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2008 Supreme(MP) 30
2008(3) JLJ 280
(SUPREME COURT)
Altamas Kabir and B. Sudershan Reddy, JJ.
Kanhaiyalal v. Union of India
Criminal Appeal No. 788 of 2005 : against the judgment of
M.P.High Court, Indore, passed in Criminal Appeal No. 108 of 2003;
Decided on 9.1.2008.
S.K. Gambhir with T.N. Singh for appellant;
B.B. Singh and Ms. Binu Tamla for respondent.
.
Headnote:(1) Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss.67, 42 and 8/18 -- offence under S.8/18, NDPS Act -- confession made under S.67 -- is admissible u accused can be convicted thereon.
Since the appellant Kanhaiyalal 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. [Para 7
Held: It may also be recalled that though an application was made for retracting the confession made by the appellant, neither was any order passed on the said application nor was the same proved during the trial so as to water down the evidentiary value of the said statement. On the other hand, in the absence of such evidence on record, the High Court has no option but to proceed on the basis of the confession as made by the appellant under section 67 of the NDPS Act. Since it has been held by this Court that an officer for the purposes of section 67 of the NDPS Act read with section 42 thereof, is not a police officer, the bar under sections 24 and 27 of the Evidence Act cannot be attracted and the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person. Since a conviction can be maintained solely on the basis of a confession made under section 67 of the NDPS Act, we see no reason to interfere with the conclusion of the High eourt convicting the appellant. AIR 1954 SC 4, AIR 1953 SC 459, (2004)7 SCC 779, (2005)11 SCC 600, (1971)3 SCC 950, AIR 1968 SC 832, AIR 1963 SC 1094, (2001) 10 SCC 203, AIR 1964 SC 1184, (2003)8 SCC 449 and AIR 1961 SC 1808 discussed. [Para 47
(2) Narcotic Drugs and Psychotropic Substances Act, 1985 -- S.67 -- Evidence Act, 1872 -- Ss.24 to 27 -- Constitution of India -- Art.20(3) -- confessional statement made by person in custody but not arrested -- is admissible -- neither provisions of Ss.24 to 27 of 1872 Act nor Art.20( 3) of Constitution are attracted. [Para 41
(3) Evidence Act, 1872 -- S.27 -- Constitution of India -- Art.20(3) -- statement of accused incriminating himself made after arrest -- bar under Art.20(3) of Constitution not applicable if given voluntarily without any threat or compulsion -- it should be supported by corroborative evidence. (1999)6 SCC 1 relied on. [Para 42
(4) Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss.53 and 67 -- Evidence Act, 1872 -- S.25 -- officers of Department of Revenue Intelligence acting as in-charge of police officers under S.53, NDPS Act -- are not police officers under S.25 of 1872 Act -- statement recorded by them is admissible. (1990)2 SCC 409 relied on. [Para 44
¼1½ Lokid vks"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e] 1985 && /kkjk 67] 42 rFkk 8@18 && Lokid vks"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e dh /kkjk 8@18 ds v/khu vijk/k && /kkjk 67 ds v/khu laLohd`fr && xzkg~; gS && vfHk;qDr ml ij ls fl)nks"k Bgjk;k tk ldrk gSA
D;ksafd vihykFkhZ dUgS;kyky Lokid vks"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e dh /kkjk 67 ds v/khu mlds dFku ds vk/kkj ij fl)nks"k Bgjk;k x;k gS] ;g iz‘u mBk;k x;k gS fd mDr vf/kfu;e dh /kkjk 42 ds vFkkZarxZr fdlh vf/kdkjh ds le{k fd;k x;k dFku laLohd`fr dk dFku ekuk tk ldrk gS vkSj D;k fdlh vU; laiks‘kd lk{; ds vHkko esa mlds vk/kkj ij vfHk;qDr fl)nks"k Bgjk;k tk ldrk gSA ¿ iSjk 7
