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TMI Blog2013 (10) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... sonment for a further period of one year. Identical sentences were imposed for the offences under Section 8 (c) read with Section 21 & 29 of the NDPS Act, 1985 with the direction that both the sentences had to be undergone by the appellant concurrently. 2. Appeal filed by the appellant against the order of the Special Judge, Addl. Special Court, has been dismissed by the High Court of Judicature at Madras vide judgment dated 18.6.2012 thereby maintaining the conviction as well as the sentence awarded by the Special Judge, Addl. Special Court under NDPS Act, Chennai. Dissatisfied and undeterred by the judgments of the Courts below, the appellant preferred the Special Leave Petition in which the leave was granted on 18.1.2013. However, at the same time, bail application preferred by the appellant was rejected and appeal was posted for hearing. This is how the present appeal arises against the impugned judgment dated 18.6.2012 of the High Court of Judicature at Madras. 3. The allegations against the appellant (alongwith five others out of whom two are absconding) were that 5.250 Kgs of heroin was seized from these accused persons which they were carrying and attempting to export out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the accused persons were arrested for commission of offences under the NDPS Act. The two drivers of the ambassador car were, thereafter, allowed to go. The appellant and the other accused persons were arrested by the raiding party. 6. While the four accused persons including the appellant were arrested, the other two accused namely Guddu Singh @ Vikram Singh and Ravi could not be arrested and were absconding. The statements of the arrested accused persons were recorded by Mr. A. Sendhil Murugan, Intelligence Officer. The appellant also gave his statement under Section 67 of the NDPS Act as per which he confessed to the commission of the crime. 7. The case was, thereafter, handed over to Mr. R. Murugan (P.W.2) for investigation. After completing the investigation, he filed a report under Section 173 of the Code of Criminal Procedure, 1973 before the Special Judge under NDPS Act. Charges were framed and the matter went on trial. The prosecution examined as many as 10 witnesses. Among them were Mr. L.S. Aruldoss - Intelligence Officer, NCB (P.W.7), Mr. Gunabalan - Superintendent (P.W.6), Mr. A. Sendhil Murugan (P.W.10), Mr. R. Murugan (P.W.2), Smt. Saraswathy Chakravarthy, Chemic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Railway Station and was arrested and false case was foisted against him due to wordy quarrel with the officer and that Section 67 statement was obtained by force and torture and that he was not carrying any Narcotic Drug. Thereafter, the accused persons produced two witnesses who were examined and one document Ex. D1 was marked. 9. Defence evidence is as follows:- DW.1: The NCB Officers came at about 1.00 p.m on 25.10.2004 and searched the house of A-1 and they obtained his signature and his mother's signature in blank papers by threatening them. A- 2 has not gone anywhere during September and October of 2004 and he was at home doing cloth business. A-1 was taken from his office and arrested. The other accused had never contacted A-2 over phone at any time. DW.2: Dr. Somasundaram has recommended A-1 for treatment for Paralysis at Royapettah Hospital and his case sheet containing 21 pages for treatment from January, 2008 to 25.9.2008 is Ex. D.1. 10. It would be relevant to point that two of the accused persons namely Guddu Singh @ Vikram Singh and Ravi were absconding and they could not be procured during the trial, resulting into splitting up of case as new C.C. No. 9 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . P-77 in which it is stated that Shahid is the person through whom money was sent to Guddu Singh which in fact is within the special knowledge of A-1. In the same manner Ex. P-5 telephone bills were seized from the residence of A-1 and when A-21 was questioned about the telephone numbers Faroth and Sarola A-2 has stated in Ex. P-77 that these numbers belong to Guddu Singh and his brother through which he used to talk about smuggling of heroin. In the English translation of voluntary statement of A-3, Ex. P-78 of which the Hindi version is Ex. P- 10 it is stated that A-3 met Guddu Singh who introduced him to A-4 and told him that A-4 is working in RPF, Bhawani Mandi, Rajasthan and that A-4 would travel with him in uniform in Jaipur Chennai Express and handed over a bag containing 5 Kgs. of heroin stating that it should be handed over to A-1 at Nellore who was already introduced to A-3 on 13.10.2004. The version of A-3 in Ex. P-78 that he travelled in Jaipur Chennai Express from Shamgarh is corroborated by the seizure of two train tickets Ex. P-61 and Ex. P-62 from Shamgarh to Chennai from A-3 and I.D. Card of A-4 Ex. P-63 discloses that A-3 was working in RPF. Ex. P-79 is the volun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to register himself as a foreigner or that he had entered into India without valid and legal documents and thus, he was acquitted of the charge under Section 3(3) of the Passport (Entry into India) Act, 1920 read with Rule 3 (a) as well as under Section 14 of the Foreigners Act, 1946. 