2008 (7) TMI 1020 - HC - Customs

Conviction & Sentence Upheld for NDPS Offenses

REHMATULLAH And YAKUB KHAN Versus NARCOTICS CONTROL BUREAU

The court upheld the conviction and sentence of the appellants for offenses under Section 29 read with Section 21 of the NDPS Act. The appeals were ... Seizure of Heroin - whether the statements under Section 67 NDPS can be relied upon by the prosecution? - retraction of statement - truthfulness of statement Issues Involved:1. Admissibility and voluntariness of statements under Section 67 of the NDPS Act.2. Legality of recording successive statements under Section 67 NDPS Act.3. Truthfulness and reliability of statements made by the accused.4. Procedural compliance in the arrest and transit remand of the accused.Issue-Wise Detailed Analysis:1. Admissibility and Voluntariness of Statements under Section 67 of the NDPS Act:The primary contention by the appellants was that their conviction was based on statements recorded under Section 67 of the NDPS Act, which they argued were made under duress and coercion. The court examined whether these statements were voluntary and truthful. It was noted that there was no substantial evidence to support the claim of physical torture by the officers. The medical examination of the accused did not reveal any injuries. The court referenced the Supreme Court's judgment in *Kanhaiyalal v. Union of India*, which emphasized that a statement under Section 67 NDPS Act could be relied upon as a confessional statement if it was made voluntarily and without any threat or compulsion. The court concluded that the statements in the present case were voluntary and admissible.2. Legality of Recording Successive Statements under Section 67 NDPS Act:The appellants argued that successive statements could not be recorded under Section 67 NDPS Act. The court examined Section 67, which allows officers to call for information, require the production of documents, and examine persons during the course of any enquiry. The court found that the wording of Section 67 does not prohibit the recording of successive statements. The court referenced *Raj Kumar Karwal v. Union of India*, where it was held that statements made to officers of the Department of Revenue Intelligence were not hit by Section 25 of the Evidence Act. The court concluded that successive statements are permissible under Section 67 NDPS Act.3. Truthfulness and Reliability of Statements Made by the Accused:The appellants contended that the statements contained contradictions and were not reliable. The court noted that while there were minor discrepancies, they did not affect the overall truthfulness of the statements. The court referenced *A.K. Mehaboob v. Intelligence Officer NCB*, where the Supreme Court upheld the conviction based on the truthful statement under Section 67 NDPS Act. The court also referenced *Francis Stanly v. Intelligence Officer, NCB*, emphasizing that statements under Section 67 NDPS Act must be scrutinized closely. The court found that the statements were truthful and reliable, and the contradictions were not material.4. Procedural Compliance in the Arrest and Transit Remand of the Accused:The appellants argued that the NCB officers violated the judicial transit remand order by not producing Yakub before the court in Delhi as required. The court examined the evidence and found no substantial cross-examination on this point. The court noted that the officers had followed the procedure by obtaining a transit remand order and that the statements recorded were not shown to be under duress. The court concluded that there was no procedural illegality in the arrest and transit remand of the accused.Conclusion:The court found no merit in the appellants' contentions regarding the voluntariness and truthfulness of the statements under Section 67 NDPS Act, the legality of recording successive statements, and procedural compliance in the arrest and transit remand. The court upheld the conviction and sentence of the appellants for the offences under Section 29 read with Section 21 of the NDPS Act. The appeals were dismissed.