U.O.I. Vs. Bal Mukund
& Ors.  INSC 675 (31 March 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1397 OF 2007
U.O.I. ...Appellant Versus Bal Mukund & Ors. ...Respondents
S.B. SINHA, J :
of India is before us aggrieved by and dissatisfied with a judgment and order
dated 13.05.2005 passed by the High Court of Madhya Pradesh at Indore in
Criminal Appeal Nos. 964 and 1108 of 2000.
factual matrix involved herein is as under:
Lal posted in the Office of the Central Bureau of Narcotics, Ratlam purported
to have obtained a secret information to the 2 effect that the respondent Nos.
1 and 2 herein Bal Mukund and Basanti Lal would be carrying about 20 Kg. of Opium
on the next day. A preventive party allegedly was formed pursuant to or in
furtherance of the said information. At about 0430 hours on 21.06.1998, they
reached Nayapura Phanta on Ratlam Jaora Road. Respondent Nos. 1 and 2 were seen
carrying cement gunny bags. They were searched. 10 Kgs. of Opium packed in 5
polythene bag of 2 Kg. each from each of them were said to have been recovered.
purported confessions of the respondent Nos. 1 and 2 were recorded on
21.06.1998, unofficial translated version whereof reads as under:
Respondent No. 1 ...My father is debt ridden to Amritlal Anjana out of Rs.
38000/- out of which Rs. 18000/- has been paid now. Their balance is Rs.
20,000/-. This sum of Rs. 38000/- were given to me by Amritlal Anjana for motor
for well and some amount was taken in cash. Amritlal suggested that if I wishes
to liquidate my father's debt then I should away opium and give it to suggested
destination. I shall give good wages against it. A sum of Rs. 3000/- were
decided for carrying the opium. I came from my village Nandwell to Behpur and
Basantilal who is my relative. Both met Amritlal Anjana at 3 10-00 night at
his well Amritlal Anjana by Giving 10-000 Kgs each of us with the opium and
directly to go on feet towards Nandi. He also said he would be available nearly
Nandi Phanta. He said, he would give Rs. 3000/- to each by way of wages when we
came on foot by & carrying 10-000 Kgs of opium and reached Nayapura Phatak
then Narcotics officers detained us and took our formal search. He found opium
in the bag mean for cement weight 10-000 Kgs. Which was seized by Narcotics
Deptd. Raltmal and I was detained for carrying illicit opium weight 10-000 Kg.
under the office of N.D.P.C. This statement I am giving voluntarily and in full
consciousness whether is spoken is underwritten to which I having read and
finding it to be correct put my signature.
Respondent No. 2 ...On further interrogation stated that they are opium
weighing 10 kg and 10 kg opium from my colleague has been recovered for which
on interrogation I state truly that on 20-06-1998 Balmukund came to my village
Behpur and said that we have to go to Maukhedi at the residence of Amritlal S/o
Raghunath Anajan therefore I alongwith Balmukund proceeded for Behpur come to
Maukhedi who Amritlal Anjana and that we should go to his well where I shall
give you opium or reached the well Amritlal Anjana gave me in a bag of 10 kg of
opium and 10 kg to my colleague Balmukund and we should go on foot on
unconstructed road and reached Nanda Phatak where I will be awaiting nearly and
collect the opium, we were coming on foot towards Nandi then Narcotics officer
took our search then in the bag. I was carrying opium weighing 10 kg. was
recovered and 10 kg. of opium was also recovered from my colleagues Balmukund.
The opium so recovered was taken into government possession 4 under N.D.P.S.
