SUPREME COURT OF INDIA
Surinder Kumar Khanna
Intelligence Officer Directorate of Revenue Intelligence
[Criminal Appeal No. 949 of 2018 outset out of Special Leave Petition (Criminal) No. 9816 of 2017]
Uday Umesh Lalit, J.
1. Special Leave to Appeal granted.
2. This interest hurdles a exactness of Judgment and Order antiquated 21.12.2016 upheld by a High Court of Punjab and Haryana during Chandigarh in Criminal Appeal No.798 of 2014 by that a High Court endorsed a self-assurance of a appellant for a offences punishable underneath Section 21(c) review with Section 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPC Act’, for short).
3. According to a Prosecution:-
a. On a specific information that analgesic drugs were going to be ecstatic from Jammu side to Chandigarh around Hoshiarpur in a white colour Indica automobile temperament registration no.PB-02AJ-7288, a officers of Directorate of Revenue Intelligence (for brief ‘DRI’) laid picket during fee separator during Hoshiarpur-Garhshankar road. At 10:35 hours, they intercepted an Indica automobile of white colour that was entrance from Hoshiarpur side temperament registration No.PB-02AJ-7288. The automobile was being driven by one Raj Kumar @ Raju since one Surinder Pal Singh was sitting subsequent to him. To safeguard protected hunt of a automobile and personal hunt of occupants, a automobile was taken to a bureau of Superintendent, Central Excise Range, Model Town, Hoshiarpur. The officers of DRI served notice underneath Section 50 of a NDPS Act on pronounced Raj Kumar @ Raju and Surinder Pal Singh.
b. As elite by pronounced suspects, their personal searches and that of a automobile were conducted in a participation of eccentric witnesses and Shri SJS Chugh, Senior Intelligence Officer. Personal searches of a suspects did not outcome in liberation of any damning material. However, when a automobile was searched, 4 packets wrapped with yellowish glue tapes were found secluded in a doorway of jennet of a car. The sum weight of those 4 packets came to 4.300 kg.
c. Each of those packets was containing white colour granules/powder that gave a really sharp smell. The splash of any parcel was tested, that showed a participation of heroin. The recovered heroin weighing 3.990 kgs was valued during Rs.19,95,000/-. Those 4 packets were taken into possession. Two deputy samples of 5 gms any were taken out from any of a packets as per rules. Indica automobile was also seized by a officers of DRI. Statements of both a suspects were recorded. From their statements, it transpired that 4 packets of heroin had been taken from one Mr. Goldy r/o Vijaypur, Jammu and those packets were to be delivered to a chairman of African start nearby PGI Chandigarh.
d. Initially a censure underneath Sections 21, 22, 23, 28, 29 and 60 of a NDPS Act was lodged opposite pronounced Raj Kumar @ Raju and Surinder Pal Singh. During investigation, a impasse of a benefaction appellant in a drug pole was pronounced to have been done out. After a appellant was arrested, a extra censure was presented opposite him and a matter was taken adult with a categorical complaint. After conference arguments, charges were framed opposite pronounced Raj Kumar @ Raju and Surinder Pal Singh and a appellant for a offences underneath Sections 21, 29 and 60 of a NDPS Act.
4. The prosecution, in support of a box examined 4 witnesses. After conference submissions, a hearing justice convicted and condemned all 3 accused. The appellant was convicted underneath Section 21(c) review with Section 29 of a NDPS Act and was condemned to bear severe seizure for 12 years and to compensate a excellent of Rs.1 lakh, in default whereof to bear serve severe seizure for 3 years. Similar orders for self-assurance and visualisation were available opposite other dual indicted namely Raj Kumar @ Raju and Surinder Pal Singh. All 3 convicted indicted elite 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 elite by a appellant. Both these appeals were listened together by a High Court.
