JUDGMENT [ENTITY], J.
1. Charles Baggctt@[ENTITY] has filed this appeal against his conviction under [SECTION] of the [ACT] (hereinafter referred to as the 'Act) for having been found in possession of 100 grams of Heroin, a manufactured drug, on 19.8.1987 in contravention of [SECTION] of the Act, and the sentence of rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/ or in default to undergo further rigorous imprisonment for one year, vide judgment and order dated 25.3.1992 by Shri [ENTITY], learned Additional Sessions Judge, New Delhi.
2. Shri [ENTITY], Intelligence Officer, Narcotics Control Bureau (Narcotics Control Bureau) filed a complaint against [ENTITY] and [ENTITY], appellant in the Court of Additional Chief Metropolitan Magistrate, New Delhi for trial under [SECTION] of the Act.
3. Briefly stated, the averments made in the complaint have been that in pursuance of an information received in the Narcotics Control Bureau that one [ENTITY]@[ENTITY], staying in Lord Guest House, [ENTITY] Safdarjung Development Area, New Delhi would be receiving heroin from [ENTITY], surveillance was kept on the activities of both the aforesaid persons by the officers of Narcotics Control Bureau. On 19.8.1987 further information was received by Shri [ENTITY], complainant, with regard to the supply of 100 grams of heroin to the appellant by the aforesaid [ENTITY] upon which he, accompanied by Mr. [ENTITY] and other officials went to Lord Guest House, wherefrom two independent witnesses, viz. [ENTITY], Manager and [ENTITY] were joined. They all went to the room, which was under the occupation of the appellant, where [ENTITY] was found present. On personal search one pink coloured polythene bag was recovered from the right hand pocket of his pant which contained 28 baloons and each one of the baloons was having some brown powder. It was taken out from the baloons and on weighing found to be 100 grams. The powder was tested with the aid of U.N. Testing Kit and was found to be heroin. Three samples of 5 grams each were taken out as 'sample' and the remaining heroin was separately sealed with the seal of 'NCB 08'. The baloons were also sealed and these were taken into possession after preparing a Panchnama. Room in occupation of the appellant was also searched wherefrom some documents were also seized.
4. The appellant was taken to the office of the Narcotics Control Bureau where his statement under [SECTION] of the Act was recorded wherein the appellant admitted the recovery of 100 grams of heroin from his possession, which he claimed having received from [ENTITY].
5. Aforesaid [ENTITY] was also examined under [SECTION] of the Act wherein he admitted having supplied 100 grams of heroin to [ENTITY] (a) [ENTITY] for which he gave one wrist watch and 3 gold rings. Recovery of the wrist watch and three gold rings was effected at the instance of [ENTITY]. Sample was sent to the Chemical Analyst of the Central Revenue Control Laboratory wherefrom a report was received that it was heroin and in this way the appellant, Along with [ENTITY], were alleged to have committed the offence of possessing heroin.
6. [ENTITY] pleaded not guilty to the charge and claimed trial. In order to prove its case the prosecution examined seven witnesses, viz. [ENTITY], PW/2; [ENTITY], PW/2; [ENTITY], PW/3; [ENTITY], PW/4; [ENTITY], PW/5, [ENTITY], PW/6 and [ENTITY], PW/7. Appellant, when examined under [SECTION] of the [ACT] denied all the allegations against him and pleaded that he was falsely implicated in the case and no recovery was effected from him. It was also claimed that he was illegally and wrongfully arrested by the officers of the Narcotics Control Bureau on 19.8.1987 and was taken to the Narcotics Control Bureau office where he was tortured and given beatings. He has also claimed having been dragged on the floor and about the burning of his knees, besides the giving of beatings around the left ear and that he also sustained an injury on his eye. It was also pleaded that he was not produced in Court or before any Gazetted Officer for 2-1/2 days and was kept in illegal confinement in the office of the Narcotics Control Bureau where he was forced to write a detailed statement.
7. It was further pleaded that a lady named Ms. [ENTITY] was staying with him in the room with whom he had a quarrel and she got him falsely implicated in the case. According to him [ENTITY] was also brought to the office of Narcotics Control Bureau where he too was tortured and his statement was also recorded. He tendered in evidence documents D/1 to D/6.
8. Learned Trial Court after hearing arguments convicted and sentenced the appellant as aforesaid while [ENTITY] was acquitted by giving him benefit of doubt.
9.1 have heard Shri [ENTITY], learned Counsel for the appellant and Shri [ENTITY], learned Counsel for the respondents. I have also carefully gone through the record.