Act, 1985. The statement which I have made is in full consciousness,
voluntarily and whatever I stated is only written to which I hearing/ read put
they were arrested. Thereafter also they made similar statements. However, as
no reliance has been placed thereupon, it is not necessary for us to refer
a purported confession made by them that they were carrying the said contraband
at the behest of Accused No. 3 Amritlal, a search was conducted in his house at
about 1.30 p.m. No contraband, however, was recovered.
statement of the respondent No. 3 was also recorded relevant portion whereof
reads as under:
"I state that
the 20 Kg of opium which has been seized by Narcotics Deptt. at Nayapura Fantak
that I had given to Balmukund & Basantilal which was to be given on foot
near Mewasa to a person named Ranjeet who is owner of Dahba to deliver to him
about the seized opium. I further state that my family has a licence for the
said opium. I had surreptitiously kept 7 to 8 kg of opium which I had kept on
the well about which none of my family 5 member had any knowledge to this
opium by making aboultertion. I make 20-000 Kg gave to 10-00 to Balmukund &
Basantilal for dealing to Ranjeet. I further state that I had never done
business of selling opium out of greed I did this act. I was totally aware that
there are strict provision for keeping illicit opium under N.D.P.S.
Act, 1985 but still
out of greed I have done this deal.
This I have truly
state. This I have stated in fully consciousness voluntarily and whatever I
have spoken is orally written to which I having read, understanding the same
put my signature."
No. 3 was arrested at 6.30 p.m. He purported to have made another confession
before the authorities under the Act. He was produced before the Court on
22.06.1998. The investigating officer sought for and obtained his remand for a
day which was granted. He purported to have made another statement on
22.06.1998. On his production before the learned Special Judge under the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the
Act") on 23.06.1998, he was taken to judicial custody.
No. 3 immediately thereafter sent an application to the learned Special Judge,
Ratlam retracting his confession. The said application was sent through the
Superintendent of District Jail, Ratlam on 6 24.06.1998. It was received in
the Court of the Special Judge on the same day. Respondent Nos. 1 and 2 also
filed applications retracting their confessions on or about 5.09.1998.
contraband recovered from the respondent Nos. 1 and 2 were sent for chemical
analysis. The report dated 15.07.1998 of the Assistant Chemical Examiner, Govt.
Opium and Alkaloid Works shows presence of 01.68% and 02.05% of Morphine by
B.P. Extraction from the first sample and the second sample, respectively.
manner in which a sample of narcotic is required to be taken has been laid down
by the Standing Instruction No. 1/88, the relevant portion whereof reads as
drawing one sample in duplicate from a particular lot, it must be ensured that
representative drug in equal quantity is taken from each package/ container of
that lot and mixed together to make a composite whole from which the samples
are drawn for that lot."
the learned Special Judge, no independent witness was examined. Whereas the
learned Special Judge framed charges under 7 Section 8/18 of the Act against
the respondent Nos. 1 and 2; the respondent No. 3 was charged under Section
learned Special Judge relying on or on the basis of the purported confessions
made by the respondents recorded a judgment of conviction and sentence.
High Court, however, reversed the said findings of the learned Special Judge,
(i) Respondent Nos. 1
and 2 could not have been convicted on the basis of their own confessions,
which had been retracted, as the same had not been corroborated by any
(ii) The purported
confession made by the respondent Nos. 1 and 2 was not admissible against the
respondent No. 3.
(iii) The purported
secret information having been recorded in writing, as is required under
Section 42 of the Act, the prosecution is vitiated in law.
(iv) A sample of
narcotics having not been taken in terms of the Standing Instruction as also in
compliance of Section 55 of the Act, the judgment of the learned Special Judge
B.B. Singh, learned counsel appearing on behalf of the appellant, would
(i) The High Court
committed a serious error insofar as it failed to take into consideration that
the prosecution case stood amply proved by PW-8 S.K. Khandelwal who had seized
the contraband from the respondent Nos. 1 and 2 and PW-1 Chemical Examiner who
had proved this report as also PWs. 5 and 7 being the witnesses of seizure.
(ii) Exhibits 20 and
21 being the confessional statements having been recorded in terms of Section
67 of the Act, prior to their arrest, were admissible in evidence not only
against themselves but also against their co-accused the respondent No. 3.
