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2015 (4) TMI 687 - HC - CustomsPilferage of 10 kg Heroin from malkhana of Narcotic Control Bureau - Sentence awarded by the trial court under Sections 21(C), Section 29 and Section 32 of the NDPS Act - Reliance on retracted statement - Admission by the co-accused - Held that:- An inculpatory statement, which is in the nature of an admission, can be legitimately retracted but such a retraction can only be accepted if it is made expeditiously namely at the time when the accused is produced before the Magistrate or soon thereafter and then also by putting forth credible facts that would indicate, but would not prove force/coercion. The ultimate principle that governs acceptance of a retraction and a consequent discarding of such a statement, is the facts disclosed in a retraction to primafacie suggest coercion, force or manipulation as opposed to absolute proof of such facts. The facts regarding coercion, force and manipulation must be specific and must broadly, if not specifically set out the acts that constitute coercion and force for otherwise it would be near impossible for a prosecution in such cases to succeed and render meaningless provisions in various statues relating to economic crimes and smuggling of drugs. The facts of the present case do not enable us to accept the retraction as not only was it not proffered when Naseeb Chand was produced before the Magistrate for the first time but the application for retraction is devoid of even rudimentary particulars of any acts that may constitute force or coercion. The mere fact that Naseeb Chand was in the NCB office, is irrelevant as Naseeb Chand is not an ordinary individual. Naseeb Chand is an informer and has been in jail before and, therefore, would not capitulate easily. We, therefore, affirm the opinion recorded by the trial Court that the retraction by Naseeb Chand does not detract from the admission made in his statement recorded under Section 67 of the NDPS Act. At this stage, it would be appropriate to point out that even a retracted statement may, circumstances so permitting, form the basis of a conviction. The trial Court has duly considered various judgments of the Hon'ble Supreme Court on the point of retraction and the consideration of a retracted statement and only thereafter proceeded to rely upon the statement made by Naseeb Chand. We find no reason to differ with the opinion recorded by the trial Court that statement made by Naseeb Chand is sufficient to prove his culpability. Section 30 of the Evidence Act postulates that where more persons than one are tried jointly for the same offence and one such person makes a confession affecting himself and the other accused, a Court may take into consideration such a confession not only against the person making the confession but also against others who have been implicated. The illustration appended below Section 30 of the Evidence Act, makes it amply clear that an admission made by a co-accused being jointly tried against another may be taken into consideration not only against the person making such a confession but also against the other accused being tried with such person. As we have accepted the truth and the evidentiary value of the statement made by Naseeb Chand, have no hesitation in holding that the admission made by Naseeb Chand can and may be read against Saji Mohan to raise an inference of culpability. A perusal of the aforesaid table reveals a marked difference between the contents of the samples as originally tested and during the process of retesting. The fact that in certain cases the contents of diacetyl morphine has increased rather than decreased can be attributed to failure to make a homogeneous mixture but the overall facts that emerge from retesting definitely points to a fact that there was large scale pilferage of narcotics stored in the NCB, Chandigarh. The aforesaid evidence, in our considered opinion, when read alongwith the statements made by the experts who conducted the test further corroborate the statements Ex.P9 and Ex.PW18/H made by Naseeb Chand and Naveen Kumar respectively, and conclusively establishes the guilt of the appellants. As regards Criminal Revisions filed by Virat Dutt Chaudahry and Pushpdeep Singh, we have perused the impugned order as well as submissions made by counsel for the petitioners and as we have already held that a prima-facie perusal of their statements reveals that they may have deposed falsely with respect to the nature of the unclaimed seizure on the intervening night of 27/28.08.2008 and have also made an observation that the facts actually warranted their prosecution as accused alongwith the appellants, find no merit in the revisions - Decided against assessee. The case, in hand, exposes the murky underbelly of government agencies set up to stamp out the menace of narcotics, where the lines between the smuggler and the law enforcer are so blurred as to make it difficult to distinguish one from the other. The shadowy world of informers, spies, drug traffickers, officers of the Customs Department, the Narcotic Bureau are so enmeshed in a web of deceit and greed, as to be indistinguishable. A sad commentary on the functioning of these agencies. The case, in hand, is a glaring example of what fortifies our opinions. - appellants, apart from doubting the legality of a statement, under Section 67 of the NDPS Act, have criticised the statements by alleging that the notice served upon Naseeb Chand does not contain his address or the name of the officer who effected service and it has not been explained as to how notice dated 26.03.2009, issued from Chandigarh was served upon Naseeb Chand at Jammu and he appeared before NCB Chandigarh on 27.03.2009 after travelling a distance of more than 400 kms. Apart from this argument, counsel for the appellants have also submitted that as the statements stood retracted they could not form the basis of an opinion of culpability vis-a-vis any of the appellants. The statement by Naveen Kumar has drawn similar criticism and in addition it is urged that as Naveen Kumar has alleged to have stated that in November, 2008 Saji Mohan and Balwinder Kumar had in his presence taken out several lots of heroin and on the directions of Saji Mohan he and Balwinder Kumar mixed slaked lime in the lots and made another big lot which was handed over to Saji Mohan for showing a big seizure at Chandigarh but a perusal of the chemical analysis reports reveals that the samples were not analysed for presence of slaked lime, thereby in essence, nullifying the statement Ex.PW1/H made by Naveen Kumar under Section 67 of the NDPS Act.
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