Confessional Statement of a Co-accused cannot by itself be taken as a Substantive Piece of Evidence against another Co-accused [SC JUDGMENT]
Narcotic Drugs and Psychotropic Substances Act, 1985 - Ss. 21(c) r/w. 29 - Confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court - In the absence of any substantive evidence it would be inappropriate to base the conviction of the accused purely on the statements of co-accused.
Held:- In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
(Abhay Manohar Sapre) and (Uday Umesh Lalit) JJ.
July 31, 2018
CRIMINAL APPEAL NO. 949
OF 2018
(Arising out
of Special Leave Petition (Criminal) No.9816 of 2017)
Surinder Kumar Khanna ……Appellant
Versus
Intelligence Officer Directorate of Revenue Intelligence ..…. Respondent
J U D G M E N T
Uday
Umesh Lalit, J.
1. Special Leave to Appeal
granted.
2. This appeal challenges the
correctness of Judgment and Order dated 21.12.2016 passed by the High Court of
Punjab and Haryana at Chandigarh in Criminal Appeal No.798 of 2014 by which the
High Court affirmed the conviction of the appellant for the offences punishable
under Section 21(c)read with Section 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPC
Act’, for short).
3. According to the
Prosecution:-
a. On a specific information that narcotic drugs were going to be
transported from Jammu side to Chandigarh via Hoshiarpur in a white colour
Indica car bearing registration no.PB-02AJ-7288, the officers of Directorate of
Revenue Intelligence (for short ‘DRI’) laid picket at toll barrier at
Hoshiarpur-Garhshankar road. At 10:35 hours, they intercepted an Indica car of
white colour which was coming from Hoshiarpur side bearing registration
No.PB-02AJ-7288. The car was being driven by one Raj Kumar @ Raju whereas one
Surinder Pal Singh was sitting next to him. To ensure safe search of the car
and personal search of occupants, the car was taken to the office of Superintendent,
Central Excise Range, Model Town, Hoshiarpur. The officers of DRI served notice
under Section 50 of the NDPS Act upon said Raj Kumar @ Raju and Surinder Pal
Singh.
b. As desired by said suspects, their personal searches and that
of the car were conducted in the presence of independent witnesses and Shri SJS
Chugh, Senior Intelligence Officer. Personal searches of the suspects did not
result in recovery of any incriminating material.However, when the car was
searched, four packets wrapped with yellowish adhesive tapes were found
concealed in the door of dickey of the car. The gross weight of those four
packets came to 4.300 kg.
c. Each of those packets was containing white colour granules/powder
which gave a very pungent smell. The pinch of each packet was tested, which
showed the presence of heroin. The recovered heroin weighing 3.990 kgs was
valued at Rs.19,95,000/-. Those four packets were taken into possession. Two representative samples
of 5 gms each were taken out from each of the packets as per rules. Indica car
was also seized by the officers of DRI. Statements of both the suspects were
recorded. From their statements, it transpired that four packets of heroin had
been taken from one Mr. Goldy r/o Vijaypur, Jammu and those packets were to be delivered
to a person of African origin near PGI Chandigarh.
d. Initially a complaint under Sections 21, 22, 23, 28, 29 and 60
of the NDPS Act was lodged against said Raj Kumar @ Raju and Surinder Pal
Singh. During investigation, the involvement of the present appellant in the
drug racket was said to have been made out. After the appellant was arrested, a supplementary complaint was presented
against him and the matter was taken up with the maincomplaint. After hearing
arguments, charges were framed against said Raj Kumar @ Raju and Surinder Pal
Singh and the appellant for the offences under Sections 21, 29 and 60 of the
NDPS Act.
