TMI Blog2019 (1) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... conviction and sentence set aside - appeal allowed. - Criminal Appeal No. 949 of 2018 - - - Dated:- 31-7-2018 - Abhay Manohar Sapre and Uday Umesh Lalit, JJ. Shri Pahlad Singh Sharma, AOR, Krishna K. Shukla, Sandeep Singh and Ms. Kisalaya Shukla, Advocates, for the Petitioner. Shri B. Krishna Prasad, AOR, for the Respondent. JUDGMENT [Judgment per : Uday Umesh Lalit, J.]. - Special Leave to Appeal granted. 2. This appeal challenges the correctness of Judgment and Order dated 21-12-2016 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 798 of 2014 [2018 (361) E.L.T. 293 (P H)] by which the High Court affirmed the conviction of the appellant for the offences punishable under Section 21(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPC Act , for short). 3. According to the Prosecution :- (a) On a specific information that narcotic drugs were going to be transported from Jammu side to Chandigarh via Hoshiarpur in a white colour Indica car bearing Registration No. PB-02AJ-7288, the officers of Directorate of Revenue Intelligence (for short DRT ) laid picket at toll barrier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses. After hearing submissions, the trial Court convicted and sentenced all three accused. The appellant was convicted under Section 21(c) read with Section 29 of the NDPS Act and was sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of ₹ 1 lakh, in default whereof to undergo further rigorous imprisonment for three years. Similar orders for conviction and sentence were recorded against other two accused namely Raj Kumar @ Raju and Surinder Pal Singh. All three convicted accused preferred appeals; namely Criminal Appeal No. D-955-DB-2013 was filed by Raj Kumar @ Raju and Surinder Pal Singh while Criminal Appeal No. D-798-DB-2014 was preferred by the appellant. Both these appeals were heard together by the High Court. 5. As regards the appellant, it was observed by the High Court that he was specifically named by co-accused Raj Kumar @ Raju and Surinder Pal Singh in their statements. Apart from such statements nothing was produced on record to indicate the involvement of the appellant. The High Court however found that the case against the appellant was made out. It was observed : Offence of abetment under Section 29 of NDPS Act stood established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008) 4 SCC 668], as under : 45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case [(1990) 2 SCC 409] 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. 8. Later, another Bench of two Judges of this Court in Tofan Singh v. State of Tamil Nadu [(2013) 16 SCC 31 = 2018 (363) E.L.T. 3 (S.C.)] was of the view that the matter required reconsideration and therefore, directed that the matter be placed before a Larger Bench. It was observed in Tofan Singh (supra) as under : 40. In our view the aforesaid discussion necessitates a re-look into the ratio of Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a co-accused admissible against other accused in certain eventualities; there is no such similar or identical provision in the NDPS Act making such confession admissible against a co-accused. The matter therefore has to be seen in the light of the law laid down by this Court as regards general application of a confession of a co-accused as against other accused. 11. In Kashmira Singh v. State of Madhya Pradesh [(1952) SCR 526], this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. The King [(1949) 76 Indian Appeal 147] and laid down as under : Gurubachan s confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King It does not indeed come within the definition of evidence contained in section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. Their Lordships also point out that it is obvi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar [(1964) 6 SCR 623] wherein it was observed : As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to lend assurance to other evidence against a co-accused . In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this : where there is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Privy Council in Bhuboni Sahu case has been cited with approval. 13. The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused. 14. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence and acquit the appellant. The appellant shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