(iii) The purported
retraction of confession by the respondent Nos. 1 and 2 having not been
retracted within a reasonable time and having not been proved as to how and in
what manner the same was obtained from them, i.e., whether by intimidation or
undue influence; could not have been taken into consideration for the purpose
of recording a judgment of acquittal.
(iv) PW-7 having
proved the sealing of the box which was in compliance of Section 57 of the Act
and the seal having been found to be intact, the High Court committed a serious
error in passing the impugned judgment.
(v) Having regard to
the provisions contained in Section 134 of the Evidence Act, it was not
necessary for the prosecution to prove its case by examining any independent
Sushil Kumar, learned senior counsel appearing on behalf of the respondent No.
3, on the other hand, would contend that the purported confession made by the
respondent No. 3 having been retracted at the earliest possible opportunity,
viz., as soon as he was placed in judicial custody, the learned Trial judge
committed a serious error in not considering the said aspect of the matter and
consequently recording a judgment of conviction only on the basis of confession
by the co-accused.
Santosh Kumar, learned counsel appearing on behalf of respondent Nos. 1 and 2
(i) The search and
seizure having not been carried out in terms of Standing Instructions No. 1/88,
the same was vitiated in law.
(ii) The report of
chemical analyzer dated 15.07.1998 prepared by the Asstt. Chemical Examiner
clearly proves that only 01.68% of the seized articles contained heroine is a
pointer to show that had the samples been taken in a proper manner, the same
would have established their innocence.
(iii) The prosecution
having committed a flagrant violation of Section 55 of the Act, the judgment of
the trial court was rightly set aside by the High Court.
(iv) PW-7 M.R.
Narvale in his evidence having not identified the bags vis-`-vis the samples
taken, the complicity of the respondents had not been proved.
recorded on 21.06.1998 as also 22.06.1998 by the respondent Nos. 1 and 2 having
been made while they were admittedly in the custody of the authorities under
the Act and it having not been proved that there was any element of
voluntariness on their part to make statements confessing their guilt, the same
would be hit by Sections 25 and 26 of the Evidence Act.
Nos. 1 and 2 were arrested on the basis of some secret information received by
the informant. The said purported secret 11 information revealed the exact
place, time and quantity of the narcotics the respondent Nos. 1 and 2 would be
carrying. It was, however, admittedly neither recorded in writing nor was
forwarded to the superior officers.
42 of the Act mandates compliance of the requirements contained therein, viz.,
if the officer has reason to believe from personal knowledge or information
given by any person which should be taken down in writing that any drug or
psychotropic substance or controlled substance in respect of which an offence
punishable under the Act has been committed, he is empowered to exercise his
power enumerated in clauses (a) and (b) of Section 42(1) of the Act between
sunrise and sunset. Subject to just exceptions, thus, taking down the
information in writing is, therefore, very necessary to be complied with.
The proviso appended
to Section 42(1) of the Act reads as under:
if such officer has reason to believe that a search warrant or authorisation
cannot be obtained without affording opportunity for the concealment of
evidence or facility for the escape of an offender, he may enter and search
such building, conveyance or enclosed place at any time between sunset and sunrise
after recording the grounds of his belief."
