TMI Blog2009 (9) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... decided partly in favor of petitioner. - Bail.Appn. 2211/2008 - - - Dated:- 23-9-2009 - MR. JUSTICE MOOL CHAND GARG FOR THE APPELLANT : MR. KTS TULSI,SR.ADVOCATE WITH MR.S.S.DAS AND MR.MAHEEN PRADHAN, ADVOCATES FOR THE RESPONDENT : MR.SATISH AGGARWAL AND MR. SHIRISH AGGARWAL, ADVOCATES JUDGEMENT MOOL CHAND GARG, J. 1. This order shall dispose of the bail application filed by the petitioner, who is in judicial custody since 20.8.2004 in a complaint case filed by the respondents under Section 21 of the NDPS Act pending before the Additional Chief Metropolitan Magistrate, New Delhi, on the allegations that a huge quantity of contraband i.e. 22.855 kg of heroin was seized from a Maruti Zen car bearing registration No. DL-9CJ-5397, which was parked outside the Hotel Sangam Palace, Meera Bagh, New Delhi on 18.08.2004. The said car was found to be in the possession of two persons viz. Ravinder Singh Mann and Roshan Lal, both co-accused of the petitioner. It is alleged that the recovered contraband were supplied by the present petitioner to the co-accused persons. 2. It is submitted by the petitioner, that the evidence relied upon by the respondent against hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing judgments: i. Union of India Vs. Bal Mukund Ors. JT 2009 (5) SC 45. ii. Francis Stanly @ Stalin Vs. Intelligence officer, Narcotic Control Bureau, Thiruvananthapuram AIR 2007 SC 794. iii. Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569. iv. Raju Premji Vs. Customs NER Shillong Unit, 2009 (7) SCC 569. v. State of Uttranchal Vs. R.K.Gupta, (2007) 1 SCC 355. vi. Ranjit Singh Brahmjeet Singh Sharma Vs. State of Maharashtra Anr., 2005 II AD (Crl) SC 193. vii. Supreme Court Legal Aid Committee Representing Undertrial Prisoners Vs. UOI Ors. - (1994) 6 SCC 731. viii. Noor Aga Vs. State of Punjab Anr. 2008 VIII AD (SC) 435. ix. Kashmir Singh Vs. NCB, Bail Application No. 2314/2006 decided on 18.08.2006. x. Suresh Kumar Sharma Vs. DRI, Bail Application No. 1087/2009 decided on 07.07.2009. 5. The respondents on the other hand have submitted that the statements recorded by the DRI officials, who are not the police officials, under Section 67 of the NDPS Act are admissible in evidence against the maker of those statements as well as against the others also, which means that it is admissible against the petitioner as well as against the co-accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The High Court, in our opinion, therefore, rightly accepted the contention of the said respondent, stating: 12. As far as appellant Amritlal is concerned, he was apprehended only on the basis of the statement made by the appellants Bal Mukund and Basantilal. The only evidence available against him is his confessional statement recorded under Section 67 of the Act. M.R. Narvale (PW-7) has stated in his statement that statement of Amritlal Anjana Ex. P/24 was recorded by him. The contents of Ex. P/24 have not been duly proved by the prosecution. The so called confession has been retracted by the appellant Amritlal. He cannot be convicted only on the basis of Ex. P/24. Even the confessional statements of co-accused cannot form the basis of his conviction. His conviction is not based on the evidence and cannot be sustained. 20. For recording his conviction, confession of the respondent Nos. 1 and 2 had been taken into consideration. 21. Mr. B.B. Singh would urge that the statements made by the respondent Nos. 1 and 2 purported to be in terms of Section 67 of the Act were admissible against the co- accused. Strong reliance in this behalf has been placed on Naresh J. Sukhaw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e do no more than quoting the apt observations of Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of M.P. Before clarifying the law, the learned Judge noted with approval the observations of Sir Lawrence Jenkins that a confession can only be used to lend assurance to other evidence against a co-accused. The legal position was then stated thus: (SCR p. 530) Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that they were interrogated. If they were interrogated while they were in custody, it cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act. We, in the backdrop of the aforementioned events, find it difficult to accept that such statements had been made by them although they had not been put under arrest. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken. 28. This Court in D.K. Basu v. State of West Bengal AIR 1997 SC 610 laid down the law that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. This rule was also invoked by a Constitution Bench of this Court in State of Punjab v. Baldev Singh AIR 1999 SC 2378, wherein it was held: 28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of bail, scrupulous compliance of the statutory provisions must be insisted upon. While considering a case of present nature where two persons may barely read and write Hindi, are said to have been used as carrier containing material of only 1.68% of narcotics, a conviction, in our opinion, should not be based merely on the basis of a statement made under Section 67 of the Act without any independent corroboration particularly in view of the fact that such statements have been retracted. 