10. Learned Counsel for the appellant has submitted that no recovery was effected from the appellant and there has not been any compliance of the mandatory provisions contained in [SECTION] and [SECTION] of the Act. He has also submitted that there have been discrepancies in the statements of the witnesses with regard to the presence of the witnesses at the time of the alleged recovery and the place where the proceedings about the seizure are alleged to have been taken. He has also submitted that the statement of the appellant recorded under [SECTION] of the Act was an involuntary statement procured by the complainant Intelligence Officer of the Narcotics Control Bureau after giving him severe beatings and subjecting him to torture and at best could be said to be an extra judicial confession and there being no independent evidence, conviction could not be based on a retracted confession. He has also submitted that the appellant has been falsely implicated at the instance of Ms. [ENTITY] and that proper investigation had not been conducted. He has, in this way, submitted that the appellant is entitled to acquittal.
11. Learned Counsel for the respondent has, on the other hand, submitted that there has not been any enmity between the complainant and other witnesses and other witnesses of the complainant on the one side and the appellant on the other side. He has further submitted that there could possibly be no motive for the officials of the Narcotics Control Bureau to falsely implicate the petitioner in the case and that all necessary steps were taken by the officials of the Narcotics Control Bureau and personal search of the appellant resulted in the recovery of the brown powder contained in the baloons which, on testing, was found to be heroin. He has also submitted that the appellant had made a voluntary statement under [SECTION] of the Act without there being any torture and this being a voluntary statement, fully corroborates the case and conviction of the appellant is based on adequate evidence and on sound reasons. A prayer has, therefore, been made that the appeal may be dismissed.
12. I would take up first the submission of the learned Counsel for the appellant about the non-compliance of [SECTION] of the Act. [ENTITY], PW/1, is the Intelligence Officer who was leader of the party and conducted the search proceedings. He has claimed that he, while accompanied by his colleagues [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] reached Lord Guest House wherefrom [ENTITY] were joined and they all went to a room in the guest house, which was under the occupation of [ENTITY]@ [ENTITY]. He went on to state that they conducted the search of his person when he recovered pink coloured polythene packet from the right hand pocket of his pant having 28 baloons from which powder was recovered, which on test with the aid of U.N. Testing Kit, was found to be heroin. He has also said about the taking of 3 samples of 5 grams each and seizure of the same after converting them into sealed parcels regarding which Panchnama Ex. PW/1/A was prepared. He has clearly admitted during cross-examination that neither he nor any one of his colleagues was a Gazetted Officer. He has no where stated that the accused was at any time informed that if he so desired he could be taken to the nearest Gazetted Officer or to the nearest Magistrate. Similar are the statements of [ENTITY], independent witness PW/3; and [ENTITY], Inspector Customs PW/4. There is nothing in the statement of [ENTITY] with regard to making of any such offer to the accused and similarly [ENTITY] is silent on this point. He has also admitted that is not a Gazetted Officer. According to this witness immediately after reaching the room in occupation of the appellant/accused his person was searched.
13. [SECTION] of the Act reads as under:
"(1) When any officer duly authorised under [SECTION] is about to search any person under the provisions of [SECTION], [SECTION] or [SECTION], he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in [SECTION] or to the nearest Magistrate."
14. A perusal of the aforesaid provision makes it abundantly clear that it was incumbent upon the complainant or his colleagues to have given an option to the appellant that if he wanted he could be taken to the nearest Gazetted Officer or the department authorised under [SECTION] or to the nearest Magistrate for being searched in the presence of such an officer and this provision has not been complied with.
15. The short question now for consideration is as to what is the effect of non-compliance of this provision. Answer has recently been provided in the latest pronouncement of the Supreme Court in case of [PRECEDENT] . The following para would be relevant on this subject:
"27.(5) On prior information, the empowered officer or authorised officer while acting under [SECTION] or [SECTION] should comply with the provisions of [SECTION] before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided there under. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the magistrate, would amount to non-compliance of [SECTION] which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact."
16. It is clear that non-compliance of this mandatory provision affects the prosecution case to the extent that even the trial gets vitiated.
17. Learned Counsel for the respondent has submitted that [ENTITY], Intelligence Officer, Narcotics Control Bureau, PW/1, being an officer authorised by the Central Government was competent to examine any person acquainted with the facts and circumstances of a case and that after effecting the recovery of heroin from the appellant that he had examined [ENTITY]@[ENTITY] who had made a voluntary statement Ex. PW /1/E in his own hand and that it has clearly been admitted by him in this statement that 100 grams of heroin/smack was recovered from the baloons taken out from his pocket. He has, thus, submitted that this statement of the appellant would be sufficient to uphold the conviction of the appellant for the offence under [SECTION] of the Act.