14. While discussing the main charge leveled under Section 8(c) read with Section 21(c) and 29 of the NDPS Act, the trial court noted that the defence counsel had sought for discard of the prosecution case on the following grounds: (i) Voluntary statement recorded under Section 67 of the NDPS Act had been retracted and so, they had no evidentiary value. (ii) There was violation of Section 50 of the NDPS Act as there was non-compliance of the provisions thereof . (iii) Driver of the vehicle was not examined which was fatal to the prosecution case. iv) Sample sent for analysis and the seized contraband were not one and the same. (v) There was no link evidence which vitiated the trial. (vi) Names of Accused No. 3 (the appellant) and Accused No. 4 were not mentioned in the information which was received by the Intelligence Officer and, therefore, they were wrongly included in the charge she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jain, learned Counsel appearing for the appellant, that too while taking note of and dealing with those arguments. THE ARGUMENTS: 18. After giving brief description of the prosecution case, in so far as the alleged involvement of the appellant is concerned. Mr. Sushil Kumar Jain drew our attention to the following aspects as per the prosecution case itself: (a) In the present case in the prior secret information with the police, there was no prior information with regard to the appellant herein. The secret information (Ex. P-72) does not disclose the name of the appellant at all. (b) On the date of incident also, the appellant was found sitting on the front seat alongwith the two drivers who have been let off by the investigating agency itself and the ambassador car from which the recoveries had been effected has also not been seized. The said drivers could have been the best witnesses but they have not been examined by the prosecution. (c) The recovery of the narcotic substance was made at the instance of A1 and A2 (and not the appellant herein), who while sitting on the back seat took out a green colour bag from beneath their seat and handed it over to PW.7. The appellant ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 67 is incidental to and intended to enable an officer under Section 42 to effectively exercise his powers of entry, search, seizure or arrest which is provided under Section 42 of the Act. The powers under Section 67 are powers to "call for information" which information can thereafter form the basis for satisfaction of "reasons to believe by personal knowledge or information" appearing in Section 42 and which a jurisdictional basis and a pre-condition to exercise powers under Section 42 of the Act. Absence of reasons to believe or information would render the exercise under Section 42 of the Act bad in law and hence in order to derive the said information power has been conferred under Section 67 to an officer empowered under Section 42. This statement is, therefore, merely "Information" subject to investigation and cannot be treated as substantive evidence. (b) Pitching this argument to the next level, it was submitted that the power under Section 67(c) of the Act is merely a power to examine any person acquainted with the facts and circumstances of the case. Such statements are not required in law to be truthful as provided under Section 161(2) of the Criminal Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of extra judicial convictions. (e) It was also argued that in any case the statement under Section 67 was retracted and as such the confession in the present case is a retracted confession which ought to have been investigated and could have been used only to corroborate other evidence and not as a substantive evidence itself. He submitted that no conviction can be based on uncorroborated retracted confessional statement as held in Noor Aga Vs. State of Punjab 2008 (9) SCALE 681. (II) Next submission of Mr. Jain was that there was complete absence of Fair Investigation and Non-compliance of the provisions of Section 52(3) of the Act- Pointing out that in the present case the appellant had been arrested by PW.2 - R. Murugan after recording statement under Section 67 of the Act, the ld. Counsel made a fervent plea to the effect that it was evident that PW.2 R. Murugan was exercising purported powers conferred to an officer under Section 42 of the Act. It was submitted that Section 52(3) of the Act casts an obligation on an officer empowered under Section 42 of the Act to forward, without unnecessary delay every person arrested or article seized to either an officer-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by PW.6 Gunabalan to his immediate superior officer but instead, in the present case PW.7 Aruldoss has submitted a report to PW.6 Gunabalan under Section 57 of the Act with regard to seizure and PW.2 R. Murugan has submitted report to PW.6 Gunabalan under Section 57 with regard to arrest of the appellant herein. It is, thus, submitted that there is a complete non-compliance of the provisions of Section 57 of the Act which has vitiated the safeguards provided under the Act and as such the appellant could not have been convicted. 