Sub-section (2) of
Section 42 of the Act provides that such an information reduced in writing
should be communicated to his immediate superior officers within seventy two
The information was received
on the previous night. The purported recovery was made at 5 a.m. Even the
Senior Superintendent of Police was aware thereof, who had received the
information first and directed PW-7 to conduct the raid. No explanation has
been offered as to why the mandatory requirements of law could not be complied
prosecution case principally hinges on the purported confessions made by the
respondents. The learned Special Judge failed and/ or neglected to notice that
the respondent No. 3 had retracted his confession at the earliest possible
opportunity. He could have, therefore, been convicted only if independent
corroboration thereof was available. Admittedly, no contraband was found from
his possession. He was prosecuted for entering into a conspiracy in regard to
commission of the offences under Section 8/18 of the Act with the respondent
Nos. 1 and 2. Such conspiracy was not proved by the prosecution. No evidence
whatsoever was brought on record 13 in that behalf. The High Court, in our
opinion, therefore, rightly accepted the contention of the said respondent,
"12. As far as
appellant Amritlal is concerned, he was apprehended only on the basis of the
statement made by the appellants Bal Mukund and Basantilal. The only evidence
available against him is his confessional statement recorded under Section 67
of the Act. M.R. Narvale (PW-7) has stated in his statement that statement of
Amritlal Anjana Ex. P/24 was recorded by him. The contents of Ex. P/24 have not
been duly proved by the prosecution. The so called confession has been
retracted by the appellant Amritlal. He cannot be convicted only on the basis
of Ex. P/24.
Even the confessional
statements of co-accused cannot form the basis of his conviction. His
conviction is not based on the evidence and cannot be sustained."
recording his conviction, confession of the respondent Nos. 1 and 2 had been
taken into consideration.
B.B. Singh would urge that the statements made by the respondent Nos. 1 and 2
purported to be in terms of Section 67 of the Act were admissible against the
co-accused. Strong reliance in this behalf has been placed on Naresh J.
Sukhawani v. Union of India [1995 Supp (4) SCC 663] wherein it was held:
"4. It must be
remembered that the statement made before the Customs officials is not a
statement recorded under Section 161 of the Criminal Procedure Code, 1973.
Therefore, it is a material piece of evidence collected by Customs officials
under Section 108 of the Customs Act.
incriminates the petitioner inculpating him in the contravention of the
provisions of the Customs Act. The material can certainly be used to connect
the petitioner in the contravention inasmuch as Mr Dudani's statement clearly
inculpates not only himself but also the petitioner. It can, therefore, be used
as substantive evidence connecting the petitioner with the contravention by
exporting foreign currency out of India. Therefore, we do not think that there
is any illegality in the order of confiscation of foreign currency and
imposition of penalty. There is no ground warranting reduction of fine."
legal principle has been laid down therein. No reason has been assigned in
support of the conclusions arrived at. If a statement made by an accused while
responding to a summons issued to him for obtaining information can be applied
against a co-accused, Section 30 of the Evidence Act being not applicable, we
have not been shown as to under which other provision thereof, such a
confession would be admissible for making the statement of a co-accused
relevant against another co-accused. If an accused makes a confession in terms
of the provisions of the Code of 15 Criminal Procedure or otherwise, his
confession may be held to be admissible in evidence only in terms of Section 30
of the Evidence Act and not otherwise. If it is merely a statement before any
authority, the maker may be bound thereby but not those who had been implicated
therein. If such a legal principle can be culled out, the logical corollary
thereof would be that the co-accused would be entitled to cross-examine the
accused as such a statement made by him would be prejudicial to his interest.
may notice that in State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru
[(2005) 11 SCC 600], this Court has laid down the law in the following terms:
"38. The use of
retracted confession against the co-accused however stands on a different
footing from the use of such confession against the maker.
To come to grips with
the law on the subject, we do no more than quoting the apt observations of
Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of
M.P. Before clarifying the law, the learned Judge noted with approval the
observations of Sir Lawrence Jenkins that a confession can only be used to
"lend assurance to other evidence against a co-accused".
