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2018 (3) TMI 866 - HC - Indian LawsSmuggling - transportation of contraband ganja - offences punishable under sections 20(b)(ii)(C) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - The defence plea of the appellants is one of denial and it is further pleaded that nothing was seized from their possession and they have been falsely entangled in the case. Held that: - the only material available on record against the appellant Firoz Alli Khan @ Bulu is the confessional statement of co-accused persons before P.W.14, the Inspector in Charge of Jarada police station - The object of section 25 of the Evidence Act, wherein it is mentioned that no confession made to a police officer, shall be proved as against a person accused of any offence, is that the officer would make every effort to collect the evidence of the commission of the crime and from the power he possesses, he has the capacity to influence, pressurise or subject the person to coercion to extract confession. Confession of a co-accused does not come within the definition of "evidence" as contained in section 3 of the Evidence Act. It cannot be treated as substantive evidence. Law is well settled that the Court cannot start with confession of a co- accused person. It must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on some other evidence. In view of the glaring inconsistencies in the evidence of prosecution witnesses, absence of clinching evidence relating to compliance of mandatory provision under section 42(2) of the N.D.P.S. Act, absence of any cogent materials that the seized articles along with sample packets were kept in safe custody till its production in the Court - it would be very risky to uphold the impugned judgment and order of conviction in respect of the appellants Ramakrushna Sahu, Trilochan Sahu, Subash Mahapatra @ Subash Ch. Mahapatra and Kailash Chandra Panda under section 20(b)(ii)(C) of the N.D.P.S. Act. Appeal allowed.
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