20. Arguing on behalf of the prosecutor, Mr. S. Nanda Kumar, learned Counsel submitted that the appellant had given voluntary statement that discloses his involvement in the commission of the offence alongwith other accused persons. In the statement he has categorically admitted having bringing 5.250 kgs of heroin/ narcotic substance from Maniki Village, District Mandsaur, Rajasthan to Chennai by Jaipur - Chennai Express along with other co-accused Badrilal Sharma wearing RPF Uniform till Nelore, Andhra Pradesh. He has also admitted that, thereafter, the other accused namely Guddu Singh @ Vikram Singh and Bapulal Jain picked them in a car and proceeded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was that the depositions of PW.2 - Murugan, Intelligence Officer, PW.6 - Gunabalan, Superintendent and PW.10 - Senthil Murugan, Intelligence Officer establish that they are empowered to act under Section 42, 53 and 67 of the NDPS Act. 23. The learned Counsel also highlighted incriminating facts as per the records viz. the raid team was led by PW.6 - Gunabalan, Superintendent along with the PW.10 A. Senthil Murugan, Intelligence Officer and one Aruldoss, Intelligence officer. Also two other officials conducted the raid and made a search and seizure of the heroin on 24.10.2004 at 12.00 hrs. at GNT Road, 100 ft. road, Madhavaram in Chennai where the vehicles come from Nellore, Andhra Pradesh towards Chennai Junction. After the seizure, PW.2 - Murugan enquired into the matter as per the direction of the superintendent. He also obtained the voluntary statement under Section 67 of the NDPS Act. The accused also gave another statement for supply of heroin to Guddu Singh. The confessional statement of Badrilal Sharma, who travelled alongwith accused/ appellant was also recorded. The confessional statement of absconded accused viz. Babulal Jain is also on the original record. In additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrest without warrant or authorization. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs, control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence fo the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer referred to in Section 42 who is authorized in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act:- (a) Call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provision of this Act or any rule or order made thereunder: (b) Require any person to produce or deliver any document or thing useful or relevant to the enquiry (c) Examine any person acquainted with the facts and circumstances of the case." 26. We have already taken note of the contentions of Counsel for the parties on the interpretation of the aforesaid provisions. To recapitulate in brief, the submission of Mr. Jain is that there is no power in the Section67 of the NDPS Act to either record confessions or substantive evidence which can form basis for conviction of the accused. It is also argued that, in any case, such a statement is not admissible in evidence as the excise official recording the statement is to be treated as "police officer" and thus, the evidential value of the statement recorded before him is hit by the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice a judgment of this Court in the case of Raj Kumar Karwal v. Union of India in support of the contention that even a superintendent of excise under the Bihar and Orissa Excise Act is not a police officer and as such a confessional statement made to him would be admissible in evidence. In the aforesaid case, the question for consideration is whether the officers of the Department of Revenue Intelligence (DRI) invested with powers of officer incharge of a police station under Section 53 are police officers or not within the meaning of Section 25, and this Court answered that those officers are not police officers. This decision is in pari material with the Constitution Bench decision in 1966 and does not in any way detract from the conclusion of this Court in Raja Ram which we have already noticed. In Pon Adithan v. Dy. Director, Narcotics Control Bureau this question had not directly been in issue and the only question that was raised is whether the statement made was under threat and pressure. It is obvious that a statement of confession made under threat and pressure would come within the ambit of Section 24 of the Evidence Act. This decision therefore would not be direct autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 533]. 