FRANCIS STANLY@ STALIN

INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU,

THIRUV ANANTHAPURAM

DECEMBER 14, 2006

[S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985-Prosecution under-Accused not found in possession of contraband articles-Prosecution C on the basis of statement of accomplice and his own confessional statement- Statement made before an officer authorized under the Act-Conviction by courts below-On appeal, held: Conviction not justified-Accused entitled to benefit of doubt-Jn view of the facts of the case statement of accomplice and confession of accused cannot be relied upon.

Criminal Trial:

Evidence of accomplice-Admissibility-Held: Such evidence is admissible under Section I 33 of Evidence Act-However, as a rule of prudence, such evidence should ordinarily be corroborated by some other evidence-

Evidence Act, 1872-Sections 133 and 114(b).

Confessional statement-Made before authorized officer-Reliance on-- Held: Though such statement is not hit by Section 25 of Evidence Act, yet it must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating power under the Act-Evidence Act, 1872-Section 25.

Accused No. 1 was found in possession of contraband articles. Accused No. 1 in his statement mentioned name of appellant-accused-2 alleging that he had handed over the articles to Accused-I. Appellant-accused gave his confessional statement. He was prosecuted. He denied the charges. He was G held guilty by courts below and convicted under Narcotic Drugs and Psychotropic Substances Act, 1985.

Allowing the appeal, the Court

HELD: 1. On the evidence of this case, it would not be safe to maintain H 977

A the conviction of the appellant, and he must be given the benefit of reasonable doubt. There is no allegation that the appellant himself was found in possession of any narcotics to accused No. 1. The only evidence against the appellant is the retracted statement of accused No. 1 and the appellant's own retracted confession. (982-E; 980-E-FJ

2. There is some taint in the evidence of an accomplice, and the reason for this obviously is that an accomplice's evidence is looked upon with suspicion because to protect himself he may oe inclined to implicate the coaccused. It cannot be said that the evic!ence of the accomplice can never be relied upon, since such evidence is admissible under Section 133 of the C Evidence Act. However, Section 133 has to be read along with Section 114(b) of the Evidence Act, and reading them together the law is well settled that the rule of prudence required that .the evidence of an accomplice should ordinarily be corroborated by some other evidence. (981-A-C)

Chonampara Chellappan v. State of Kera/a, AIR (1979) SC (1761); D Piara Eingh v. State of Punjab, (1969) 3 SCR 236 and Suresh Chandra Bahri

v. State of Bihar, AIR (1994) SC 2420, relied on.

3. While it is true that a confession made before an officer under the NDPS Act may not be hit by Section 25 of the Evidence Act, yet such a confession must be subject to closer scrutiny than a confession made to private E citizens or officials who do not have investigating powers under the Act. Hence the alleged confession made by the same appellant must be subjected to closer scrutiny than would otherwise be required. (982-C-E)

M Prabhulal v_. Assistant Director of Revenue Intelligence, (200~) 8 SCC 449; T. Thomson v. State of Kera/a and Anr., (2002) 9 SCC 618; State F (NCT of Delhi) v. Navjot Sandhu @ Afasan Guru, (2005) 11 SCC 600 and Raj Kumar Karwal v. Union of India and Ors., (1990) 2 SCC 409, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 996 of

G 2006.

From the final Judgment and Order dated 5.4.2004 of the High Court of Kerala at Emakulam in Crl. A. No. 217 of 2002.

B. Kumar, V. Prabhakar, Ramjee Prasad and Revathy Raghavan for the H Appellant.

FRANCIS STANLY !ff STALIN'' INTELLIGENCE OFFICER. NARCOTIC CONTROL BUREAU (MARKANDEY KATJU. J.( 979

A. Sharan, A.S.G., Binu Tamta and Sushma Suri for the Respondent. A

The Judgment of the Court was delivered by

MARKANDEY KAT JU, J. This appeal has been filed against the impugned judgment of the Kerala High Court dated 5.4.2004 in Criminal Appeal No. 217 of 2002.

