Narcotic Drugs and Psychotropic Substances Act, 1985 – s. 67 – Confession statement made by an accused u/s. 67 before an officer of Narcotics Control Bureau – Admissibility in evidence: Held: Statement made by an accused and recorded u/s. 67 cannot be used as a confessional statement in the trial of an offence under the NDPS Act – Any confessional statement made by an accused to an officer invested with the powers u/s. 53 of the NDPS Act, is barred for the reason that such officers are “police officers” within the meaning of s. 25 of the Evidence Act – Evidence Act, 1872 – s. 25. [Para 10]
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.
54 – Presumption from possession of illicit articles – “Proof beyond reasonable doubt vis-a-vis “preponderance of probability”: Held: Initial burden is cast on the prosecution to establish the essential factors on which its case is premised – After the prosecution discharges the said burden, the onus shifts to the accused to prove his innocence – However, the standard of proof required for the accused to prove his innocence, is not as high as expected of the prosecution – For attracting the provisions of s. 54, it is essential for the prosecution to establish the element of possession of contraband by the accused for the burden to shift to the accused to prove his innocence – This aspect of possession of the contraband has to be proved by the prosecution beyond reasonable doubt. [Paras 15 and 16] Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.
67 and 54 – Two persons convicted for possession of commercial quantity of heroin – Out of the two, only accused was apprehended by Narcotics Control Bureau-NCB from the spot where Naka laid and co-accused was arrested later – Co-accused being repeated offender sentenced to death u/s. 21(c) rw s. 31A(1a) which was modified to
14 years of rigorous imprisonment – Accused sentenced u/s. 21(c) to rigorous imprisonment for twelve years with fine, by the courts below – Sustainability of:
Held: Confessional statement of the accused recorded by the NCB officers u/s. 67, who had attributed a role to co-accused and subsequently statement of co-accused was recorded u/s. 67 are rejected as it cannot be used as a confessional statement having been recorded by the NCB officials who are to be treated as “police officers” u/s. 25 of the Evidence Act – Furthermore, no other independent incriminating evidence for convicting co-accused, thus, his conviction cannot be sustained – As regards the accused, the conviction does not hinge solely on his confessional statement made to the NCB officials – His case rests on the testimonies of prosecution witnesses, which are consistent and there are no material contradictions in their depositions to extend any benefit to the accused – Plea by the accused that the prosecution failed to establish a prima facie case against him and thus, the burden of proving his innocence did not shift back to him cannot be accepted – As regards the plea of failure to establish foundational facts, the prosecution was able to discharge the onus cast on it to prove the foundational facts – Prosecution produced adequate evidence to prove beyond reasonable doubt that the accused had the knowledge of the car being used for transporting narcotics, the presumption u/s. 35 would have to be drawn against him to hold that he had a culpable mental state – As regards, the plea of the accused being in the custody of the NCB much before the naka was laid, there has been no arbitrariness or undue favour shown to the prosecution witnesses from the accused to claim any bias – In view thereof, accused failed to make out a case for acquittal, thus, order of conviction and the sentence imposed by the courts below upheld, however, the co-accused stands acquitted. [Paras 12-14, 19, 23, 27]
Code of Criminal Procedure, 1973 – s. 100(4) – Persons in charge of closed place to allow search – Testimony of independent witness – Plea of unreliability in view of s. 100(4):
Held: Sub-section (4) of s. 100 provides that to maintain the purity of the process, before undertaking a search, a couple of independent and respectable inhabitants of the locality where the place to be searched is located, be joined as witnesses to the search – On facts, when Naka was laid by Narcotics Control Bureau, independent witness was associated with investigation – Plea of unreliability of the testimony of the independent witness, in view of the provisions u/s. 100 (4) cannot be accepted. [Paras 24, 25]
LIST OF CITATIONS AND OTHER REFERENCES
Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1: [2020] 12 SCR
583 – relied on.
Kanhaiyalal vs. Union of India 2008 (4) SCC 668: [2008] 1 SCR 350; Ram Singh vs. Central Bureau of Narcotics (2011) 11 SCC 347: [2011] 5 SCR 967; Raj Kumar Karwal vs. Union of India (1990) 2 SCC 409: [1990]
2 SCR 63; Ritesh Chakarvarti v. State of M.P. (2006) 12 SCC 321: [2006] 6 Suppl. SCR 772 ; Noor Aga v. State of Punjab and Another (2008) 16 SCC 417: [2008] 10 SCR 379; Bhola Singh v. State of Punjab (2011) 11 SCC 653:[2011] 2 SCR 642; State of Delhi v. Ram Avatar alias Rama (2011) 12 SCC 207: [2011] 7 SCR 1129; Gorak Nath Prasad v. State of Bihar (2018)
2 SCC 305; Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31: [2013]
9 SCR 962; State of Punjab v. Baldev Singh (1999) 6 SCC 172: [1999] 3 SCR 977; Dudh Nath Pandey v. State of Uttar Pradesh (1981) 2 SCC 166: [1981] 2 SCR 771, State of Haryana v. Ram Singh (2002) 2 SCC 426: [2002]
1 SCR 208; Adambhai Sulemanbhai Ajmeri and Others v. State of Gujarat (2014) 7 SCC 716: [2014] 7 SCR 48; Jumi and Others v. State of Haryana (2014) 11 SCC 355: [2014] 3 SCR 673 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
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