The legal position
was then stated thus: (SCR p. 530) "Translating these observations into
concrete terms they come to this. The proper way to approach a case of this
kind is, first, to marshal the evidence against the accused excluding the 16
confession altogether from consideration and see whether, if it is believed, a
conviction could safely be based on it. If it is capable of belief independently
of the confession, then of course it is not necessary to call the confession in
aid. But cases may arise where the judge is not prepared to act on the other
evidence as it stands even though, if believed, it would be sufficient to
sustain a conviction. In such an event the judge may call in aid the confession
and use it to lend assurance to the other evidence and thus fortify himself in
believing what without the aid of the confession he would not be prepared to
accept." (emphasis in original)
39. The crucial
expression used in Section 30 is "the Court may take into consideration
such confession" (emphasis supplied). These words imply that the
confession of a co-accused cannot be elevated to the status of substantive
evidence which can form the basis of conviction of the co- accused. The import
of this expression was succinctly explained by the Privy Council in Bhuboni
Sahu v. R in the following words: (AIR p. 260) "[T]he court may take the
confession into consideration and thereby, no doubt, makes its evidence on
which the court may act; but the section does not say that the confession is to
amount to proof. Clearly there must be other evidence. The confession is only
one element in the consideration of all the facts proved in the case; it can be
put into the scale and weighed with the other evidence."
may, keeping in view the aforementioned backdrop, consider the effect of the
purported statements made by the respondent Nos. 1 and 2.
67 of the Act reads as under:
"67 - Power to
call for information, etc.
Any officer referred
to in section 42 who is authorised in this behalf by the Central Government or
a State Government may, during the course of any enquiry in connection with the
contravention of any provisions of this Act,-- (a) call for information from
any person for the purpose of satisfying himself whether there has been any
contravention of the provisions of this Act or any rule or order made
(b) require any
person to produce or deliver any document or thing useful or relevant to the
(c) examine any
person acquainted with the facts and circumstances of the case."
and at what point of time the said provision was invoked is not known.
18 The situation in
which such purported statements have been made cannot also be lost sight of.
The purported raid was conducted early in the morning. A large number of police
officers including high ranking officers were present. Search and seizure had
been effected. According to the prosecution, each of the respondent Nos. 1 and
2 were found to be in possession of 10 Kg. of narcotics. No information was
sought for from them. It is doubtful whether they had made such statements on
the road itself.
20 and 21 categorically show that they were interrogated. If they were
interrogated while they were in custody, it cannot be said that they had made a
voluntary statement which satisfies the conditions precedent laid down under
Section 67 of the Act. We, in the backdrop of the aforementioned events, find
it difficult to accept that such statements had been made by them although they
had not been put under arrest. As the authorities under the Act can always show
that they had not formally been arrested before such statements were recorded,
a holistic approach for the aforementioned purpose is necessary to be taken.
Court in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416] laid down the law
that if a person in custody is subjected to interrogation, he must be informed
in clear and unequivocal terms as to his right to silence.
This rule was also
invoked by a Constitution Bench of this Court in State of Punjab v. Baldev
Singh [(1999) 3 SCC 977], wherein it was held:
"28. This Court
cannot overlook the context in which the NDPS Act operates and particularly the
factor of widespread illiteracy among persons subject to investigation for drug
offences. It must be borne in mind that severer the punishment, greater has to
be the care taken to see that all the safeguards provided in a statute are
scrupulously followed. We are not able to find any reason as to why the
empowered officer should shirk from affording a real opportunity to the
suspect, by intimating to him that he has a right "that if he
requires" to be searched in the presence of a Gazetted Officer or a
Magistrate, he shall be searched only in that manner. As Page 2956 already
observed the compliance with the procedural safeguards contained in Section 50
are intended to serve dual purpose - to protect a person against false accusation
and frivolous charges as also to lend credibility to the search and seizure
conducted by the empowered officer. The argument that keeping in view the
growing drug menace, an insistence on compliance with all the safeguards
contained in Section 50 may result in more acquittals does not appeal to us. If
the empowered officer fails to comply with the requirements of Section 50 and
an order or acquittal is recorded on that ground, the prosecution must think
itself for its lapses. Indeed 20 in every case the end result is important but
the means to achieve it must remain above board. The remedy cannot be worse
than the disease itself.
The legitimacy of
judicial process may come under cloud if the Court is seen to condone acts of
lawlessness conducted by the investigating agency during search operations and
may also undermine respect for law and may have the effect of unconscionably
compromising the administration of justice. That cannot be permitted."