34. We have also to keep in mind the crucial test to determine whether an officer is a police officer for the purpose of Section 25 of the Evidence Act viz. the "influence or authority" that an officer is capable of exercising over a person from whom a confession is obtained. The term "police officer" has not been defined under the Code or in the Evidence Act and, therefore, the meaning ought to assessed not by equating the powers of the officer sought to be equated with a police officer but from the power he possesses from the perception of the common public to assess his capacity to influence, pressure or coercion on persons who are searched, detained or arrested. The influence exercised has to be, assessed from the consequences that a person is likely to suffer in view of the provisions of the Act under which he is being booked. It, therefore, follows that a police officer is one who:- (i) is considered to be a police officer in "common parlance" keeping into focus the consequences provided under the Act. (ii) is capable of exercising influence or authority over a person from whom a confession is obtained. 35. We would also like to point out that Mr. Sushil Kumar Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and order. According to the learned Counsel, a comparison to the powers of the officers under the provisions of the NDPS Act makes it clear that the duties and responsibilities of the officers empowered under the Act are comparable to those of the police officers and, therefore, they ought to be construed as such. It is submitted that the primary objective of a NDPS Officer is to detect and prevent crime defined under the provisions of the act and thereafter the procedure has been prescribed to bring the offenders to justice. Thus, the officers under the Act are "Police Officers" and statements made to such officers are inadmissible in evidence. 37. He also drew our attention to the following pertinent observation of this Court in the case of State of Punjab v. Barkat Ram; (1962) 3 SCR 338. "Section 5(2) of the Code of Criminal Procedure also contemplates investigation of, or inquiry into, offences under other enactments regulating the manner or place of investigation, that is, if an act creates an offence and regulates the manner and place of investigation or inquiry in regard to the said offence, the procedure prescribed by the Code of Criminal Procedure will give place to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive torture; nor do I doubt that the Legislature, in laying down such stringent rules, regarded the evidence of police officers as untrustworthy, and the object of the rules was to put a stop to the extortion of confessions, by taking away from the police officers as the advantage of proving such exported confessions during the trial of accused persons. " It is, therefore, clear that section 25 of the Evidence Act was enacted to subserve a high purpose and that his to prevent the police from obtaining confessions by force, torture or inducement. The salutary principle underlying the section would apply equally to other officers, by whatever designation they may be known, who have the power and duty to detect and investigate into crimes and is for that purpose in a position to extract confessions from the accused. "..Shortly stated, the main duties of the police are the prevention and detection of crimes. A police officer appointed under the Police Act of 1861 has such powers and duties under the Code of Criminal Procedure, but they are not confined only to such police officers. As the State's power and duties increased manifold, acts which were at one time considered to be innoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is intermixed with a facet of the 1st issue as to whether such a statement is to be treated as statement under Section 161 of the Code or it partakes the character of statement under Section 164 of the Code. 41. As far as this second related issue is concerned we would also like to point out that Mr. Jain argued that provisions of Section 67 of the Act cannot be interpreted in the manner in which the provisions of Section 108 of the Customs Act or Section 14 of the Excise Act had been interpreted by number of judgments and there is a qualitative difference between the two sets of provisions. In so far as Section 108 of the Customs Act is concerned, it gives power to the custom officer to summon persons "to give evidence" and produce documents. Identical power is conferred upon the Central Excise Officer under Section 14 of the Act. However, the wording to Section 67 of the NDPS Act is altogether different. This difference has been pointed out by Andhra Pradesh High Court in the Case of Shahid Khan vs. Director of Revenue Intelligence; 2001 (Criminal Law Journal) 3183. 42. The Registry is accordingly directed to place the matter before Hon'ble the Chief Justice for the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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