Back
IN THE HIGH COURT OF MADRAS
N. ANAND VENKATESH, J.
Kumar and Ors - Appellant
Versus
State - Respondent
Crl. O.P. Nos. 9260 and 9903 of 2019
Decided On : 17-05-2019
NDPS Act - Section 67 - Indian Evidence Act - Section 30 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8(c) r/w. 20 – First information report - Relevant evidence - A careful reading of above judgments makes it very clear that a confession can be made admissible in evidence under Section 67 of the Act as a substantive evidence as against the maker of the statement. But, in respect of the co-accused, the said statement can never be treated as a substantive evidence. At the most, it can be considered as a relevant evidence under Section 30 of the Indian Evidence Act - On the touch stone of the law laid down by Supreme Court, the confession of the co-accused can, at the best, be used or utilized in order to lend assurance to Court - In absence of a substantive evidence, the Court cannot proceed to convict the accused, purely on the statement of co-accused. In the instant case investigation has been completed and a final report has also been filed and the only material that is available against the petitioners is the statement of the co-accused and there is no other material. Under such circumstances, this Court is able to satisfy itself that there are reasonable grounds for believing that the petitioners are not guilty of the offence - That apart, there is no material to show that the petitioners will commit any offence, while on bail - Therefore, this Court is satisfied that the petitioners have fulfilled the twin requirements of Section 37 of the NDPS Act and are therefore, entitled to be granted bail. This is apart from the fact that the investigation has already been completed and the petitioners have already suffered incarceration for quite a long time. Therefore, this Court is inclined to grant bail to the petitioners – Held, A careful reading of the above judgments makes it very clear that a confession can be made admissible in evidence under Section 67 of the Act as a substantive evidence as against the maker of the statement. But, in respect of the co-accused, the said statement can never be treated as a substantive evidence - At the most, it can be considered as a relevant evidence under Section 30 of the Indian Evidence Act - On the touch stone of the law laid down by Supreme Court, the confession of the co-accused can, at the best, be used or utilized in order to lend assurance to the Court. In the absence of a substantive evidence, the Court cannot proceed to convict the accused, purely on the statement of co-accused. In the instant case, the investigation has been completed and a final report has also been filed and the only material that is available against the petitioners is the statement of the co-accused and there is no other material - Under such circumstances, this Court is able to satisfy itself that there are reasonable grounds for believing that the petitioners are not guilty of the offence - That apart there is no material to show that the petitioners will commit any offence while on bail - Therefore, this Court is satisfied that the petitioners have fulfilled the twin requirements of Section 37 of NDPS Act and are therefore, entitled to be granted bail - This is apart from fact that investigation has already been completed and petitioners have already suffered incarceration for quite a long time - Therefore, this Court is inclined to grant bail to petitioners - In absence of any substantive evidence it would be inappropriate to base conviction of appellant purely on statements of co-accused appellant is therefore entitled to be acquitted of the charges leveled against him – Order accordingly
ORDER :
N. ANAND VENKATESH, J.
1. The petitioners/Accused Nos. 1 and 2, who were arrested and remanded to judicial custody on 15.02.2019 for an offence under Section 8(c) r/w. 20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "NDPS Act"), in Crime No. 438 of 2018 on the file of the respondent police, seek bail.
2. The case of the prosecution is that the Sub-Inspector of Police of D-1 Ramanathapuram Law and Order Police Station, Coimbatore, received an information that a person was in possession of Ganja near KTM showroom at Sungam Bypass Road, Coimbatore. After compliance of the statutory provisions under Section 41 of the NDPS Act, the police officer, along with the team, went to the spot at 09.30 a.m. and surrounded the person and came to know his name as Rajesh Kumar. This accused person was found in possession of 35 kg of ganja, kept in a nylon bag. After compliance of the mandatory provisions, the same was seized under mahazar in the presence of independent witnesses. Thereafter, his confession statement was also recorded. Based on his confession, the petitioners herein, who are ranked as A1 and A2, were added as accused persons. The petitioner in Crl. O.P. No. 9903 of 2019 was already a remand prisoner in Crime No. 789 of 2018 and he was arrested under P.T. Warrant. The petitioner in Crl. O.P. No. 9260 of 2019 was already a remand prisoner in Crime No. 275 of 2018 and he was arrested under P.T. Warrant and both the accused persons were remanded to judicial custody on 15.02.2019. There are totally three accused persons in this case and the petitioners are A1 and A2.
3. The learned counsel for the petitioners submitted that the petitioners have been falsely implicated in this case by the respondent police. The learned counsel submitted that, except the alleged confession by the co-accused, there is absolutely no other material available as against the petitioners. The learned counsel submitted that, admittedly, no seizure was effected from the petitioners and the petitioners were already remand prisoners in the above said crime numbers and in order to add one more case against the petitioners, they have been falsely implicated in this case. The learned counsel submitted that the confession of the co-accused cannot be treated to be a statement under Section 67 of the NDPS Act insofar as these petitioners are concerned and it can be relied upon, at the best, only under Section 30 of the Indian Evidence Act. The learned counsel, in order to substantiate the same, relied upon the following judgments.
(ii) K. Velu v. State (2015) 4 MLJ (Crl) 306
(iii) Surinder Kumar Khanna v. Intelligence Officer Directorate of Revenue Intelligence Criminal Appeal No. 949 of 2018 dated 31.07.2018
The learned counsel for the petitioners concluded the arguments, saying that the petitioners have already suffered incarceration for a substantial period and A3 has already been granted bail by the Special Court for EC Cases, Coimbatore, by an order dated 12.11.2018.
4. The respondent has filed a detailed counter affidavit, explaining the entire facts right from the stage of receiving information till the recording of the statement of the accused persons under Section 67 of the NDPS Act.
5. The learned Additional Public Prosecutor appearing on behalf of the respondent, apart from reiterating the stand taken by the respondent police in the counter affidavit, submitted that the investigation has already been completed and a final report has also been filed before the Special Court. The learned Additional Public Prosecutor submitted that the petitioners have been implicated in this case based on the confession of the co-accused and there are two previous cases pending against the petitioners apart from the present case.
6. This Court has carefully considered the submissions made on either side.
7. In t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