4. The prosecution, in support
of its case examined four witnesses. After hearing submissions, the trial court
convicted and sentenced all three accused. The appellant was convicted under
Section 21(c) read with Section 29 of the NDPS Act and was sentenced to undergo
rigorous imprisonment for 12 years and to pay a fine of Rs.1 lakh, in default
whereof to undergo further rigorous imprisonment for three years. Similar
orders for conviction and sentence were recorded against other two accused
namely Raj Kumar @ Raju and Surinder Pal Singh. All three convicted accused
preferred appeals; namely Criminal Appeal No.D-955-DB-2013 was filed by Raj
Kumar @ Raju and Surinder Pal Singh while Criminal Appeal No.D-798-DB-2014 was
preferred by the appellant. Both these appeals were heard together by the High
Court.
5. As regards the appellant, it
was observed by the High Court that he was specifically named by co-accused Raj
Kumar @ Raju and Surinder Pal Singh in their statements. Apart from such
statements nothing was produced on record to indicate the involvement of the
appellant. The High Courthowever found that the case against the appellant was
made out. It was observed:
“Offence of abetment under Section 29 of NDPS Act stood
established against accused Surinder Kumar Khanna, showing that he was involved
in drug trafficking. He was specifically named by accused Raj Kumar @ Raju and
Surinder Pal Singh in their statements. Such statements of accused Raj Kumar @
Raju and Surinder Pal Singh recorded under Section 67 of the NDPS Act are
admissible in evidence and are not hit by Section 25 of the Evidence Act
because the officers of DRI, who had apprehended Raj Kumar @ Raju and Surinder
Pal Singh, traveling in an Indica car and effecting recovery from them do not
come within the definition of police officers.”.
The High Court thus affirmed the order of conviction as recorded against
the appellant but reduced the sentence to rigorous imprisonment for a period of
10 years and to pay fine of Rs.1 lakh, in default whereof to undergo further
rigorous imprisonment for 1½ years. Similar orders of sentence were passed in
respect of other co-accused namely Raj Kumar @ Raju and Surinder Pal Singh.
6. In this appeal challenging
the correctness of the conviction and sentence rendered as against the
appellant, it was submitted by Mr. Jayant Bhushan, learned Senior Advocate that
apart from the so called statements of co-accused Raj Kumar @ Raju and Surinder
Pal Singh there was nothing against the appellant and that he was neither
arrested at the site nor was thecontraband material in any way associated with
him. Mr. Maninder Singh, learned Additional Solicitor General appearing for the
respondent however supported the judgment of conviction and sentence rendered
against the appellant. He placed on record call data reports showing that
around the time when the co-accused was arrested, the appellant was in touch
with a person named Chaudhary from Dubai. The learned Additional Solicitor General
however fairly accepted that apart from the statements of the coaccused there
was nothing to link the appellant with said convicted accused. The call data reports also did not indicate that around the time
when coaccused were apprehended, the appellant was in touch with either of them.
7. For the present purposes, we
will proceed on the footing that the statements of co-accused were recorded under
and in terms of Section 67 of the NDPS Act. As regards such statements, a bench
of two Judges of this Court after referring to and relying upon the earlier
Judgments, observed in Kanhaiyalal v. Union of India, (2008) 4 SCC 668 as under:
“45. Considering the provisions of
Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case, (1990) 2 SCC 409 with which we agree, that an
officer vested with the powers of an officer in charge of a police station
under Section 53 of the above Act is not a “police officer” within the meaning
of Section 25 of the Evidence Act, it is clear that a statement made under
Section 67 of the NDPS Act is not the same as a statement made under Section
161 of the Code, unless made under threat or coercion. It is this vital
difference, which allows a statement made under Section 67 of the NDPS Act to be
used as a confession against the person making it and excludes it from the
operation of Sections 24 to 27 of the Evidence Act.”
