IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeals No.26/2007 & 53/2008 Decided on : June 3, 2008 Cr.A No.26/2007 Gursharan Sharma …Appellant. Versus Narcotics Control Bureau …Respondent. Cr.A No.53/2008 Yuvraj Gurang …Appellant. Versus Narcotics Control Bureau …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Anup Chitkara, Advocate, in Cr.A No.26/2007 and Mr. Chaman Negi, Advocate, in Cr.A No.53/2008. For the Respondent : Mr. Ashwani Pathak, Central Government Counsel, in both the appeals. Surjit Singh, Judge( Oral ) These two appeals are being disposed of by a common judgment, as the appellants, in both the appeals, are aggrieved by the same judgment, i.e. judgment dated 18th January, 2007, of the trial Court. Appellant Gursharan Sharma (in Criminal Appeal No.26 of 2007) has been convicted of offences, under Sections 18, 20 and 27-A of the Narcotic Drugs and Psychotropic Substances Act and Whether reporters of the local papers may be allowed to see the judgment? …2… sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, each, in respect of offences under Sections 20 and 27-A and rigorous imprisonment for two years and fine of Rs.10,000/-, in respect of offence under Section 18 of the said Act. The other appellant Yuvraj Gurang (in Criminal Appeal No.53 of 2008) has been convicted of offences, under Sections 20 and 18 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-, in respect of offence under Section 20 and rigorous imprisonment for two years and fine of Rs.10,000/-, in respect of offence under Section 18 of the said Act. Both the appellants are aggrieved by the judgment and they have prayed for setting aside the said judgment and ordering their acquittal. 2. Facts, as per prosecution evidence, are as follows. On 25th September, 2004, PW-7 O.P. Sharma, working as Superintendent in the Narcotics Control Bureau at Chandigarh, received secret information that appellant Yuvraj Gurang had kept Charas in his house at village Shogi and that if search was conducted huge quantity of Charas could be recovered. The aforesaid information was received by PW-7 O.P. Sharma, when he was present at Kullu. He informed the Zonal Director of the Bureau at Chandigarh to send a team of Officers of the Bureau to Shogi. He further informed the said Zonal Director that he himself was proceeding to Shogi direct from Kullu. He requested the Zonal Director to direct the team to join him at …3… Shogi. Next morning, at 6 a.m., PW-7 O.P. Sharma reached Shogi. He was joined by P.K. Sharma and PW-2 Balwinder Kumar, both Intelligence Officers, and some other officials of the Bureau, who came from Chandigarh. PW-3 Mohan Singh and PW-4 Ashok Kumar were associated as independent witnesses. PW-3 Mohan Singh is the owner of the building in which appellant Yuvraj Gurang lived those days, in a rented room. In the course of search, two packets, one containing Charas and the other containing opium, were recovered. When questioned, appellant Yuvraj Gurang told PW-2 Balwinder Kumar (Intelligence Officer), the Investigating Officer, that appellant Gursharan Sharma, at whose Dhaba he was employed as a cook, used to finance the business of Charas and opium carried out by him and that he was being paid commission at the rate of Rs.2,000/- per kilogram of Charas and opium, sold by him. That statement of appellant Yuvraj Gurang was reduced into writing. The same is Ex. PW- 1/H. 3. Leaving the two packets of Charas and opium, recovered during the search of the house, with P.K. Sharma, Intelligence Officer, who came from Chandigarh, PW-2 Balwinder Kumar, the Investigating Officer, accompanied by some other officials of the Bureau and PW-7 O.P. Sharma, Superintendent, went to the Dhaba of appellant Gursharan Sharma at Shogi. He was not found there. Search of Dhaba was conducted in the presence of one Ganga Ram, another employee of appellant Gursharan Sharma. 50 grams opium …4… was recovered from beneath the cot used as bed by said Ganga Ram. 4. Five months later appellant Gursharan Sharma was arrested. He was interrogated by PW-2 Balwinder Kumar. He made statement, under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, Ex. PW-1/V-3, wherein he confessed that the business of Charas and opium conducted by appellant Yuvraj Gurang was financed by him. 5. Prosecution examined PW-2 Balwinder Kumar, Intelligence Officer, PW-7 O.P. Sharma, Superintendent, the two independent witnesses, namely PW-3 Mohan Singh, landlord of appellant Yuvraj Gurang, PW-4 Ashok Kumar and PW-8 Balbir Singh to prove the charge. The first four of the abovenamed witnesses were examined to prove the search of the house of appellant Yuvraj Gurang and the recovery of Charas and opium from there and also the alleged confessional statement made by him, under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, and the fifth one, namely PW-8 Balbir Singh, was examined to prove statement, under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, of appellant Gursharan Sharma. 6. Trial Court believed the prosecution version, relying upon the testimony of PW-2 Balwinder Kumar and PW-7 O.P. Sharma, and convicted and sentenced both the appellants, as aforesaid. 