32. Mr. Singh placed strong reliance upon a decision of this Court in A.K. Mehaboob v. Intelligence Officer, Narcotics Control Bureau 2001 (10) SCC 203. The Bench repelling the arguments that (i) the statement made by the accused had been retracted; (ii) the appellant informed the Magistrate that the said statement had been coaxed out from him; and (iii) the said statement was not corroborated, opined: 5. There is nothing to indicate that Exhibit P-8 had been elicited from A-2 by any coercion, threat or force and, therefore, the learned Single Judge of the High Court had spurned down that contention. Regarding the complaint alleged to have been made by the appellant Naushad on 11-3-1994, we h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enforcement Directorate and Anr. 2007 (8) SCC 254, in a case involving the Foreign Exchange Regulation Act, this Court held: 19. Apart therefrom the High Court was bound to take into consideration the factum of retraction of the confession by the appellant. It is now a well- settled principle of law that a confession of a co- accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom... 36. In Ravindran Alias John v. Superintendent of Customs 2007 (6) SCC 410, this Court opined: 19...The confessional statement of a co-accused could not be used as substantive evidence against the co-accused. 37. In Noor Aga (supra), this Court held that whether the confession was made under duress or coercion and/ or voluntary in nature should be considered having regard to the facts and circumstances of each case. It was opined: 102. Section 25 of the Evidence Act was enacted in the words of Mehmood J in Queen Empress v. Babulal ILR (1884) All. 509 to put a stop to the extortion of confession, by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Stanly (supra), wherein it has been held: 4. A perusal of the facts of the case would show that there is no allegation that the appellant himself was found in possession of any narcotics. The allegation was only that he handed over some narcotics to accused No. 1. The only evidence against the appellant is the retracted statement of accused No. 1 and the appellant's own retracted confession. 5. In Chonampara Chellappan v. State of Kerala, AIR 1979 SC 1761 it has been held (in paragraph 4) that it is equally well settled that one tainted evidence cannot corroborate another tainted evidence because if this is allowed to be done then the very necessity of corroboration is frustrated In paragraph 5 of the same judgment this Court relied on a decision in Piara Singh v. State of Punjab, AIR 1969 SC 961 in which it was observed: An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. It is true that in the present case the confession was made by the accused not before an ordinary police officer, but before an officer, under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') who is an officer of the Department of Revenue Intelligence, and it is held by this Court in Raj Kumar Karwal v. Union of India and Ors. AIR 1991 SC 45, that such a confession is not hit by Section 25 of the Evidence Act. 10. We are of the opinion that while it is true that a confession made before an officer of the Department of Revenue Intelligence under the NDPS Act may not be hit by Section 25 in view of the aforesaid decisions, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under Act. Hence the alleged confession made by the same appellant must be subjected to closer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... base the conviction. However, prudence and practice requires that the Court would seek assurance in getting corroboration from other evidence adduced by the prosecution. 11. Thus, the following conclusions can be drawn on the basis of the observations made by the Apex Court in different judgments (supra) :- (i) The DRI officials/custom officials can record statement under Section 67 of the NDPS Act or under Section 108 of the Customs Act during the course of enquiry with a view to elucidate information about the commission of offence in those acts, which may be permissible despite the bar created by Section 25/26 of the Evidence Act. However, such power is not to cut short the process of investigation by recording confessional statement instead of collecting independent evidence. (ii) If the statements are in the nature of confession, prudence requires that such statement shall be corroborated by an independent evidence. However, if those statements are retracted and it is alleged that they were not voluntary then the onus to prove that there was no retraction or the statements were voluntary would be on the prosecution. (iii) Moreover, the purpose of