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2009 Supreme(UK) 142
2009 N.C.C. 673
SUPREME COURT OF INDIA
Hon’ble Mr. Justice S.B. Sinha, Hon’ble Dr. Justice Mukundakam Sharma
and Hon’ble Mr. Justice H.L. Dattu
Criminal Appeal No. 1397 of 2007
U.O.I. – Appellant
Versus
BAL MUKUND & ORS. – Respondents
Decided on : 31.03.2009
For the Appellant : Mr. Sushil Kr., Sr. Adv., Mr. B.B. Singh, Ms. Bina Tamta (Ms. Sushma Suri), Mr. Santosh Kumar (D.M. Nargolkar), Mr. Shakil Ahmed Syed, Ms. Praveena Gautam (C.D. Singh), Advs. with him for the appearing parties.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 42 — Effect of — Sec. 42 of the Act mandates compliance of requirements contained there in — If the officer has reason to believe from personal knowledge or information given by any person — Taking down the information in writing is, therefore, very necessary to be complied with — Sub-section (2) of Sec. 42 provides that such an information reduced in writing should be communciated to his immediate superior officers within 72 hrs. (Para 18)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 67 — Confessional statement — Basing conviction solely thereon — Propriety of — Where no contraband was found from his possession and he was prosecuted on the basis of statement of co-accused of conspiracy with him in regard to commission of offences made, under Sec. 8/18 of the Act with such other co-accused — Such conspiracy not being proved by prosecution — Conviction of such accused — Not justified.
(Paras 19, 20, 29, 31, 39)
(C) Evidence Act, 1872, Sec. 30 — Confession made by accused on terms of provisions of Cr.P.C. or otherwise — Admissibility of — Confession of accused may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. (Para 22)
(D) Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 55 — Police to take charge of articles seized and delivered — Non-compliance — Provision of — A serious infirmity in prosecution case. (Para 40)
(E) Appeal against order of acquittal recorded by High Court — Scope of — It is well-known that the appellate court would not interfere with a judgment of acquittal only because another view is possible — On the other hand, if two views are possible, it is trite, the appellate court shall not interfere — Judgment of the Hon'ble Supreme Court in (2008) 5 SCC 368 relied on. (Para 41)
¼v½ Lokid vkS"kf/k vkSj eu izHkkoh inkFkZ vf/kfu;e] 1985] /kkjk&42 dk izHkko & bl /kkjk esa ml oLrq ds fo"k; esa vko';d dk;Zokgh djus gsrq vknsf'kr fd;k x;k gS tc ;fn vf/kdkjh dks fo'okl dk dkj.k Lo;eso vFkok fdlh vU; O;fDr ls lwpuk feyus ij gks tk, & fyf[kr esa lwpuk feyus ij ;g vR;ko';d gS fd /kkjk&42¼2½ dk ifjikyu fd;k tk, ftl ds vuqlkj fyf[kr lwpuk feyus ij 72 ?kaVs ds vUnj vius fudVre mPp vf/kdkjh dks lwpuk nsuh pkfg,A ¼izLrj 8½
¼c½ Lokid vkS"kf/k vkSj eu izHkkoh inkFkZ vf/kfu;e] 1985] /kkjk&67 & bdckfy;k c;ku & ek= ftlds vk/kkj ij nks"k flf) dh xbZ] ds vkSfpR; dks pqukSrh nh xbZ & tc vfHk;qDr ds dCts ls dksbZ fuf"k) inkFkZ ugha ik;k x;k Fkk vkSj lgvfHk;qDr ds c;ku ij lkft'k ds rgr mDr vijk/k djus esa 'kkfey gksus ds dkj.k ml vU; O;fDr ds lkFk /kkjk&8@18 ds vUrxZr vfHk;ksftr fd;k x;k Fkk & ,slh lkft'k dks vfHk;kstu }kjk fl) ugha fd;k tk ldk & ,sls vfHk;qDr dh nks"kflf) U;k;ksfpr ugha ikbZ xbZA
¼izLrj 19] 20] 29] 31] 39½
¼l½ lk{; vf/kfu;e] 1872] /kkjk&30 & lhvkj ih lh vFkok vU; izdkj ls fufgr 'krks± ij fn;k x;k bdckfy;k c;ku & vfHk;qDr ds ,sls bdckfy;k c;ku dks dsoy /kkjk&30 lk{; vf/kfu;e ds rgr Lohdk;Z djkj fn;k tk ldrk gS uk fd fdlh vU; izdkj ls & ;fn ;g c;ku fdlh vf/kdkjh ds lEeq[k fn;k x;k gS rks c;ku nsus okyk bl ls ck/; gksxk] lg vfHk;qDr ugha] vFkok os tks mlesa Qalk;s x;s gSaA ¼izLrj 22½
¼n½ Lokid vkS"kf/k vkSj eu izHkkoh inkFkZ vf/kfu;e] 1985] /kkjk&55 ds rgr ftu vkfVZdYl dks idM+k x;k gS vkSj fMyhoj fd;k x;k gS mudk pktZ iqfyl dks ysuk iM+rk gS & bldk ifjikyu u djus ls vfHk;kstu ds dsl esa xaHkhj =qfV mRié gks tkrh gSA ¼izLrj 40½
¼;½ mPp U;k;ky; }kjk fjgkbZ vkns'k fn;s tkus ds fo#) vihy nk;j dh xbZ & blds foLrkj dk iz'u mBk & ;g loZfofnr gS fd vihyh; U;k;ky; }kjk fjgkbZ vkns'k esa rc rd dksbZ n[ky ugha fn;k tkrk tc rd dksbZ foijhr fopkj laHko u gks & nwljh vksj ;fn nks fopkj laHko gks rks ;g lR; gS fd vihyh; U;k;ky; n[ky ugha nsxh & ekU; mPpre U;k;ky; fu.kZ; (2008) 5 SCC 368 dks vk/kkj ekuk x;kA
¼izLrj 41½
S.B. Sinha. J. – Union of India is before us aggrieved by and dissatisfied with a judgment and order dated 13.05.2005 passed by the High Court of Madhya Pradesh at Indore in Criminal Appeal Nos. 964 and 1108 of 2000.