5. As regards a appellant, it was celebrated by a High Court that he was privately named by co-accused Raj Kumar @ Raju and Surinder Pal Singh in their statements. Apart from such statements zero was constructed on record to prove a impasse of a appellant. The High Court however found that a box opposite a appellant was done out. It was observed: “Offence of abetment underneath Section 29 of NDPS Act stood determined opposite indicted Surinder Kumar Khanna, display that he was concerned in drug trafficking. He was privately named by indicted Raj Kumar @ Raju and Surinder Pal Singh in their statements.
Such statements of indicted Raj Kumar @ Raju and Surinder Pal Singh available underneath Section 67 of a NDPS Act are accessible in justification and are not strike by Section 25 of a Evidence Act since a officers of DRI, who had apprehended Raj Kumar @ Raju and Surinder Pal Singh, roving in an Indica automobile and fulfilment liberation from them do not come within a clarification of military officers.”. The High Court so endorsed a sequence of self-assurance as available opposite a appellant yet reduced a visualisation to severe seizure for a duration of 10 years and to compensate excellent of Rs.1 lakh, in default whereof to bear serve severe seizure for 1 1/2 years. Similar orders of visualisation were upheld in honour of other co-accused namely Raj Kumar @ Raju and Surinder Pal Singh.
6. In this interest severe a exactness of a self-assurance and visualisation rendered as opposite a appellant, it was submitted by Mr. Jayant Bhushan, schooled Senior Advocate that detached from a so called statements of co-accused Raj Kumar @ Raju and Surinder Pal Singh there was zero opposite a appellant and that he was conjunction arrested during a site nor was a prohibited component in any proceed compared with him. Mr. Maninder Singh, schooled Additional Solicitor General appearing for a respondent however upheld a visualisation of self-assurance and visualisation rendered opposite a appellant.
He placed on record call information reports display that around a time when a co-accused was arrested, a appellant was in reason with a chairman named Chaudhary from Dubai. The schooled Additional Solicitor General however sincerely supposed that detached from a statements of a coaccused there was zero to couple a appellant with pronounced convicted accused. The call information reports also did not prove that around a time when coaccused were apprehended, a appellant was in reason with possibly of them.
7. For a benefaction purposes, we will ensue on a balance that a statements of co-accused were available underneath and in terms of Section 67 of a NDPS Act. As regards such statements, a dais of dual Judges of this Court after referring to and relying on a progressing Judgments, celebrated in Kanhaiyalal v. Union of India1, as under:
“45. Considering a supplies of Section 67 of a NDPS Act and a views voiced by this Court in Raj Kumar Karwal case2 with that we agree, that an officer vested with a powers of an officer in assign of a military hire underneath Section 53 of a above Act is not a “police officer” within a clarification of Section 25 of a Evidence Act, it is transparent that a matter done underneath Section 67 of a NDPS Act is not a same as a matter done underneath Section 161 of a Code, unless done underneath hazard or coercion. It is this critical difference, that allows a matter done underneath Section 67 of a NDPS Act to be used as a admission opposite a chairman creation it and excludes it from a operation of Sections 24 to 27 of a Evidence Act.”
8. Later, another dais of dual Judges of this Court in Tofan Singh v. State of Tamil Nadu3 was of a perspective that a matter compulsory reconsideration and therefore, destined that a matter be placed before a incomparable bench. It was celebrated in Tofan Singh (supra) as under:
“40. In a perspective a aforesaid contention necessitates a re-look into a ratio of Kanhaiyalal case. It is some-more so when this Court has already doubted a dicta in Kanhaiyalal in Nirmal Singh Pehlwan4 wherein after seeing both Kanhaiyalal as good as Noor Aga5, this Court celebrated thus: (Nirmal Singh Pehlwan case, SCC p. 302, para 15)
“15. We also see that a Division Bench in Kanhaiyalal box had not examined a beliefs and a concepts underlying Section 25 of a Evidence Act, 1872 vis-à-vis Section 108 of a Customs Act and a powers of a Customs Officer who could examine and move for hearing an indicted in a analgesic matter. The pronounced box relied exclusively on a visualisation in Raj Kumar case. The latest visualisation in indicate of time is Noor Aga box that has dealt really elaborately with this matter. We so feel it would be correct for us to follow a ratio of a visualisation in Noor Aga box quite as a supplies of Section 50 of a Act that are imperative have also not been complied with.”