[See also Noor Aga v.
State of Punjab and another, [ [ 2008 (9) SCALE 681].
court while weighing the evidentiary value of such a statement cannot lose
sight of ground realities. Circumstances attendant to making of such statements
should, in our considered opinion, be taken into consideration.
the Act provides for a stringent punishment. We, for the purpose of this case,
shall proceed on the assumption, as has been contended by Mr. Singh, that the
prosecution need not examine any independent witness although requirements
therefor cannot be minimized.
Chakeravarty v. State of Madhya Pradesh JT 2006 (12) SC 416 and Noor Aga
a statute confers such drastic powers and seeks to deprive a citizen of its
liberty for not less than ten years, and making stringent provisions for grant
of bail, scrupulous compliance of the statutory provisions must be insisted
upon. While considering a case of present nature where two persons may barely
read and write Hindi, are said to have been used as carrier containing material
of only 1.68% of narcotics, a conviction, in our opinion, should not be based
merely on the basis of a statement made under Section 67 of the Act without any
independent corroboration particularly in view of the fact that such statements
have been retracted.
Singh placed strong reliance upon a decision of this Court in A.K. Mehaboob v.
Intelligence Officer, Narcotics Control Bureau [(2001) 10 SCC 203]. The Bench
repelling the arguments that (i) the statement made by the accused had been
retracted; (ii) the appellant informed the Magistrate that the said statement
had been coaxed out from him; and (iii) the said statement was not
"5. There is
nothing to indicate that Exhibit P-8 had been elicited from A-2 by any
coercion, threat or force and, therefore, the learned Single Judge of 22 the
High Court had spurned down that contention.
complaint alleged to have been made by the appellant Naushad on 11-3-1994, we
have perused it. His case therein was that he offered himself to be a witness
in the case and some reward was offered for it. It was on the said offer that
he agreed to sign the said statement..."
There exists a
distinction between a case where the accused himself had stated that he had
made the statement on the belief that he would be rewarded and a case where
such purported confession had been obtained upon interrogation by High ranking
again in M. Prabhulal v. Assistant Director, Directorate of Revenue
Intelligence [(2003) 8 SCC 449], the retraction was made only when the accused
was being examined under Section 313 of the Code of Criminal Procedure. No
credence was given to such a retraction made after such a long time. This Court
taking into consideration the entire factual matrix involved in the case opined
that the confessional statement could not be held to be involuntary and they
were voluntarily made. Such is not the case here.
23 We have pointed
out several circumstances to show that the accused had been put under
has also been placed on Kanhaiyalal v. Union of India [(2008) 4 SCC 668]. In
that case, no question was put in cross-examination to the police officer
(PW-9) whose evidence had been relied upon by the High Court and, thus, his
evidence was stated to be corroborative of the statement made by the accused.
However, it is
interesting to note that in Francis Stanly Alias Stalin v.
Narcotic Control Bureau, Thiruvananthapuram [(2006) 13 SCC 210], this Court
"15. 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 confession must be
subject to closer scrutiny than a confession made to private 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.
16. We 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, 24 and he must be given the benefit of reasonable
Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate and Another
[(2007) 8 SCC 254], in a case involving the Foreign Exchange Regulation Act,
this Court held:
therefrom the High Court was bound to take into consideration the factum of
retraction of the confession by the appellant. It is now a well- settled
principle of law that a confession of a co- accused person cannot be treated as
substantive evidence and can be pressed into service only when the court is
inclined to accept other evidence and feels the necessity of seeking for an
assurance in support of the conclusion deducible therefrom..."
Ravindran Alias John v. Superintendent of Customs [(2007) 6 SCC 410], this
confessional statement of a co-accused could not be used as substantive
evidence against the co-accused."