7. It has been submitted on behalf of appellant Gursharan Sharma that there is absolutely no evidence linking …5… him with the recovery of Charas and opium from the rented accommodation of appellant Yuvraj Gurang nor is there any evidence indicating that he (appellant Gursharan Sharma) financed the trade of Charas and opium conducted by appellant Yuvraj Gurang, except statement, under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, of appellant Yuvraj Gurang, which too has been retracted by him. As regards appellant Gursharan Sharma’s own statement, it is submitted that the sole independent witness, namely PW-8 Balbir Singh, examined by the prosecution to prove the fact, turned hostile and that that apart appellant Gursharan Sharma himself denied having made such a statement. Therefore, he could not have been convicted and sentenced. 8. As regards the other appellant, Yuvraj Gurang, the submission is that the two independent witnesses, in whose presence search was conducted, having not supported the prosecution version and said appellant having retracted from his statement, under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, he was entitled to be acquitted. 9. We have gone through the record and considered the aforesaid submissions, in the light of the evidence adduced by the parties. 10. As regards the submissions made on behalf of appellant Gursharan Sharma, the evidence on record shows that but for the statement of appellant Yuvraj Gurang Ex. PW- 1/H and appellant Gursharan Sharma’s own statement Ex. …6… PW-1/V-3, there is no evidence connecting him with the Charas and opium recovered from appellant Yuvraj Gurang’s rented accommodation nor is there any evidence indicating that he financed the illicit trade of Charas and opium carried out by appellant Yuvraj Gurang. Appellant Yuvraj Gurang, in his statement, under Section 313 of the Code of Criminal Procedure, denied that he had made statement Ex. PW-1/H that appellant Gursharan Sharma was the financer of his alleged offence. Appellant Gursharan Sharma also denied having made statement Ex. PW-1/V-3. That means, both the appellants have retracted from their alleged confessions. 11. Statement Ex. PW-1/H made by appellant Yuvraj Gurang, implicating appellant Gursharan Sharma, cannot form the basis for convicting appellant Gursharan Sharma of the offence, he was charged with. The said statement is relevant, only under Section 30 of the Indian Evidence Act, which says that confession of an accused “may be taken into consideration” by the Court against other co-accused charged with the same offence and facing trial alongwith the maker of the confession. Words “may be taken into consideration” themselves suggest that confession of a co-accused can be made use of only if there is some other evidence indicative of the involvement of the co-accused (other than the one who made the confessional statement) in the commission of crime. Such a confession, by itself, does not prove the guilt of a co- accused. The reason is that the accused (against whom the confession of his co-accused is sought to be used) does not …7… get the opportunity to cross-examine his co-accused, with respect to such confessional statement. Confession of a co- accused is much weaker evidence compared to the testimony of an approver. It is well established that even the sole testimony of an approver cannot form the basis for conviction, unless corroborated by some other evidence. Moreover, the confession made by the accused, in the present case, has been retracted and, therefore, the question of its being used as evidence against co-accused (appellant Gursharan Sharma) does not arise. 12. As regards appellant Gursharan Sharma’s own confession Ex. PW-1/V-3, the same has been retracted. A retracted confession of an accused is of no help to the prosecution, especially when there is no other evidence in support of the charge. Also, the sole independent witness of the making of alleged confessional statement, examined by the prosecution, namely PW-8 Balbir Singh, did not support the version. 13. Now, turning to the submissions made on behalf of appellant Yuvraj Gurang, there is testimony of PW-2 Balwinder Kumar, Intelligence Officer, who searched the premises and recovered the Charas and the opium, PW-7 O.P. Sharma, Superintendent of Narcotics Control Bureau, who was present at the time of the search, as also PW-3 Mohan Singh, the landlord of the said appellant, which prove, beyond reasonable doubt, that search of the room occupied by the said appellant, as a tenant, in the building of PW-3 Mohan Singh, led to the …8… recovery of Charas and opium, as alleged by the prosecution. We have gone through their testimony. There is no contradiction, worth noticing, in their testimony. Also, we do not find any inherent infirmity or defect in their statements. All of them testified, with one voice, that search of the room occupied by the appellant was conducted early in the morning on 26th September, 2004 and two packets, one containing Charas and the other opium, were recovered and that from the recovered Charas and opium, two samples each were separated and the samples and the bulk stuff were made into separate parcels and the parcels were duly sealed. It also stands proved that one sample each of the Charas and the opium recovered form the room of the appellant were sent to the Chemical Examiner, who vide report, Ex. PW-1/E, opined that the contents of the two samples were of Charas and opium. The aforesaid evidence, thus, proves the charge against appellant Yuvraj Gurang, beyond reasonable doubt. 14. For the foregoing reasons, we allow the appeal filed by appellant Gursharan Sharma, set aside his conviction and sentence and acquit him of the charge. He, being in custody, is ordered to be released immediately, in case his detention is not required in any other case. The other appeal filed by Yuvraj Gurang is dismissed. Both the appeals stand disposed of. ( Surjit Singh ), J June 3, 2008(sd) ( Surinder Singh ), J