41. For a aforesaid reasons, we are of a perspective that a matter needs to be referred to a incomparable Bench for reconsideration of a emanate as to either a officer questioning a matter underneath a NDPS Act would validate as military officer or not. 42. In this context, a other associated emanate viz. either a matter available by a questioning officer underneath Section 67 of a Act can be treated as confessional matter or not, even if a officer is not treated as military officer also needs to be referred to a incomparable Bench, inasmuch as it is intermixed with a facet of a 1st emanate as to either such a matter is to be treated as matter underneath Section 161 of a Code or it partakes a impression of matter underneath Section 164 of a Code.”
9. Thus a emanate either matter available underneath Section 67 of a NDPS Act can be construed as a confessional matter even if a officer who available such matter was not to be treated as a military officer, has now been referred to a incomparable Bench.
10. Even if we are to ensue on a grounds that such matter underneath Section 67 of a NDPS Act might volume to confession, in a view, certain additional facilities contingency be determined before such a confessional matter could be relied on opposite a co-accused. It is notable that distinct Section 15 of Terrorist and Disruptive Activities Act, 19876 that privately creates admission of a co-accused accessible opposite other indicted in certain eventualities; there is no such matching or matching sustenance in a NDPS Act creation such admission accessible opposite a co- accused. The matter therefore has to be seen in a light of a law laid down by this Court as regards ubiquitous focus of a admission of a coaccused as opposite other accused.
11. In Kashmira Singh v. State of Madhya Pradesh7, this Court relied on a preference of a Privy Council in Bhuboni Sahu v. The King8 and laid down as under: “Gurubachan’s admission has played an critical partial in implicating a appellant, and a doubt during once arises, how distant and in what proceed a admission of an indicted chairman can be used opposite a co-accused? It is clear that it is not justification in a typical clarity of a tenure because, as a Privy Council contend in Bhuboni Sahu v. The King
“It does not indeed come within a clarification of” ‘evidence’ contained in territory 3 of a Evidence Act., It is not compulsory to be given on oath, nor in a participation of a accused, and it can't be tested by crossexamination.” Their Lordships also indicate out that it is “obviously justification of a really diseased type……… It is a most weaker form of justification than a justification of an approver, that is not theme to any of those infirmities.” They settled in serve that such a admission can't be done tile substructure of a self-assurance and can usually be used in “support of other evidence.” In perspective of these remarks it would be purposeless to cover a same ground, yet we feel it is compulsory to teach this serve as misapprehension still exists.
The doubt is, in what proceed can it be used in support of other evidence? Can it be used to fill in blank gaps? Can it be used to uphold an confederate or, as in a benefaction case, a declare who, yet not an accomplice, is placed in a same difficulty per credit since a decider refuses to trust him solely in so distant as he is advanced ? In a opinion, a matter was put succinctly by Sir ‘Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty9 where he pronounced that such a admission can usually be used to “lend declaration to other justification opposite a co-accused “or, to put it in another way, as Reilly J. did in In re Periyaswami Moopan10 “the sustenance goes no serve than this–where there is justification opposite a co-accused sufficient, if believed, to support his conviction, afterwards a kind of admission de- scribed in territory 30 might be thrown into a scale as an additional reason for desiring that evidence.”
Translating these observations into petrify terms they come to this. The correct proceed to proceed a box of this kind is, first, to organise a justification opposite a indicted incompatible a admission altogether from care and see whether, if it is believed, a self-assurance could safely be shaped on it. If it is able of faith exclusively of a confession, afterwards of march it is not compulsory to call a admission in aid. But cases might arise where a decider is not prepared to act on a other justification as it stands even though, if believed, it would be sufficient to means a conviction. In such an eventuality a decider might call in assist a admission and use it to lend declaration to a other justification and so waken himself in desiring what yet a assist of a admission he would not be prepared to accept.”