8. Later, another bench of
two Judges of this Court in Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31 was of the view that the matter required reconsideration and
therefore, directed that the matter be placed before a larger bench. It was
observed in Tofan Singh (supra) as under:
“40. In
our view the aforesaid discussion necessitates a re-look into the ratio of Kanhaiyalal case. It is more so when this
Court has already doubted the dicta in Kanhaiyalal in Nirmal Singh
Pehlwan, (2011) 12 SCC 298 wherein
after noticing both Kanhaiyalal as well as Noor Aga, (2008) 16 SCC 417 this Court observed thus: (Nirmal Singh Pehlwan case, SCC p. 302, para 15)
“15. We also see that the
Division Bench in Kanhaiyalal case had
not examined the principles and the concepts underlying Section 25 of the
Evidence Act, 1872 vis-Ã -vis Section 108 of the Customs Act and the powers of a
Customs Officer who could investigate and bring for trial an accused in a
narcotic matter. The said case relied exclusively on the judgment in Raj Kumar case. The latest judgment in point
of time is Noor Aga case which
has dealt very elaborately with this matter. We thus feel it would be proper
for us to follow the ratio of the judgment in Noor Aga case particularly as the
provisions of Section 50 of the Act which are mandatory have also not been complied
with.”
41. For
the aforesaid reasons, we are of the view that the matter needs to be referred
to a larger Bench for reconsideration of the issue as to whether the officer
investigating the matter under the NDPS Act would qualify as police officer or
not.
42. In
this context, the other related issue viz. whether the statement recorded by
the investigating officer under Section 67 of the Act can be treated as
confessional statement or not, even if the officer is not treated as police
officer also needs to be referred to the larger Bench, inasmuch as it is
intermixed with a facet of the 1st issue as to whether such a statement is to
be treated as statement under Section 161 of the Code or it partakes the
character of statement under Section 164 of the Code.”
9. Thus the issue whether
statement recorded under Section 67 of the NDPS Act can be construed as a
confessional statement even if the officer who recorded such statement was not
to be treated as a police officer, has now been referred to a larger Bench.
10. Even if we are to proceed on
the premise that such statement under Section 67 of the NDPS Act may amount to
confession, in our view, certain additional features must be established before
such a confessional statement could be relied upon against a co-accused. It is
noteworthy that unlike Section 15 of Terrorist and Disruptive Activities Act,
1987 (Similarly: Section 18 of Maharashtra Control of Organised Crime Act, 1999) which specifically makes
confession of a co-accused admissible against other accused in certain
eventualities; there is no such similar or identical provision in the NDPS Act
making such confession admissible against a co-accused. The matter therefore
has to be seen in the light of the law laid down by this Court as regards
general application of a confession of a coaccused as against other accused.
11. In Kashmira Singh v. State of Madhya
Pradesh, (1952) SCR 526 this Court relied upon the
decision of the Privy Council in Bhuboni Sahu v. The King, (1949) 76 Indian Appeal 147 at 155 and laid down as under:
“Gurubachan's confession has played an
important part in implicating the appellant, and the question at once arises,
how far and in what way the confession of an accused person can be used against
a co-accused? It is evident that it is not evidence in the ordinary sense of
the term because, as the Privy Council say in Bhuboni Sahu v. The King "It does not indeed come
within the definition of" 'evidence' contained in section 3 of the Evidence
Act., It is not required to be given on oath, nor in the presence of the
accused, and it cannot be tested by crossexamination." Their Lordships
also point out that it is "obviously evidence of a very weak type.........
It is a much weaker type of evidence than the evidence of an approver, which is
not subject to any of those infirmities."
They stated in addition that such a confession cannot be made tile
foundation of a conviction and can only be used in "support of other
evidence." In view of these remarks it would be pointless to cover the
same ground, but we feel it is necessary to expound this further as
misapprehension still exists. The question is, in what way can it be used in
support of other evidence? Can it be used to fill in missing gaps? Can it be
used to corroborate an accomplice or, as in the present case, a witness who,
though not an accomplice, is placed in the same category regarding credibility
because the judge refuses to believe him except in so far as he is corroborated
?
