TaxTMI 
TaxTMI 
2009 (9) TMI 975
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....d persons. 2. It is submitted by the petitioner, 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 ....
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....evidence against the maker of those statements as well as against the others also, which means that it is admissible against 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....
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.... B.B. Singh would urge that the statements made by the respondent Nos. 1 and 2 purported to be in terms of Section 67 of the Act were admissible against the co- accused. Strong reliance in this behalf has 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 fi....
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....elieved, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession 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 ....
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.... of this Court in State of Punjab v. Baldev Singh AIR 1999 SC 2378, wherein it was held: 28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer 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 mo....
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....nd (iii) the said statement was not corroborated, opined: 5. There is nothing to indicate that Exhibit P-8 had been elicited from A-2 by any coercion, threat or force and, therefore, the learned Single Judge of the High Court had spurned down that contention. Regarding the complaint alleged to have been made by the appellant Naushad on 11-3-1994, 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 ....
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....against the co-accused. 37. In Noor Aga (supra), this Court held that whether the confession was made under duress or coercion and/ or voluntary in nature should be considered having regard to the facts and circumstances of each case. It was opined: 102. Section 25 of the Evidence Act was enacted in the words of Mehmood J in Queen Empress v. Babulal ILR (1884) All. 509 to put a stop to the extortion of confession, by taking 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 co....
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.... paragraph 5 of the same judgment this Court relied on a decision in Piara Singh v. State of Punjab, AIR 1969 SC 961 in which it was observed: An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent 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....
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....991 SC 45, that such a confession is not hit by Section 25 of the Evidence Act. 10. We are of the opinion that while it is true that a confession made before an officer of the Department of Revenue Intelligence under the NDPS Act may not be hit by Section 25 in view of the aforesaid decisions, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under Act. Hence the alleged confession made by the same appellant must be subjected to closer scrutiny than would otherwise 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. ....
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.... by Section 25/26 of the Evidence Act. However, such power is not to cut short the process of investigation by recording confessional statement instead of collecting independent evidence. (ii) If the statements are in the nature of confession, prudence requires that such statement shall be corroborated by an independent evidence. However, if those statements are retracted and it is alleged that they were not voluntary then the onus to prove that there was no retraction or the statements were voluntary would be on the prosecution. (iii) Moreover, the purpose of recording statement under Section 67 of the NDPS Act 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 ....
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....ble ACMM, before whom I was produced on 21st August, 2004 but the DRI officers threatened to implicate my family members if I speak to the judge regarding torture and my innocence, so I could not communicate the same to the Hon'ble Judge fearing my life and further false implication of my family members. Now, I request the Hon'ble Magistrate to kindly look into the matter and save me from the false case. The said statement before the DRI may specifically be treated as retracted. Date : 04 Harpreet Singh Bahad S/o S.Trilochan Singh Bahad Jail No. 3, Tihar, New Delhi LTI of Harpreet Singh Bahad True copy This statement has been made 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 o....
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....garding some drug carriage from Kathua to Delhi. After dictation was over, I was given an arrest memo; I was told that I am arrested on charges of drug traficcking. I started crying and begging them to have mercy and do not implicate an innocent in fabricated false case. 15. There is another aspect of the matter that the summons issued under Section 67 of the NDPS Act goes to show that the first summon was directed to be issued to the petitioner and the two other summons were issued to accused Nos. 1 and 2 but the petitioner was examined later on, and obviously he was in the custody of the DRI officials right from the time he was asked to come and make the statement. The so-called information about the 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 ad....
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.... above, is the purpose of Section 67. Moreover, there is nothing on record which may go to show that there is likelihood of the petitioner involving himself in a similar crime in future after remaining in jail for a period of more than five years. In any event, there is no procedure available with this Court to ensure that the petitioner may or may not indulge in similar crime. There is no material placed on record by the respondents to show that there is likelihood of the petitioner being involved in similar case or the petitioner may commit a similar crime on the basis of intelligence available with them but no such intelligence has been shared by the respondents with this Court. The only thing available with 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 s....