Confessional statements made to officers invested with powers under Section 53 of the NDPS Act are inadmissible under Section 25 of the Evidence Act.

IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No. 5505 of 2022

Deepak Patil

….

Petitioner

Mr. P.K. Ray, Advocate

-versus-

State of Odisha

…. Opp. Party

Mrs. Susamarani Sahoo

Addl. Standing Counsel

BLAPL No. 5549 of 2022

Hari Matam

….

Petitioner

Mr. A.K. Jena, Advocate

-versus-

State of Odisha

…. Opp. Party

Mr. Rajesh Tripathy

Addl. Standing Counsel

CORAM:

JUSTICE S.K. SAHOO

Order No.

ORDER

03.01.2023

03.

This matter is taken up through Hybrid arrangement

(video conferencing/physical mode).

Mr. P.K. Ray, learned counsel files an appearance

memo on behalf of the petitioner Deepak Patil, which is

taken on record.

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Page 2 of 5

Since both the bail applications arise out of one

case i.e. Special G.R. Case No.64 of 2022 pending in the

Court of learned Sessions Judge -cum- Special Judge,

Malkangiri, with the consent of the learned counsel for

the respective parties, both the cases are heard

analogously and disposed of by this common order.

Heard learned counsel for the petitioners and

learned counsel for the State

Both the bail applications under section 439 of

Cr.P.C. are in connection with Special G.R. Case No.64 of

2022 arising out of Kalimela P.S. Case No.107 of 2022

pending in the Court of learned Sessions Judge -cum-

Special Judge, Malkangiri for alleged commission of

offence punishable under section 20(b)(ii)(C) of the

N.D.P.S. Act.

The petitioners moved an application for bail before

the Court of learned Special Judge, Malkangiri which was

rejected on 23.05.2022.

Learned counsel for the petitioners submitted that

the petitioner Deepak Patil is in judicial custody since

19.05.2022 and the petitioner Hari Matam is in judicial

custody since 22.05.2022 and charge sheet has already

been submitted. Nothing was seized from the possession

of the petitioners and even in the first information report,

the names of the petitioners do not find place and the

petitioners have been arrayed as accused basing on the

confessional statement of co-accused before police and

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Page 3 of 5

therefore, the bail application of the petitioners may be

favourably considered.

Learned counsel for the State opposed the prayer

for bail and placed the statements of the witnesses,

namely, Rama Madhi and Bira Madkami.

A three Judge Bench of the Hon’ble Supreme Court

in the case of Tofan Singh -Vrs.- State of Tamil Nadu

reported in (2020) 80 Orissa Criminal Reports 641

was called upon to decide the issues whether the

confessional statement of accused recorded under

section 67 of the N.D.P.S. Act by an officer who is

invested with powers under section 53 of the N.D.P.S.

Act is admissible and whether the same can be taken

into account in order to convict of an accused under the

N.D.P.S. Act. The majority view of the Hon’ble Supreme

Court is that the officers who are invested with the

powers under section 53 of the N.D.P.S. Act are “police

officers” within the meaning of section 25 of the Evidence

Act, as a result of which any confessional statement

made to them would be barred under the provision of

section 25 of the Evidence Act, and cannot be taken into

account in order to convict an accused under the

N.D.P.S. Act. The statement recorded under section 67 of

the N.D.P.S. Act cannot be used as a confessional

statement in the trial of an offence under the N.D.P.S.

Act.

In view of the ratio laid down by the Hon’ble

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Page 4 of 5

Supreme Court and since the only material available

against the petitioners is the confessional statement of

co-accused and on the basis of such statement, this

Court cannot be satisfied that there are reasonable

grounds for believing that the petitioners are guilty of an

offence as enumerated under section 37(1)(b) of the

N.