Heard learned counsel for the parties and perused the record.

The appellant was accused No. 2 in the criminal case under the NDPS Act with which we are concerned.

The prosecution case briefly stated is that on 1.10.2000 at 3.45 P.M., PW7, Radhesh, Intelligence Officer, received information that one person c

was standing in the parking area between Gandhi Park and Pattomthanu Pillai Park at East Fort, Thiruvananthapuram waiting for somebody to dispose of about one kilogram of heroin which was in his possession. PW7 recorded the information and submitted Ext. PIO report to PW5, the Superintendent, D Narcotic Control Bureau Regional Intelligence Unit, Thiruvananthapuram. PW7 alongwith the informant proceeded to the place where the 1st accused was waiting and the lst accused was shown to PW7 by the informant. PW5 alongwith PW4 and PW6 reached near Pattomthanu Pillai Park about 4.30 P.M. and PW7 pointed out the 1st accused to them. PWs 4, 5 and 6 alongwith E the witnesses approached the accused who was holding M.O. 2 (a) bag. PWs 4 to 6 disclosed their identity and expressed their desire to search the 1st accused. He was also informed of his right to be searched in the presence of a gazetted officer or a Magistrate. The lst accused waived the right and expressed his willingness to be searched oy the officers. When PW! asked the lst accused whether he was possessing any narcotic drug, the lst accused F handed over M.O. 2 (a) bag to PW4. The bag was found to contain M.0.2(d) white full shirt and a bundle of M.O. 2 (b) and M.0.2 (c) lungies. When the lungies were removed, a transparent polythene cover containing brownish powder was recovered. PW4 opened the polythene packet and took a pinch of the powder and tested it with a Field Drug Detection Kit. Since the test G gave positive result, PW4 seized the narcotic drug. The polythene cover and the drug were found to weigh 1.110 kilograms. Two samples were taken and the samples were separately packed and sealed. The remaining drug was also separately packed and sealed.

PW4 prepared Ext. Pl Mahazar.

At the request of PW4, PW6 served Ext. P2 summons on the lst accused directing him to appear ori the N.C.B. Office at 7 P.M. on the same day. Since the 1st H

A accused did not know the place, PW7 was asked to accompany the lst accused to the N.C.B. Office. In obedience to the summons the lst accused appeared before the N.C.B. Office and gave Ext. Pl2 statement in Tamil which was recorded by PW6. Thereafter PW6 arrested the lst accused. On the next day the I st accused was produced before the Magistrate who remanded him to the Sub Jail. Since the name of the 2nd accused was also mentioned in B Ext. Pl2 statement, PW5 proceeded to Idinthikara ofThirunalveli District on the morning of 2.10.2000 and Ext. Pl5 summons was served on the 2nd accused directing him to appear before the N.C.B. Office at Thiruvananthapuram at 5 P.M. on that day. The 2nd accused appeared before the N.C.B. Office in the evening and gave Ext. Pl6 statement in his own handwriting. PW6 C arrested the 2nd accused. The 2nd accused was also produced before the Magistrate, who remanded him to the Sub Jail. The investigation was handed over to PW 7. The samples were sent to the Customs Laboratory, Cochin and Ext. P5 report was obtained. After completing the investigation, PW7 lodged the complaint before the Court.

D The accused denied the charge. Thereupon the prosecution examined

PWs I to 7, marked Exts. Pl to P20 and identified M.Os. I to 4. After the close of the prosecution evidence the accused were examined under Section 313 of the Cr.P.C. They denied the prosecution evidence and pleaded that they were innocent.

A perusal of the facts of the case would show that there is no allegation that the appellant himself was found in possession of any narcotics. The allegation was only that he handed over some narcotics to accused No. I.

The only evidence against the appellant is the retracted statement of accused No. I and the appellant's own retracted confession.