vfHkfu/kkZfjr % ;g Hkh Lej.k fd;k tk, fd ;|fi vihykFkhZ }kjk laLohd`fr ls eqdjus dk vkosnu fd;k x;k Fkk] u rks mDr vkosnu ij dksbZ vkns‘k ikfjr fd;k x;k vkSj u fopkj.k ds le; mDr ds lkf{;d ewY; de fd,tkus ds fy, u mls lkfcr gh fd;k x;kA nwljh vksj] vfHkys[k esa ,sls lk{; ds vHkko esa] mPp U;k;ky; dks Lokid vks"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e dh /kkjk 67 ds v/khu vihykFkhZ dh laLohd`fr ds vk/kkj ij vxzlj gksus ds vfrfjDr dksbZ fodYi ugha FkkA D;ksafd bl U;k;ky; }kjk vfHkfu/kkZfjr fd;k x;k gS fd Lokid vks"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e dh /kkjk 42 ds lkFk ifBr /kkjk 67 ds iz;kstuksa ds fy, vf/kdkjh iqfyl vf/kdkjh ugha gS] lk{; vf/kfu;e dh /kkjk 21 rFkk 27 ds v/khu otZu vkdf‘kZr ugha fd;k tk ldrk rFkk lacaf/kr vf/kdkjh ds le{k milatku gksus ds fy, funsf‘kr O;fDr }kjk fd;k x;k dFku] ,sls O;fDr ds fo:) laLohd`fr dFku dh Hkk¡fr voyafcr fd;k tk ldrk gSA D;ksafd Lokid vks"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e dh /kkjk 67 ds v/khu laLohd`fr ds ,dek= vk/kkj ij nks"kflf) ekU; dh tk kldrh gS] mPp U;k;ky; }kjk vihykFkhZ dks fl)nks"k Bgjk, tkus ds fu"d"kZ esa gLr{ksi fd, tkus ds fy, gesa dksbZ dkj.k ugha fn[krkA , vkb vkj 1954 ,l lh 4] , vkb vkj 1953 ,l lh 459] ¼2004½7 ,l lh lh 779] ¼2005½11 ,l lh lh 600] ¼1971½3 ,l lh lh 950] , vkb vkj 1968 ,l lh 832] , vkb vkj 1963 ,l lh 1094] ¼2001½10 ,l lh lh 203] , vkb vkj 1964 ,l lh 1184] ¼2001½8 ,l lh lh 449 rFkk , vkb vkj 1961 ,l lh 1808 foosfprA ¿ iSjk 47
¼2½ Lokid vks"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e] 1985 && /kkjk 67 && lk{; vf/kfu;e] 1872 && /kkjk 24 ls 27 && Hkkjr dk lafo/kkuk && vuq-20¼3½ && ,sls O;fDr }kjk dh xbZ laLohd`fr tks vfHkj{kk esa gS fdarq fxj¶rkj ugha fd;k x;k gS && xzkg~; gS && u rks 1872 ds vf/kfu;e dh /kkjk 24 ls 27 vkSj u Hkkjr ds lafo/kku ds vuq-20¼3½ ds mica/k gh vkdf‘kZr gksrs gSaA ¿ iSjk 41
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 27 && Hkkjr dk lafo/kku && vuq-20¼3½ && fxj¶rkjh ds i‘pkr~ Lo;a dks Q¡lkus dk dFku && lafo/kku ds vuq-20¼3½ ds v/khu otZu ykxw ugha gksxk ;fn fcuk fdlh /kedh ;k ncko ds LosPNk ls fd;k x;k gS && og laiks‘kd lk{; }kjk lefFkZr gksuk pkfg,A ¼1999½6 ,l lh lh 1 voyafcrA ¿ iSjk 42
¼4½ Lokid vks"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e] 1985 && /kkjk 53 rFkk 67 && lk{; vf/kfu;e] 1872 && /kkjk 25 && Lokid vks"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e dh /kkjk 53 ds v/khu iqfyl Hkkjlk/kd vf/kdkjh ds :i esa dk;Zjr jktLo vklwpuk ds vf/kdkjh && 1872 ds vf/kfu;e dh /kkjk 25 ds v/khu iqfyl vf/kdkjh ugha gSa && muds }kjk vfHkfyf[kr lk{; xzg~; gSA ¼1990½2 ,l lh lh 409 voyafcrA ¿ iSjk 44
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 sections 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 18 kg. 200 gm. 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' RI together with fine of Rs.1 lac, in default, to undergo 2 years' RI 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 8/28 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' RI each and fine of Rs.1lac each, and in default, to further undergo a jail sentence of 6 months' RI.
6. It is against the said judgment of the High Court that the instant appeal had been preferred by Kanhaiyalal.
7. Since the appellant Kanhaiyalal 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 Phool Chand and Ram Prasad were involved in illegal dealing in opium and they had entered into an agreement to buy 25 kg. 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.
9. On the basis of the said information a preventive party was constituted which proceeded to the identified site. The raiding party purportedly reached village Hadipipliya, 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 Hadipipliya, the raiding party proceeded towards the well in question belonging to Ram Prasad's 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 Lala Ram Dinkar went up to the other person sitting near the well who disclosed his na
