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2011 (10) TMI 436 - BOMBAY HIGH COURTSmuggled goods - Accused No.1 stated that the bag was containing Charas weighing about 2.500 kgs. and, that, the same was meant for delivery to his customer - it must be observed that one of the Panchas to the alleged search and recovery having turned hostile and the other Panch not having been examined as a witness, the evidence in that regard is only of the officers from the Narcotics Cell - Since it is primarily on the basis of the evidence of the officers from the Narcotics Cell that a conclusion regarding the fact of recovery and seizure of Charas from the possession of Accused No.1 is required to be drawn, their evidence needs to be subjected to very careful scrutiny - the confessional statements made before such officers cannot be excluded from consideration on the ground that their reception in evidence is barred by the provisions of Section 25 of the Evidence Act - There is no onus upon the accused to prove that he did not voluntarily make a confession, which he is alleged to have made. It is for the prosecution to satisfy the Court that it was genuine, and freely and voluntarily made - Even otherwise, such evidence emanating from the accused himself cannot be considered as independent corroboration to the alleged fact of seizure and recovery - in the absence of any recovery from or at their instance, they cannot be held guilty of the alleged offences merely on the basis of their own confessional statements and the confessional statements allegedly made by the coaccused - Appeals are allowed
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