12. The law laid down in Kashmira Singh (supra) was authorized by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar11 wherein it was observed: “As we have already indicated, this doubt has been deliberate on several occasions by legal decisions and it has been consistently reason that a admission can't be treated as justification that is concrete justification opposite a co-accused person.
In traffic with a rapist box where a assign relies on a admission of one indicted chairman opposite another indicted person, a correct proceed to adopt is to cruise a other justification opposite such an indicted person, and if a pronounced justification appears to be acceptable and a justice is prone to reason that a pronounced justification might means a assign framed opposite a pronounced indicted person, a justice turns to a admission with a perspective to assure itself that a end that it is prone to pull from a other justification is right. As was celebrated by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a admission can usually be used to “lend declaration to other justification opposite a co-accused”.
In re Periyaswami Moopan Reilly. J., celebrated that a sustenance of Section 30 goes not serve than this: “where there is justification opposite a co-accused sufficient, if believed, to support his conviction, afterwards a kind of admission described in Section 30 might be thrown into a scale as an additional reason for desiring that evidence”. In Bhuboni Sahu v. King a Privy Council has voiced a same view. Sir John Beaumont who spoke for a Board, celebrated that “a admission of a co-accused is apparently justification of a really diseased type. It does not indeed come within a clarification of “evidence” contained in Section 3 of a Evidence Act. It is not compulsory to be given on oath, nor in a participation of a accused, and it can't be tested by cross-examination.
It is a most weaker form of justification than a justification of an approver, that is not theme to any of those infirmities. Section 30, however, provides that a justice might take a admission into care and thereby, no doubt, creates it justification on that a justice might act; yet a territory does not contend that a admission is to volume to proof. Clearly there contingency be other evidence. The admission is usually one component in a care of all a contribution valid a case; it can be put into a scale and weighed with a other evidence”.
It would be beheld that as a outcome of a supplies contained in Section 30, a admission has no doubt to be regarded as amounting to justification in a ubiquitous way, since whatever is deliberate by a justice is evidence; resources that are deliberate by a justice as good as probabilities do volume to justification in that general sense. Thus, yet admission might be regarded as justification in that general clarity since of a supplies of Section 30, a fact stays that it is not justification as tangible by Section 3 of a Act.
The result, therefore, is that in traffic with a box opposite an indicted person, a justice can't start with a admission of a co-accused person; it contingency start with other justification adduced by a assign and after it has shaped a opinion with courtesy to a peculiarity and outcome of a pronounced evidence, afterwards it is slight to spin to a admission in sequence to accept declaration to a end of shame that a legal mind is about to strech on a pronounced other evidence. That, quickly stated, is a outcome of a supplies contained in Section 30.
The same perspective has been voiced by this Court in Kashmira Singh v. State of Madhya Pradesh where a preference of a Privy Council in Bhuboni Sahu box has been cited with approval.”
13. The law so laid down has always been followed by this Court solely in cases where there is a specific sustenance in law creation such admission of a co-accused accessible opposite another accused.
14. In a benefaction box it is supposed that detached from a aforesaid statements of co-accused there is no component suggesting impasse of a appellant in a crime in question.
We are so left with usually one square of component that is a confessional statements of a co-accused as settled above. On a norm of law laid down by this Court such a confessional matter of a co-accused can't by itself be taken as a concrete square of justification opposite another co-accused and can during best be used or employed in sequence to lend declaration to a Court. In a deficiency of any concrete justification it would be inapt to bottom a self-assurance of a appellant quite on a statements of co-accused.
The appellant is therefore entitled to be clear of a charges intended opposite him. We, therefore, accept this appeal, set aside a orders of self-assurance and visualisation and justify a appellant. The appellant shall be expelled forthwith unless his control is compulsory in tie with any other offence.
(Abhay Manohar Sapre)
(Uday Umesh Lalit)
July 31, 2018