.1. In appeal, while confirming the conviction, the High Court of Judicature at Madras reduced the sentence of both of them to ten years. The default sentence was reduced to one month. The other two accused with whom we are not concerned, were convicted for different offences punishable under the NDPS Act.

SUBMISSIONS OF THE APPELLANTS

CRIMINAL APPEAL NO. 451 OF 2011

2. Shri Sushil Kumar Jain, the learned senior counsel appearing for the appellant has made submissions in Criminal Appeal No.451 of 2011 preferred by accused no.3. At the outset, he pointed out that till he was released on bail, accused no.3 had undergone sentence for a period of eight years nine months and twelve days. He submitted that both the Courts have relied upon the confessional statement of the appellant recorded under Section 67 of the NDPS Act before the officers of the NCB who are invested with the powers under Section 53 of the NDPS Act. Relying upon a decision of this Court in the case of Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the learned senior counsel submitted that the officer before whom the confessional statement was made being a police officer, the bar of Section 25 of the Indian Evidence Act, 1872 (for short, ‘the Evidence Act’) is attracted. He submitted that the confessional statements are not admissible in evidence against the accused.

3. The learned senior counsel submitted that the contraband was allegedly recovered from Room no.303, which was booked in the name of accused no.4. Therefore, there was no seizure from accused no.3. He further submitted that PW-2 – Nalini Ranjan could not have acted as a Gazetted Officer for the purpose of effecting search under Section 50 of the NDPS Act. He pointed out that PW-2 was heading the raid since the very inception from the stage of receipt of information. In fact, she had led the raiding team. Therefore, she cannot act as an independent person.

4. The learned senior counsel further submitted that the officer who has the power to enter, search, seize and arrest without any warrant or authorization, has no power to investigate the offence and the said power has to be exercised by the officer authorized under Section 53 of the NDPS Act. He submitted that as provided in sub-Section (3) of Section 52, the seized articles are required to be forwarded without any unnecessary delay to the officer empowered under Section 53. He, further, submitted that in th