In our opinion, the matter
was put succinctly by Sir 'Lawrence Jenkins in Emperor v. Lalit Mohan
Chuckerbutty, [1911] I.L.R. 38 CAl. 559 at 588 where he said that such a
confession can only be used to "lend assurance to other evidence against a
co-accused "or, to put it in another way, as Reilly J. did in In re Periyaswami
Moopan, [1931] I.L.R. 54 Mad. 75 at 77
"the provision goes no
further than this--where there is evidence against the co-accused sufficient,
if believed, to support his conviction, then the kind of confession de- scribed
in section 30 may be thrown into the scale as an additional reason for
believing that evidence."
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 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.”
12. The law laid down in Kashmira Singh (supra) was approved by a Constitution
Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar, (1964) 6 SCR 623 at 631-633 wherein it was observed:
“As
we have already indicated, this question has been considered on several
occasions by judicial decisions and it has been consistently held that a
confession cannot be treated as evidence which is substantive evidence against
a co-accused person. In dealing with a criminal case where the prosecution
relies upon the confession of one accused person against another accused
person, the
proper approach to adopt is to consider the other evidence against such an
accused person, and if the said evidence appears to be satisfactory and the
court is inclined to hold that the said evidence may sustain the charge framed
against the said accused person, the court turns to the confession with a view
to assure itself that the conclusion which it is inclined to draw from the
other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan
Chuckerburty a
confession can only be used to “lend assurance to other evidence against a
co-accused”. In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further
than this: “where there is evidence against the co-accused sufficient, if
believed, to support his conviction, then the kind of confession described in Section
30 may be thrown into the scale as an additional reason for believing that evidence”.
In Bhuboni Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont
who spoke for the Board, observed that “a confession of a co-accused is obviously
evidence of a very weak type. It does not indeed come within the definition of “evidence”
contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the
accused, and it cannot be tested by cross-examination. It is a much weaker type
of evidence than the evidence of an approver, which is not subject to any of
those infirmities. Section 30, however, provides that the court may take the
confession into consideration and thereby, no doubt, makes it 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 the case; it can be put into the
scale and weighed with the other evidence”. It would be noticed that as a
result of the provisions contained in Section 30, the confession has no doubt
to be regarded as amounting to evidence in a general way, because whatever is
considered by the court is evidence; circumstances which are considered by the
court as well as probabilities do amount to evidence in that generic sense.
Thus, though confession may be regarded as evidence in that generic sense because
of the provisions of Section 30, the fact remains that it is not evidence as
defined by Section 3 of the Act. The result, therefore, is that in dealing with
a case against an accused person, the court cannot start with the confession of
a co-accused person; it must begin with other evidence adduced by the
prosecution and after it has formed its opinion with regard to the quality and
effect of the said evidence, then it is permissible to turn to the confession
in order to receive assurance to the conclusion of guilt which the judicialmind
is about to reach on the said other evidence. That, briefly stated, is the
effect of the provisions contained in Section 30. The same view has been
expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the
Privy Council in Bhuboni Sahu case has
been cited with approval.”
13. The law so laid down has always been followed by this Court
except in cases where there is a specific provision in law making such
confession of a co-accused admissible against another accused. [For example: State vs. Nalini, (1999) 5 SCC 253, paras 424 and 704]
14. In the present case it is accepted that apart from the
aforesaid statements of co-accused there is no material suggesting involvement
of the appellant in the crime in question. We are thus left with only one piece
of material that is the confessional statements of the co-accused as stated above.
On the touchstone of law laid down by this Court such a confessional statement
of a co-accused cannot by itself be taken as a substantive piece of evidence
against another co-accused and can at best be used or utilized in order to lend
assurance to the Court. In the absence of any substantive evidence it would be
inappropriate to base the conviction of the appellant purely on the statements
of co-accused. The appellant is therefore entitled to be acquitted of the
charges leveled against him. We, therefore, accept this appeal, set aside the
orders of conviction and sentence and acquit the appellant. The
appellant shall be released forthwith unless his custody is required in
connection with any other offence.