TaxTMI 
TaxTMI 
2019 (1) TMI 828
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.... from Jammu side to Chandigarh via Hoshiarpur in a white colour Indica car bearing Registration No. PB-02AJ-7288, the officers of Directorate of Revenue Intelligence (for short 'DRT') laid picket at toll barrier at Hoshiarpur-Garhshankar road. At 10:35 hours, they intercepted an Indica car of white colour which was coming from Hoshiarpur side bearing Registration No. PB-02AJ-7288. The car was being driven by one Raj Kumar @ Raju whereas one Surinder Pal Singh was sitting next to him. To ensure safe search of the car and personal search of occupants, the car was taken to the office of Superintendent, Central Excise Range, Model Town, Hoshiarpur. The officers of DRI served notice under Section 50 of the NDPS Act upon said Raj Kumar @ Raju and Surinder Pal Singh. (b) As desired by said suspects, their personal searches and that of the car were conducted in the presence of independent witnesses and Shri SJS Chugh, Senior Intelligence Officer. Personal searches of the suspects did not result in recovery of any incriminating material. However, when the car was searched, four packets wrapped with yellowish adhesive tapes were found concealed in the door of dickey ....
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....ch statements nothing was produced on record to indicate the involvement of the appellant. The High Court however found that the case against the appellant was made out. It was observed : "Offence of abetment under Section 29 of NDPS Act stood established against accused Surinder Kumar Khanna, showing that he was involved in drug trafficking. He was specifically named by accused Raj Kumar @ Raju and Surinder Pal Singh in their statements. Such statements of accused Raj Kumar @ Raju and Surinder Pal Singh recorded under Section 67 of the NDPS Act are admissible in evidence and are not hit by Section 25 of the Evidence Act because the officers of DRI, who had apprehended Raj Kumar @ Raju and Surinder Pal Singh, travelling in an Indica car and effecting recovery from them do not come within the definition of police officers.". The High Court thus affirmed the order of conviction as recorded against the appellant but reduced the sentence to rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1 lakh, in default whereof to undergo further rigorous imprisonment for 1½ years. Similar orders of sentence were passed in respect of other co-accused namely Raj Kumar @....
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....] was of the view that the matter required reconsideration and therefore, directed that the matter be placed before a Larger Bench. It was observed in Tofan Singh (supra) as under : "40. In our view the aforesaid discussion necessitates a re-look into the ratio of Kanhaiyalal case. It is more so when this Court has already doubted the dicta in Kanhaiyalal in Nirmal Singh Pehlwan [(2011) 12 SCC 298] wherein after noticing both Kanhaiyalal as well as Noor Aga [(2008) 16 SCC 417], this Court observed thus : (Nirmal Singh Pehlwan case, SCC p. 302, para 15). "15. We also see that the Division Bench in Kanhaiyalal case had not examined the principles and the concepts underlying Section 25 of the Evidence Act, 1872 vis-à-vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar case - The latest judgment in point of time is Noor Aga case which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga case particularly as the provisions of Section 50 ....
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....oni Sahu v. The King "It does not indeed come within the definition of 'evidence' contained in section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination." Their Lordships also point out that it is "obviously evidence of a very weak type. ......... . It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities." They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in "support of other evidence." In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the judge refuses to believe him except insofar as he is corroborated? In our opinion, the matter was put succinctly by Sir Lawrence Jenkin....
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.... As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to "lend assurance to other evidence against a co-accused". In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this : "where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence". In Bhuboni Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that "a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which t....