18. It is not disputed that [ENTITY], Intelligence Officer of the Narcotics Control Bureau, was not a Police Officer and was authorised to examine the appellant before his arrest relating to the recovery of the heroin. The short question for consideration, however, is as to whether it was a voluntary statement and could conviction of the appellant be sustained on the basis of such extra-judicial confession. There can possibly be no dispute that [ENTITY], PW/1, was not exercising the powers of a Magistrate nor was he recording the confession of the accused. He, as per the case of the prosecution itself, examined the appellant with regard to the facts of recovery before he was arrested and, thus, it could be only an extra judicial confession.
19. Submission of the learned Counsel for the appellant has been that appellant was kept in illegal confinement and was not only given beatings but was tortured and under these circumstances he was forced to write a dictated statement in the shape of Ex. PW/1/E and, thus, submitted that it could not be considered to be a voluntary statement. He has further submitted that when the entire proceedings stand vitiated on account of the non-compliance of the mandatory provisions contained in [SECTION] of the Act, there could possibly be no question of sustaining the conviction of the appellant on such a retracted extra-judicial confession, even if it is considered to have been made by the appellant.
20. Appellant has claimed having been tortured before he was made to write statement Ex. PW/1/E and a suggestion in this regard was made to all the material witnesses of the complainant, which has, of course, been denied. It would, at this stage, be necessary to refer to the documents Ex. D/1 to D/4, produced by the accused. Ex. D/l is the letter by Consular section, Embassy of the United States of America, addressed to the Counsel for the appellant, sending therewith the documents Ex. D/2 to D/6, available on the file of the Embassy. Ex. D/2 is the letter written by the Consular Section, Embassy of the United States of America to the Deputy Secretary (America), Ministry of External Affairs, New Delhi, with regard to the complaint filed by the appellant about having been given beatings for several days before he was produced in Court. Ex. D/3 is a letter by the Consular Section, Embassy of the United States of Ameria to the [ENTITY], stating therein that an official of the Embassy met the appellant in jail on 26.8.87 and made a complaint about the drum of his left ear being perforated requiring surery and a request was made for making arrangement for the medical treatment. Ex. D/4 was, the writing by the appellant with regard to he having been given beatings for2-1/2 days.
21. The case of the appellant was that he was having injuries on his person when sent to the Central Jail. Medical record about his injuries was summoned from the jail but the same could not be produced as all the record was stated to have been destroyed in a fire. An attempt was made by the appellant to summon witnesses from the U.S. Embassy but no one came forward to depose in the case. Obviously it was not possible for the Court to enforce the presence of witnesses from the aforesaid Embassy. However, it is clear from all the aforesaid facts that the appellant has claimed having been given beatings before he was examined and recorded Ex. PW/1/E. A perusal of the statement of PW/1 [ENTITY] shows that the appellant was apprehended at Lord Guest House at about 10.15 pm. on 19.8.87 and after completing the proceedings he was taken to the office of the Narcotics Control Bureau the same night and his statement Ex. PW/1/E was recorded by the appellant between 8.00 am. and 2.00 pm. on 20.8.87 with intervals. He has also admitted that though the appellant was not arrested during this period but he was throughout present with this witness and was allowed to sleep in the room where he continued staying. He did not remember the questions put to the accused while he was writing his statement.
22. The short question in these circumstances would be whether such a statement can be said to be a voluntary statement. The learned Trial Court after considering all the material came to the conclusion that it was not a voluntary statement. I find no reason to disagree with the conclusion of the learned Trial Court on this point on the basis of the material discussed above.
23. In case [PRECEDENT] it has been held that an extra judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. It has also been held that confession will have to be proved just like any other facts and its value would depend upon the veracity of the witness to whom it is made.
24. In case [PRECEDENT] it has been held that law does not require that the evidence of an extra judicial confession should in all cases be corroborated. It has also been held that where the extra judicial confession was proved by an independent witness who was a responsible officer having no animus against the appellant could be believed which was corroborated by other witnesses also.
25. In case [PRECEDENT].
it was reiterated that as ruled in [PRECEDENT] (Supra), law does not require that evidence of an extra judicial confession should in all cases be corroborated though in the said case there was independent corroboration to the statement of the victim.
26. In the instant case on account of the non-compliance of the provisions contained in [SECTION] of the Act, the trial is vitiated. That being the position, the extra judicial confession alleged to have been made by the appellant before the Intelligence Officer being not free from doubt cannot be sufficient for upholding the conviction of the appellant.
27. In view of the aforesaid discussion and conclusion the conviction of the appellant cannot be sustained and it is not necessary to discuss the other grounds urged in the Appeal.
As a result, the appeal is accepted. Conviction and sentence of the appellant arc set aside and [ENTITY] is acquitted. He shall be released forthwith, if not required in any other case.