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2023 (4) TMI 1188 - SUPREME COURTSmuggling - Heroin - reliance placed upon the confessional statement of the appellant recorded under Section 67 of the NDPS Act before the officers of the NCB who are invested with the powers under Section 53 of the NDPS Act - reliability of such statements - HELD THAT:- Admittedly, the confessional statements were made by the accused to an officer empowered under Section 53 of the NDPS Act and hence, in view of the bar of Section 25 of the Evidence Act, the confessional statements will have to be kept out of consideration. A finding was recorded by the High Court that the prosecution has not proved that the witnesses are dead or cannot be found or are incapable of giving evidence or kept out of the way of the accused or their presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. These findings are based on the perusal of the entire record. There is no explanation offered by the prosecution about their failure to examine these two independent material witnesses. Hence, the statements of both witnesses are not admissible in evidence. Admittedly, PW2 drew two samples from each of the packets of the contraband found in the hotel room and kept them in two separate plastic covers. These covers were sealed and the remaining contraband was also sealed. Thus, the prosecution claims that the samples were prepared even before the packets were sent to the Station House Officer. The submission of the learned senior counsel appearing for the appellant in Criminal Appeal 451 of 2011 was that a grave suspicion is created about the prosecution’s case as this action by the PW2, was contrary to Section 52A of NDPS Act - the act of PW2 of drawing samples from all the packets at the time of seizure is not in conformity with what is held by this Court in the case of Mohanlal2. This creates a serious doubt about the prosecution’s case that the substance recovered was contraband. It cannot be said that the contraband was found in the custody of accused no.1. At the highest, it was found in the room occupied by accused no.4. It is noted here that accused no.4 has been convicted by the High Court only for the offence punishable under Section 30 of the NDPS Act which is for the offence of making preparation to do or omitting to do anything which constitutes an offence punishable under the provisions of Sections 19, 24 and 27A. The prosecution has not produced any evidence to show that the contraband was brought to the room of the accused no.4 by the other three accused persons or anyone of them. It is not the case that the room of accused no.4 was in possession of accused nos.1 to 3 who were staying in different hotels. The case of the prosecution is not free from suspicion. The prosecution has not proved beyond a reasonable doubt that the appellants in these two appeals were in possession of the contraband or that they brought the contraband to the hotel room of the accused no.4 - the appellants are acquitted of the offences alleged against them - Appeal allowed.
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