Noor Aga (supra), this Court held that whether the confession was made under
duress or coercion and/ or voluntary in nature should be 25 considered having
regard to the facts and circumstances of each case. It was opined:
"102. Section 25
of the Evidence Act was enacted in the words of Mehmood J in Queen Empress v.
Babulal ILR (1884) All.
509 to put a stop to the extortion of confession, by taking away from the
police officers as the advantage of proving such extorted confession during the
trial of accused persons. It was, therefore, enacted to subserve a high
113. Even otherwise
Section 138B of the 1962 Act must be read as a provision containing certain
important features, namely:
(a) There should be
in the first instance statement made and signed by a person before a competent
(b) It must have been
made during the course of enquiry and proceedings under the Customs Act.
114. Only when these
things are established, a statement made by an accused would become relevant in
a prosecution under the Act. Only then, it can be used for the purpose of
proving the truth of the facts contained therein. It deals with another
category of case which provides for a further clarification. Clause (a) of
Sub-section (1) of Section 138B deals with one type of persons and Clause (b)
deals with another. The Legislature might have in mind its experience that
sometimes witnesses do not support the prosecution case as for example panch
witnesses and only in such an event an additional opportunity is afforded to
the 26 prosecution to criticize the said witness and to invite a finding from
the court not to rely on the assurance of the court on the basis of the
statement recorded by the Customs Department and for that purpose it is
envisaged that a person may be such whose statement was recorded but while he
was examined before the court, it arrived at an opinion that is statement
should be admitted in evidence in the interest of justice which was evidently
to make that situation and to confirm the witness who is the author of such
statement but does not support the prosecution although he made a statement in
terms of Section 108 of the Customs Act. We are not concerned with such
category of witnesses.
statement of an accused, therefore, cannot be made use of in any manner under
Section 138B of the Customs Act. Even otherwise such an evidence is considered
to be of weak nature."
It was also held that
sanctity of the recovery should be ensured.
therefore, in the facts and circumstances of this case, are clearly of the view
that the purported confessions made by the respondent Nos. 1 and 2 could not in
absence of other corroboration form the basis of conviction.
is another aspect of the matter which cannot also be lost sight of. Standing
Instruction No. 1/88, which had been issued under the Act, lays down the
procedure for taking samples. The High Court has noticed 27 that PW-7 had
taken samples of 25 grams each from all the five bags and then mixed them and
sent to the laboratory. There is nothing to show that adequate quantity from
each bag had been taken. It was a requirement in law.
is another infirmity in the prosecution case.
Section 55 of the Act
reads as under:
"55 - Police to
take charge of articles seized and delivered An officer-in-charge of a police
station shall take charge of and keep in safe custody, pending the orders of
the Magistrate, all articles seized under this Act within the local area of that
police station and which may be delivered to him, and shall allow any officer
who may accompany such articles to the police station or who may be deputed for
the purpose, to affix his seal to such articles or to take samples of and from
them and all samples so taken shall also be sealed with a seal of the
officer-in-charge of the police station."
PW-7 did not testify
as to which of the bags seized had been sent for analysis. No statement had
been made by him that the bags produced were the bags in question which were
seized or the contraband was found in them.
we are dealing with a judgment of acquittal. The High Court, for good and
sufficient reasons, had arrived at findings of fact both with regard to
voluntariness of the purported confessions made by the respondents as also
compliance of the mandatory statutory provisions vis-`- vis directions issued
by the Central Government in making search, seizure as also taking of samples
for the purpose of chemical examination having been doubted, we do not see any
reason why we should take a contrary view as it is well-known that the
appellate court would not interfere with a judgment of acquittal only because
another view is possible. On the other hand, if two views are possible, it is
trite, the appellate court shall not interfere. [See Animireddy Venkata Ramana
and Others v. Public Prosecutor, High Court of Andhra Pradesh (2008) 5 SCC 368]
the reasons aforementioned, there is no merit in this appeal which is dismissed
[Dr. Mukundakam Sharma]
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