2. The factual matrix involved herein as under:
Sub-Inspector Bajrang Lal posted in the Office of the Central Bureau of Narcotics, Ratlam purported to have obtained a secret information to the effect that the respondent Nos. 1 and 2 herein Bal Mukund and Basanti Lal would be carrying about 20 Kg. of Opium on the next day. A preventive party allegedly was formed pursuant to or in furtherance of the said information. At about 0430 hours on 21.06.1998, they reached Nayapura Phanta on Ratlam Jaora Road. Respondent Nos. 1 and 2 were seen carrying cement gunny bags. They were searched. 10 Kgs. of Opium paced in 5 polythene bag of 2 kg. each from each of them were said to have been covered.
3. The purported confessions of the respondent Nos. 1 and 2 recorded on 21.06.1998, unofficial translated version whereof reads as under:
“Statement of Respondent No. 1
...My father is debt ridden to Amritlal Anjana out of Rs. 38,000/- out of which Rs. 18,000/- has been paid now. Their balance is Rs. 20,000/-. This sum of Rs. 38,000/- were given to me by Amritlal Anjana for motor for well and some amount was taken in cash. Amritlal suggested that if I wishes to liquidate my father’s debt then I should away opium and give it to suggested destination. I shall give good wages against it. A sum of Rs. 3,000/- were decided for carrying the opium. I came from my village Nandwell to Behpur and Basantilal who is my relative. Both met Amritlal Anjana at 10-00 night at his well Amritlal Anjana by Giving 10-000 Kgs each of us with the opium and directly to go on feet towards Nandi. He also said he would be available nearly Nandi Phanta. He said, he would give Rs. 3,000/- to each by way of wages when we came on foot by & carrying 20-000 Kgs of opium and reached Nayapura Phatak then Narcotics officers detained us and took our formal search. He found opium in the bag meant for cement weight 10-000 Kgs. Which was seized by Narcotics Deptd. Ratlam and I was detained for carrying, illicit opium weight 10-000 Kg. under the office of N.D.P.S. This statement I am giving voluntarily and in full consciousness whether is spoken is underwritten to which I having read and finding it to be correct put my signature.
Statement of Respondent No. 2
...On further interrogation started that they are opium weighting 10 Kg and 10 Kg opium from my colleague has been recovered for which on interrogation I state truly that on 20-06-1998 Balmukund came to my village Behpur and said that we have to go to Maukhedi at the residence of Amritlal S/o Raghunath Anjana therefore I alongwith Balmukund proceeded for Behpur come to Maukhedi who Amritlal Anjana and that we should go to his well where I shall give you opium or reached the well Amritlal Anjana gave me in a bag of 10 kg of opium and 10 kg to my colleague Balmukund and we should go on foot on unconstructed road and reached Nanda Phatak where I will be awaiting nearly and collect the opium, we were coming on foot towards Nandit then Narcotics officer took our search then in the bag. I was carrying opium weighing 10 kg. was recovered and 10 kg. of opium was also recovered from my colleagues Balmukund. The opium so recovered was taken into government possession under N.D.P.S. Act, 1985. The statement which I have made is in full consciousness, voluntarily and whatever I stated is only written to which I hearing/read put my signature.”
4. Indisputably, they were arrested. Thereafter also they made similar statements. However, as no reliance has been placed thereupon, it is not necessary for us to refer thereto.
5. On a purported confession made by them that they were carrying the said contraband at the behest of Accused No. 3 Amritlal, a search was conducted in his house at about 1.30 p.m. No contraband, ho
