TaxTMI 
TaxTMI 
2009 (3) TMI 914
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.... in 5 polythene bag of 2 Kg. each from each of them were said to have been recovered. 3. The purported confessions of the respondent Nos. 1 and 2 were 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. 38000/- out of which Rs. 18000/- has been paid now. Their balance is Rs. 20,000/-. This sum of Rs. 38000/- 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. 3000/- 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. 3000/- to each by way of wages when we came on foot by & carrying 10-000 Kgs of opium and reached Nayapura Phatak then Narcotics officers....
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....at my family has a licence for the said opium. I had surreptitiously kept 7 to 8 kg of opium which I had kept on the well about which none of my family member had any knowledge to this opium by making aboultertion. I make 20-000 Kg gave to 10-00 to Balmukund & Basantilal for dealing to Ranjeet. I further state that I had never done business of selling opium out of greed I did this act. I was totally aware that there are strict provision for keeping illicit opium under N.D.P.S. Act, 1985 but still out of greed I have done this deal. This I have truly state. This I have stated in fully consciousness voluntarily and whatever I have spoken is orally written to which I having read, understanding the same put my signature." 7. Respondent No. 3 was arrested at 6.30 p.m. He purported to have made another confession before the authorities under the Act. He was produced before the Court on 22.06.1998. The investigating officer sought for and obtained his remand for a day which was granted. He purported to have made another statement on 22.06.1998. On his production before the learned Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act") on 2....
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....h, learned counsel appearing on behalf of the appellant, would contend: (i) The High Court committed a serious error insofar as it failed to take into consideration that the prosecution case stood amply proved by PW-8 S.K. Khandelwal who had seized the contraband from the respondent Nos. 1 and 2 and PW-1 Chemical Examiner who had proved this report as also PWs. 5 and 7 being the witnesses of seizure. (ii) Exhibits 20 and 21 being the confessional statements having been recorded in terms of Section 67 of the Act, prior to their arrest, were admissible in evidence not only against themselves but also against their co-accused the respondent No. 3. (iii) The purported retraction of confession by the respondent Nos. 1 and 2 having not been retracted within a reasonable time and having not been proved as to how and in what manner the same was obtained from them, i.e., whether by intimidation or undue influence; could not have been taken into consideration for the purpose of recording a judgment of acquittal. (iv) PW-7 having proved the sealing of the box which was in compliance of Section 57 of the Act and the seal having been found to be intact, the High Court committed a se....
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....in, viz., if the officer has reason to believe from personal knowledge or information given by any person which should be taken down in writing that any drug or psychotropic substance or controlled substance in respect of which an offence punishable under the Act has been committed, he is empowered to exercise his power enumerated in clauses (a) and (b) of Section 42(1) of the Act between sunrise and sunset. Subject to just exceptions, thus, taking down the information in writing is, therefore, very necessary to be complied with. The proviso appended to Section 42(1) of the Act reads as under: "Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief." Sub-section (2) of Section 42 of the Act provides that such an information reduced in writing should be communicated to his immediate superior officers within seventy two hours. The information was received on the previo....
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....erefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine." 22. No legal principle has been laid down therein. No reason has been assigned in support of the conclusions arrived at. If a statement made by an accused while responding to a summons issued to him for obtaining information can be applied against a co-accused, Section 30 of the Evidence Act being not applicable, we have not been shown as to under which other provision thereof, such a confession would be admissible for making the statement of a co-accused rele....
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....be elevated to the status of substantive evidence which can form the basis of conviction of the coaccused. The import of this expression was succinctly explained by the Privy Council in Bhuboni Sahu v. R in the following words: (AIR p. 260) "[T]he court may take the confession into consideration and thereby, no doubt, makes its evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence." 24. We may, keeping in view the aforementioned backdrop, consider the effect of the purported statements made by the respondent Nos. 1 and 2. 25. Section 67 of the Act reads as under: "67 - Power to call for information, etc. Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,-- (a) call for information from any person for the purpose of satisfying himself whether there....
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....a right "that if he requires" to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As Page 2956 already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose - to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must think itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unco....
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....self had stated that he had made the statement on the belief that he would be rewarded and a case where such purported confession had been obtained upon interrogation by High ranking police officials. 33. Yet again in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence [(2003) 8 SCC 449], the retraction was made only when the accused was being examined under Section 313 of the Code of Criminal Procedure. No credence was given to such a retraction made after such a long time. This Court taking into consideration the entire factual matrix involved in the case opined that the confessional statement could not be held to be involuntary and they were voluntarily made. Such is not the case here. We have pointed out several circumstances to show that the accused had been put under interrogation. 34. Reliance has also been placed on Kanhaiyalal v. Union of India [(2008) 4 SCC 668]. In that case, no question was put in cross-examination to the police officer (PW-9) whose evidence had been relied upon by the High Court and, thus, his evidence was stated to be corroborative of the statement made by the accused. However, it is interesting to note that in Francis ....
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....d as a provision containing certain important features, namely: (a) There should be in the first instance statement made and signed by a person before a competent custom official. (b) It must have been made during the course of enquiry and proceedings under the Customs Act. 114. Only when these things are established, a statement made by an accused would become relevant in a prosecution under the Act. Only then, it can be used for the purpose of proving the truth of the facts contained therein. It deals with another category of case which provides for a further clarification. Clause (a) of Sub-section (1) of Section 138B deals with one type of persons and Clause (b) deals with another. The Legislature might have in mind its experience that sometimes witnesses do not support the prosecution case as for example panch witnesses and only in such an event an additional opportunity is afforded to the prosecution to criticize the said witness and to invite a finding from the court not to rely on the assurance of the court on the basis of the statement recorded by the Customs Department and for that purpose it is envisaged that a person may be such whose statement was recorded but....