recording stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite a statement of their choice. The said statement was written as per the dictation by the officers of DRI and one of the officer was Mrs. Sanyogita Mishra. It was not my voluntary statement. I am having torture injuries on my body. I do not know anything with regard to the drugs. Nor I have handled the same at any point of time. It is a false case and I have been implicated falsely due to some conspiracy of a bigger magnitude to save some real culprits. The DRI officers also obtained my signatures on many blank sheets of paper. I wanted to plead my innocence before the Hon'ble ACMM, before whom I was produced on 21st August, 2004 but the DRI officers threatened to implicate my family members if I speak to the judge regarding torture and my innocence, so I could not communicate the same to the Hon'ble Judge fearing my life and further false implication of my family members. Now, I request the Hon'ble Magistrate to kindly look into the matter and save me from the false case. The said statement before the DRI may specifically be treated as retracted. Date : 04 Harpreet Singh Bahad S/o S.Trilochan Singh Bahad Jail No. 3, Tihar, New Delhi LTI of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... few blank papers and asked me to sign on them, now I could not afford to say no . I signed on the blank papers. One of them, who appeared to be the senior said, GOOD AB JO LIKHVATE HAIN CHUP-CHAP LIKH DO, NAHIN TO CASE TO HUM BANA HI LENGE AUR TERE MAA-BAAP AUR BIWI- BACHON KO SADAK PAR LA DENGE . I had no courage to face further torture and ridicule. So, I agreed under duress. I was asked to put on my clothes and then I was taken to lady officer, who initially asked me to write details of my family, education, career etc. and then dictated an episode regarding some drug carriage from Kathua to Delhi. After dictation was over, I was given an arrest memo; I was told that I am arrested on charges of drug traficcking. I started crying and begging them to have mercy and do not implicate an innocent in fabricated false case. 15. There is another aspect of the matter that the summons issued under Section 67 of the NDPS Act goes to show that the first summon was directed to be issued to the petitioner and the two other summons were issued to accused Nos. 1 and 2 but the petitioner was examined later on, and obviously he was in the custody of the DRI officials right from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents that Section 37 has two requirements, that question will arise only if the first requirement is substantiated i.e. there is evidence against the petitioner that he committed the crime which for the reasons stated above is extremely doubtful in view of the inadmissibility of statement of co-accused in the absence of corroboration and in view of the retraction of petitioner of the statement made under Section 67. The said statement has not been recorded to get a new information but it is recorded solely for the purpose of recording confession which, as stated above, is the purpose of Section 67. Moreover, there is nothing on record which may go to show that there is likelihood of the petitioner involving himself in a similar crime in future after remaining in jail for a period of more than five years. In any event, there is no procedure available with this Court to ensure that the petitioner may or may not indulge in similar crime. There is no material placed on record by the respondents to show that there is likelihood of the petitioner being involved in similar case or the petitioner may commit a similar crime on the basis of intelligence available with them but no such intell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king at the entire factual material, as indicated above, it does appear that apart from the so-called confessional statement and the admission that one packet was recovered from under the seat on which the petitioner was seated in the said Maruti 800 vehicle, there is no other evidence available with the prosecution. The so-called confessional statement, at this stage, does not appear to me to be a confession at all. In fact, the statement discloses that the petitioner did not know of the contents of the packet. 17. This being the case, it does appear that the petitioner was not in conscious possession of the said contraband. thereforee, I am satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the offences for which he has been charged. As regards the question as to whether he is likely to commit any offence while on bail, no circumstance has been brought to my notice which would indicate that there is such a likelihood. It is also not the case of the State that the petitioner has been involved in any other NDPS related cases. In this view of the matter, the petitioner is directed to be released on bail on furnishing a personal bond in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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