TaxTMI 
TaxTMI 
2009 (9) TMI 975
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....ioner, that the evidence relied upon by the respondent against him is inadmissible as the said evidence comprises of the statement of co-accused persons recorded under Section 67 of the NDPS Act, which cannot be used against him unless it is corroborated by other independent evidence. As far as his own statement is concerned, it is submitted that the same was not a voluntary statement but was taken under duress and in this regard he made an application before the ACMM concerned after he was produced before the ACMM along with medical report which was prepared by the Jail Doctor and which shows that he was tortured by the respondents. As regards the statement of Ravi Bhatia, who appeared as PW-4 before the trial court, it is submitted that the said witness has not supported the case of the prosecution. It is also submitted that even if his statement under Section 67 of the NDPS Act is taken into consideration, the same does not involve the petitioner with the crime. He only said that the vehicle in question was left at his premises for repairs. The vehicle does not belong to the petitioner. 3. It is further submitted by the petitioner that he is in custody for a period of more than....
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....nst the petitioner as well as against the co-accused persons. Regarding non-voluntary nature of the statement made by the petitioner, it is submitted that the retraction was not done immediately but was made only after two days. The medical examination has been done by the Medical Superintendent as per the procedure and the injuries which were found to be on the person of the petitioner are not of such a nature which might be inflicted upon a person after subjecting him to torture. The respondents have relied upon the following judgments:- (i) Abbas Khan Vs. Central Bureau of Narcotics, Criminal Appeal No. 101 of 2005 decided on 14th January, 2009. (ii) Ravinder Singh Vs. State of Maharashtra, 2002 (2) JCC 1059. (iii) Rehamtullah Vs. Narcotics Control Bureau, Criminal Appeal No.90 of 2005 decided on 18th July, 2009. (iv) Raj Kumar Karwal Vs. Kirpal Mohan Virmani, 1991 Cri. L.J. (v) Kanhaiyalal Vs. Union of India, 2008 I AD (Cr.) (S.C.) 277. (vi) Ramesh Chandra Mehta Vs. State of W.B., AIR 1970 SC 940. 6. It is also submitted that the respondents are not to be blamed for the delay in the disposal of the matter inasmuch as on each and every hearing the respondents have b....
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....as been placed on Naresh J. Sukhawani v. Union of India AIR 1996 SC 522 wherein it was held: 4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, 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 ....
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....ssion he would not be prepared to accept. 39. The crucial expression used in Section 30 is "the Court may take into consideration such confession" (emphasis supplied). These words imply that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co- accused. The import of this expression was succinctly explained by the Privy Council in Bhuboni Sahu v. R in the following words: (AIR p. 260) The 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 amounts 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. 8. It would also be relevant to take note of some of the observations made in the aforesaid judgment, which deals with the purport and reasoning as to what Section 67 of the NDPS Act means. The relevant paragraphs are reproduced hereunder:- 25. Section 67 of the Act reads as under: 67 - Power to call for information, etc. Any office....
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....erer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has 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 boa....
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....-1994, we have perused it. His case therein was that he offered himself to be a witness in the case and some reward was offered for it. It was on the said offer that he agreed to sign the said statement.... There exists a distinction between a case where the accused himself 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 AIR 2003 SC 4311, 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 AIR 2008 SC 1044. In that case, no que....
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....ing away from the police officers as the advantage of proving such extorted confession during the trial of accused persons. It was, therefore, enacted to subserve a high purpose. 113. Even otherwise Section 138B of the 1962 Act must be read 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....
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....pendent evidence. Thus, it appears from the above decision that there is some taint in the evidence of an accomplice, and the reason for this obviously is that an accomplice's evidence is looked upon with suspicion because to protect himself he may be inclined to implicate the co-accused. 6. We make it clear that we are not of the opinion that the evidence of the accomplice can never be relied upon, since such evidence is admissible under Section 133 of the Evidence Act. However, Section 133 has to be read along with Section 114(b) of the Evidence Act, and reading them together the law is well settled that the rule of prudence requires that the evidence of an accomplice should ordinarily be corroborated by some other evidence vide Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420. 7. Learned Counsel for the respondent relied upon a decision of this Court in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence AIR 2003 SC 4311, wherein it has been held that if the confessional statement is found to be voluntary and free from pressure, it can be accepted. This is no doubt true, but it all depends on the facts and circumstances of each case and no ha....
