Narcotic Drugs and Psychotropic Substances Act, 1985 – s.8(c) r/w ss.29, 21, 23(c), 27(A) and s.67 – Intelligence Officer, Narcotic Department received information that at the instance of the appellant 7.4 kgs of heroin would be carried in a Toyota Qualis vehicle – Vehicle apprehended – In terms of the statement of the accused no.2 (co-accused), he met one ‘M’ from Bombay who told him that after taking delivery of the contraband from him, the coaccused was to take the heroin and hand it over to one ‘N, who was to further hand over the heroin to the appellant – Confessional statement of the appellant recorded by PW-1 – Appellant convicted u/s. 8(c) r/w ss.29, 21, 23(c) and 27(A) – Held: Allegation with regard to the appellant is only in the nature of hearsay that ‘M’ had told the co-accused that he had to deliver the contraband to the appellant – Neither the said ‘M’ from Bombay nor ‘N’ have been examined in the case nor they have been arrayed as accused – Therefore, the link evidence is totally missing– Further, admittedly the confession of the appellant was recorded after he was arrested– Issue, whether statement recorded u/s.67 of the NDPS Act can be construed as confessional statement even if the officer who recorded such statement was not to be treated as a police officer, has been referred to larger Bench in Tofan Singh v. State of Tamil Nadu – Present case is proceeded on the premise that the confession is admissible – Even if it is admissible, the Court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession – No such material has been brought on record – Confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence –Other than the two confessional statements, one of the co-accused and the other of the appellant, the prosecution has gathered no evidence to link the appellant with the commission of the offence – Confession of the co-accused, which was said to be a corroborative piece of evidence is of no material value – Evidence not sufficient to convict the appellant – Both the Trial Court and the High Court wrongly convicted the appellant – Judgment of both the Courts below, set aside.
Evidence – Confession – Admissibility of – Discussed. Allowing the appeal, the Court
HELD: 1.1 As far as the present appellant is concerned, the only evidence, if it can be called that, is the statement of a coaccused (accused no.2) and his own alleged confession. The only allegation with regard to appellant is that after taking delivery of the contraband from ‘M’ of Bombay, the co-accused was to take the heroin and hand it over to one ‘N’. The said ‘N’ was to further hand over the heroin to the appellant. Neither the said ‘M’ from Bombay nor ‘N’ have been examined in the case nor they have been arrayed as accused. Therefore, the link evidence is totally missing. Furthermore, the allegation is only in the nature of hearsay that ‘M’ had told the co-accused that he had to deliver the contraband to the present appellant. Even if the confession of the co-accused, A-2 is taken into consideration, it would only prove that ‘M” (from Bombay) had told the co-accused that ‘N’ would handover the contraband to the present appellant. This evidence of a co-accused is a very weak type of evidence which needed to be corroborated by some other evidence. The confession of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been named by the co-accused. In the present case no such corroborative evidence has been led. Admittedly, the confessional statement of the appellant recorded by PW-1 was recorded after he was arrested. The issue, whether a statement recorded under Section 67 of the NDPS Act can be construed as a confessional statement even if the officer who has recorded such statement was not to be treated as a police officer, has been referred to a larger Bench in the case of Tofan Singh v. State of Tamil Nadu. The decision of this case is therefore proceeded on the premise that the confession is admissible. Even if it is admissible, the Court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. No such material has been brought on the record of this case. A confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence. The confession of the co-accused, which was said to be a corroborative piece of evidence, has been discussed above and is of no material value. Therefore, other than the two confessional statements – one of the co-accused and the other of the accused, the prosecution has gathered no evidence to link the appellant with the commission of the offence. As such, without going into the legality of the admissibility of the confession, it is held that even if these confessions are admissible then also the evidence is not sufficient to convict the accused. [Paras 5-7] [469-H; 470-A-H; 471-A-C]
Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31 : [2013] 9 SCR 962 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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