TMI Blog2011 (4) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... d recorded the statement (Ex.P/12) of the appellant on the same day. PW.8, Mahaveer Singh, at the relevant time was working as Inspector in the Central Bureau of Narcotics and on 19th July, 1997 itself at 23:45 hrs., he was appointed as the Investigating Officer of the case. He produced the appellant before the Special Judge on 20th July, 1997 and at his request appellant was remanded to his custody till 21st July, 1997. He recorded the statement (Ex.P/15) of the appellant on 20th July, 1997. In the statement (Ex.P/12) appellant confessed that the opium seized was brought by him in the hotel. In another confessional statement (Ex.P/15) recorded by the Investigating Officer appellant confessed that he had been working in the hotel for the last two months and brought the opium to the hotel from the house of its owner on his direction. He further confessed that opium tablets used to be sold to the truck drivers at the rate of ₹ 30/- per tola. 3. Opium seized was sent to the Forensic Science Laboratory for examination which found presence of 4.31 per cent of morphine in it. After the confessional statement recorded by the Investigating Officer on 20th July, 1997 he produced th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfers the power of seizure and arrest. Section 51 of the Act, inter alia, provides application of the provisions of Code of Criminal Procedure to all warrants issued and arrests, searches and seizures made under the Act in so far as they are not inconsistent with its provisions. Power to call for information to the officers specified is conferred by Section 67 of the Act and the confessions in the present case have been recorded in exercise of the said power. Section 25 of the Evidence Act makes confessional statement given by an accused before police officers inadmissible in evidence which cannot be brought on record by the prosecution to obtain conviction. Further Section 26 of the Evidence Act in no uncertain terms provides that the confession made while in custody of police officer cannot be proved against accused to support the criminal charge. Therefore, what needs to be considered is as to whether the officers of the Central Bureau of Narcotics, who had recorded the confessions, are police officers within the meaning of Section 25 and 26 of the Evidence Act. True it is that Section 53 of the Act confers powers to the Central Government to invest officers of the specified cat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view. 45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case with which we agree, that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a police officer within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the NDPS Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act. 10. From what ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case. Appellant's first confession was recorded by PW.6, Jagdish Mawal on 19th July, 1997 and he was produced before the Court on 20th July, 1997 and he made no grievance in regard to the confession recorded. Another confession was recorded on 20th July, 1997 and, thereafter, he was produced before the Special Judge on 21st July, 1997 and a copy of the police diary was handed over to him. This obviously would had contained the confessions made by him. No complaint about the same was made then also. Thereafter appellant was produced before the Court several times but he never retracted his confession. The appellant retracted the confession made by him for the first time in his statement under Section 313 of the Code of Criminal Procedure. In our opinion, when an accused is made aware of the confession made by him and he does not make complaint within a reasonable time, same shall be a relevant factor to adjudge as to whether the confession was voluntary or not. Here in the present case appellant was produced before the Court on several dates and at no stage he made any complaint before the Special Judge of any torture or harassment in recording the confession. It is only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s answered accordingly. 15. Now we proceed to consider the last question, i.e, whether the appellant can be held guilty for being in possession or involved in selling the opium so as to attract the mischief of Section 8/18 of the Act. In sum and substance the confession of the appellant is that he was working in the hotel for the last two months and brought the opium from the house of the hotel-owner to the hotel, where it was being sold in tablets to the truck-drivers. In the confession appellant has not stated or for that matter none of the witnesses have deposed that he was involved in selling the opium-tablets. Therefore, the appellant cannot be held guilty for selling opium. Whether in the state of evidence appellant can be held guilty for possessing the opium only on the ground that he brought the opium from the house of the owner to the hotel is another question which requires adjudication. It is trite that to hold a person guilty, possession has to be conscious. Control over the goods is one of the tests to ascertain conscious possession so also the title. Once an article is found in possession of an accused it could be presumed that he was in conscious possession. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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