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....therwise be required. 11. We have carefully perused the facts of the present case, and we are of the opinion that on the evidence of this particular case it would not be safe to maintain the conviction of the appellant, and he must be given the benefit of reasonable doubt. We make it clear that we are not laying down any general principle in this case, and are deciding it only on the particular facts and circumstances of this case. Hence, this case cannot be a precedent for other cases which may be on their own facts. We are informed that the appellant has already undergone more than six years' imprisonment. 12. On the facts and circumstances of the case, we allow this appeal and set aside the orders of the courts below. The appellant who is in jail shall be set free forthwith unless required in connection with some other case. 10. Insofar as the judgments cited on behalf of the respondents are concerned, these have been taken note of by the Apex Court in the cases of Bal Mukund and Francis Stanly (supra). Insofar as the other judgments cited by the respondents are concerned, it may be observed that: (i) In the case of Ravinder Singh Vs. State of Maharashtra, 2002 (2) JC....
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.... is not to record confession but only to elucidate information. Thus if the prosecution is already in possession of evidence about the involvement of the accused, then recording a statement under Section 67 in the nature of confession would certainly become doubtful and if such a statement is retracted, then the said statement cannot be used in evidence against the accused without any independent corroboration. (iv) The statement of co-accused persons recorded under Section 67 of the NDPS Act also cannot be used unless they are corroborated by the independent evidence. 12. In the present case it has been fairly conceded by learned counsel for the respondents that except for the statement made by the petitioner under Section 67 of the NDPS Act, the only other evidence is the statement of co- accused and the statement of one Ravi Bhatia,who appeared as PW-4 and has not supported the case of the petitioner. Even if his statement recorded under Section 67 of the NDPS Act is taken into consideration, the said statement only goes to show that the vehicle in question was left with him for repairs and not for using the same for any illegal purpose. Thus, this statement will not corrobor....
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....before the Visiting Advocate, Legal Aid Service Authority, Central Jail No. 3, Tihar, New Delhi. 13. It would also be appropriate to take note of the MLC of the petitioner detailing the injuries found on the person of the petitioner when he was medically examined:- "With due respect I want to state that above-mentioned individual entered in Central Jail No.3 on 21.8.2004. As per murtaza record (first medication examination in jail) dated 21.8.2004. There was "Bruse dislocation of back with swelling on scartal region with tendernous and patient has difficulty in sitting". (photocopy enclosed) This is for your information please." The above-quoted application and MLC were then forwarded to the ACMM concerned. 14. It would also be important to take note of the complaint made by the petitioner to the Chairman, National Human Rights Commission, Sardar Patel Bhawan, New Delhi, the relevant portion of which is reproduced hereunder:- On reaching the DRI HQ, I was produced before an officer who without any foreword; threatened me to co-operate with them or face torture. Immediately after that, I was taken to another room where four persons were present. On entering the room I was....
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....involvement of the petitioner was available with the DRI even before his examination as it is the case of the respondents that accused Nos. 1 and 2 in their statements under Section 67 of the NDPS Act implicated the petitioner also and therefore, it cannot be said that he was not in the custody of the DRI officials till his statement was recorded under Section 67 of the NDPS Act. More so, the case of the prosecution rests upon the statements of accused Nos. 1 and 2, who have admitted before the trial court that they have come to know about the implication of the petitioner in this case only after their statements were recorded. The question of issuing summons to the petitioner earlier to accused No.1 and 2 falsifies this assertion of officials of DRI and proves the contention of learned counsel for the petitioner that the petitioner was throughout in detention and the so-called confessional statement, which is something more than what is the purport of Section 67 of the NDPS Act is not voluntary. Therefore, the statement of the petitioner cannot be said to have been recorded voluntarily. Thus, if a statement is recorded under Section 67 of the NDPS Act and is thereafter retracted, ....
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.... this Court is that it can direct the petitioner not to involve himself in a similar crime in future and in case any violation takes place, the respondents will naturally be at liberty to move an application for cancellation of the bail of the petitioner immediately. 17. It will also be important to take note of the judgment of this Court in the case of Kamaljeet Singh Vs. H.K.Pandey (Intelligence Officer, NCB), Bail Application No. 2338/2004 decided on 04.03.2005, where similar objections were raised by the respondent. In that case by relying upon Section 37 of the NDPS Act, the following observations were made:- 11. The sum total of the arguments of the learned counsel for the State based upon the aforesaid decisions is that once possession is established, the presumption under Section 35 and Section 54 would come into play and the Court ought not to overlook the confessional statement of the petitioner, nor should the underlying object of Section 37 as indicated in the case of Babua alias Tazmul Hossain (supra), be ignored. Accordingly, he submitted that the petitioner, who had made a confessional statement and admitted the recovery of the heroin and opium ought not to be rel....