Stanly @ Stalin Vs. Intelligence Officer, Narcotic Control Bureau, Thiruvanant
 Insc 960 (14
B. Sinha & Markandey Katju Markandey Katju, J.
appeal has been filed against the impugned judgment of the Kerala High Court dated
5.4.2004 in Criminal Appeal No. 217 of 2002.
learned counsel for the parties and perused the record.
appellant was accused No. 2 in the criminal case under the NDPS Act with which
we are concerned.
prosecution case briefly stated is that on 1.10.2000 at 3.45 P.M., PW7, Radhesh,
Intelligence Officer, received information that one person 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. P10 report to
PW5, the Superintendent, Narcotic Control Bureau Regional Intelligence Unit, Thiruvananthapuram.
PW7 alongwith the informant proceeded to the place where the 1st accused was
waiting and the 1st 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.
5 and 6 alongwith 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 1st accused waived the
right and expressed his willingness to be searched by the officers. When PW1
asked the 1st accused whether he was possessing any narcotic drug, the 1st
accused handed over M.O. 2 (a) bag to PW4. The bag was found to contain M.O.2(d)
white full shirt and a bundle of M.O. 2 (b) and M.O.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 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. P1 Mahazar. At the request of PW4, PW6 served Ext. P2 summons
on the 1st accused directing him to appear on the N.C.B. Office at 7 P.M. on the same day. Since the 1st accused did not know the
place, PW7 was asked to accompany the 1st accused to the N.C.B. Office. In
obedience to the summons the 1st accused appeared before the N.C.B. Office and
gave Ext. P12 statement in Tamil which was recorded by PW6. Thereafter PW6
arrested the 1st accused. On the next day the 1st accused was produced before
the Magistrate who remanded him to the Sub Jail. Since the name of the 2nd
accused was also mentioned in Ext. P12 statement, PW5 proceeded to Idinthikara
of Thirunalveli District on the morning of 2.10.2000 and Ext. P15 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. P16 statement in
his own handwriting. PW6 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.
accused denied the charge. Thereupon the prosecution examined PWs 1 to 7,
marked Exts. P1 to P20 and identified M.Os. 1 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.
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. 1. The only evidence
against the appellant is the retracted statement of accused No. 1 and the
appellant's own retracted confession.
Chellappan vs. State of Kerala 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" In paragraph 5 of the
same judgment this Court relied on a decision in Piara Singh vs. State of
Punjab (1969) 3 SCR 236, in which it was observed:
accomplice is undoubtedly a competent witness under the Indian Evidence Act.
There can be, however, no doubt that the very fact that he has participated in
the commission of the offence introduces a serious taint in his evidence and
Courts are naturally reluctant to act on such tainted evidence unless it is
corroborated in material particulars by other independent evidence".
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.
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 accomplice
should ordinarily be corroborated by some other evidence vide Suresh Chandra Bahri
vs. State of Bihar AIR 1994 SC 2420.
counsel for the respondent relied upon a decision of this Court in M. Prabhulal
vs. Assistant Director, Directorate of Revenue Intelligence (2003) 8 SCC 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.
counsel for the respondent then relied upon a decision of this Court in T.
Thomson vs. State of Kerala and another (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.
State (NCT of Delhi) vs. Navjot Sandhu @ Afasan Guru (2005) 11 SCC 600 (vide para
34) this Court observed :
retracted confession may form the legal basis of a conviction if the court is
satisfied that it was true and was voluntarily made. But 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 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
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 Intelligence, and it is held by this
Court in Raj Kumar Karwal vs. Union of India and others (1990) 2 SCC 409, that
such a confession is not hit by Section 25 of the Evidence Act.
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 confession must be
subject to closer scrutiny than a confession made to private citizens or
officials who do not have investigating powers under Act.
the alleged confession made by the same appellant must be subjected to closer
scrutiny than would otherwise be required.
have carefully perused the facts of the present case, and we are of 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
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 of this
case. Hence, this case cannot be a precedent for other cases which may be on
their own facts.
informed that the appellant has already undergone more than six years'
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.