In Chonampara Chellappan v. State of Kera/a AIR (1979) SC 1761, it has been held (in paragraph 4) that "it is equally well settled that one tainted evidence cannot corroborate another tainted evidence because if this is allowed to be done then the very necessity of corroboration is frustrated."

G In paragraph 5 of the same judgment this Court relied on a decision in Piara Singh v. State of Punjab [ 1969] 3 SCR 236, in which it was observed:

"An accomplice is undoubtedly a competent witness under the lnian

Evidence Act. There can be, however, no doubtthat the very fact that he has participated in the commission of the offence introduces a H serious taint in his evidence and Courts are naturally reluctant to act

FRANCIS STANLY '<!1 STALIN'' INTELLIGENCE OFFICER. NARCOTIC CONTROL BUREAU IMARKANOEY KATJU. 1.1 981

on such tainted evidence unless it is corroborated in material particulars A by other independent evidence".

Thus, it appears from the above decision that there is some taint in the evidence of an accomplice, and the reason for this obviously is that an accomplice's evidence is looked upon with suspicion because to protect himself he may be inclined to implicate the co-accused.

We make it clear that we are not of the opinion that the evidence of the accomplice can never be relied upon, since such evidence is admissible under Section 133 of the Evidence Act. However, Section 133 has to be read along

with Section 114(b) of the Evidence Act, and reading them together the law is well settled that the rule of prudence requires that the evidence of an c accomplice should ordinarily be corroborated by some other evidence vide Suresh Chandra Bahri v. State of Bihar AIR (1994) SC 2420.

Learned counsel for the respondent relied upon a decision of this Court in M Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, D

(2003) 8 sec 449, wherein it has been held that if the confessional statement is found to be voluntary and free from pressure, it can be accepted. This is no doubt true, but it all depends on the facts and circumstances of each case and no hard and fast rule can be laid down in this connection whether a particular alleged confessional statement should be accepted.

Learned counsel for the respondent then relied upon a decision of this Court in T. Thomson v. State of Kera/a and Anr., [2002] 9 SCC 618, wherein it was held that the confession in question was voluntary. In this connection we reiterate that it all depends on the facts and circumstances of each case, and no hard and fast rule can be laid down as to when a confession can be regarded as voluntary and when it should not.

In State (NCT of Delhi) v. Navjot Sandhu@Afasan Guru [2005] 11 SCC 600, (vide para 34) this Court observed :

"A retracted confession may form the legal basis of a conviction if

the court is satisfied that it was true and was voluntarily made. But G it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence that under no circumstances can such a conviction be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to H

A act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars".

B It is true that in the present case the confession was made by the accused not before an ordinary police officer, but before an officer, under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') who is an officer of the Department of Revenue InteUigence, and it is held by this Court in Raj Kumar Karwa/ v. Union of India and Ors., C [1990] 2 SCC 409, that such a confession is. not hit by Section 25 of the Evidence Act.

We are of the opinion that while it is true that a confession made before an officer of the Department of Revenue Intelligence under the NDPS Act may not be hit by Section 25 in view of the aforesaid decisions, yet such a D confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under Act.

Hence the alleged confession made by the same appellant must be subjected to closer scrutiny than would otherwise be required.

We have carefully perused the facts of the present case, and we are of E the opinion that on the evidence of this particular case it would not be safe to maintain the conviction of the appellant, and he must be given the benefit of reasonable doubt.

We make it clear that we are not laying down any general principle in this case, and are deciding it only on the particular facts and circumstances F of this case. Hence, this case cannot be a precedent for other cases which may be on their own facts.

We are. infonned that the appellant has already undergone more than six years' imprisonment.

G : On the facts and circumstances of the case, we allow this appeal and , set aside the orders of the courts below. The appellant who is in jail shall be set free forthwith unless required in connection with some other case.

K.K.T.

Appeal allowed.