Appellate court(SC) -not interfere with a judgment of acquittal only because another view is possible

The Appellate court would not interfere with a of acquittal only because another view is possible, held by the Supreme Court in the matter of U.O.I. vs. Bal Mukund & Ors.

Judgment:-

The Union 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.



2. The factual matrix involved herein is as under:



Sub-Inspector Bajrang 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.



3. The purported confessions of the respondent Nos. 1 and 2 were

recorded on 21.06.1998, unofficial translated version whereof reads as

under:



"Statement of 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.

Statement of 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 my signature."



4. Indisputably, 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 thereto.



5. On 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.



6. Confessional 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."



7. Respondent 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.



8. Respondent 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.



9. The 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.



10. The 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 under:



"e) While 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."



11. Before 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 8/27 thereof



12. The learned Special Judge relying on or on the basis of the purported

confessions made by the respondents recorded a judgment of conviction and

sentence.



13. The High Court, however, reversed the said findings of the learned

Special Judge, opining:



(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 independent witness.

(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 was unsustainable.
 8




14. Mr. B.B. Singh, learned counsel appearing on behalf of the appellant,

would contend:



(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.
 9


(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 witness.



15. Mr. 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.



16. Mr. Santosh Kumar, learned counsel appearing on behalf of

respondent Nos. 1 and 2 would urge:



(i) The search and seizure having not been carried out in terms of

Standing Instructions No. 1/88, the same was vitiated in law.
 10


(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.

(v) Statements 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.



17. Respondent 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.



18. Section 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:



"Provided that 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."
 12


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 hours.



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 with.



19. The 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, stating:



"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."



20. For recording his conviction, confession of the respondent Nos. 1 and

2 had been taken into consideration.



21. Mr. 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:
 14



"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.
That material 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."




22. No 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.



23. We 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."
 17


24. We may, keeping in view the aforementioned backdrop, consider the

effect of the purported statements made by the respondent Nos. 1 and 2.



25. Section 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 thereunder;

(b) require any person to produce or deliver any
document or thing useful or relevant to the
enquiry;

(c) examine any person acquainted with the facts
and circumstances of the case."




26. How 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.



27. Exhibits 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.
 19


28. This 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].



29. The 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.



30. Concededly, 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.

[See Ritesh Chakeravarty v. State of Madhya Pradesh JT 2006 (12) SC 416

and Noor Aga (supra)].
 21




31. Where 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.



32. Mr. 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 corroborated, opined:



"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.
Regarding the 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 police officials.




33. Yet 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 interrogation.



34. Reliance 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.

Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram [(2006)

13 SCC 210], this Court opined:

"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
doubt."



35. In 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:


"19. Apart 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..."



36. In Ravindran Alias John v. Superintendent of Customs [(2007) 6 SCC

410], this Court opined:


"19...The confessional statement of a co-accused
could not be used as substantive evidence against
the co-accused."



37. In 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) 6 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 purpose.


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
custom official.


(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.
Confessional 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.



38. We, 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.



39. There 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.



40. There 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.
 28




41. Furthermore, 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]




42. For the reasons aforementioned, there is no merit in this appeal which

is dismissed accordingly.




...............................J.
[S.B. Sinha]
 29



................................J.
[Dr. Mukundakam Sharma]



................................J.
[H.L. Dattu]


New Delhi;
March 31, 2009
 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1397 OF 2007


U.O.I. ...Appellant

Versus

Bal Mukund & Ors. ...Respondents




JUDGMENT

S.B. SINHA, J :



1. Union 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.



2. The factual matrix involved herein is as under:



Sub-Inspector Bajrang 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.



3. The purported confessions of the respondent Nos. 1 and 2 were

recorded on 21.06.1998, unofficial translated version whereof reads as

under:



"Statement of 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.

Statement of 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 my signature."



4. Indisputably, 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 thereto.



5. On 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.



6. Confessional 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."



7. Respondent 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.



8. Respondent 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.



9. The 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.



10. The 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 under:



"e) While 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."



11. Before 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 8/27 thereof



12. The learned Special Judge relying on or on the basis of the purported

confessions made by the respondents recorded a judgment of conviction and

sentence.



13. The High Court, however, reversed the said findings of the learned

Special Judge, opining:



(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 independent witness.

(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 was unsustainable.
 8




14. Mr. B.B. Singh, learned counsel appearing on behalf of the appellant,

would contend:



(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.
 9


(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 witness.



15. Mr. 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.



16. Mr. Santosh Kumar, learned counsel appearing on behalf of

respondent Nos. 1 and 2 would urge:



(i) The search and seizure having not been carried out in terms of

Standing Instructions No. 1/88, the same was vitiated in law.
 10


(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.

(v) Statements 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.



17. Respondent 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.



18. Section 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:



"Provided that 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."
 12


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 hours.



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 with.



19. The 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, stating:



"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."



20. For recording his conviction, confession of the respondent Nos. 1 and

2 had been taken into consideration.



21. Mr. 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:
 14



"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.
That material 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."




22. No 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.



23. We 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."
 17


24. We may, keeping in view the aforementioned backdrop, consider the

effect of the purported statements made by the respondent Nos. 1 and 2.



25. Section 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 thereunder;

(b) require any person to produce or deliver any
document or thing useful or relevant to the
enquiry;

(c) examine any person acquainted with the facts
and circumstances of the case."




26. How 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.



27. Exhibits 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.
 19


28. This 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].



29. The 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.



30. Concededly, 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.

[See Ritesh Chakeravarty v. State of Madhya Pradesh JT 2006 (12) SC 416

and Noor Aga (supra)].
 21




31. Where 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.



32. Mr. 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 corroborated, opined:



"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.
Regarding the 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 police officials.




33. Yet 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 interrogation.



34. Reliance 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.

Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram [(2006)

13 SCC 210], this Court opined:

"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
doubt."



35. In 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:


"19. Apart 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..."



36. In Ravindran Alias John v. Superintendent of Customs [(2007) 6 SCC

410], this Court opined:


"19...The confessional statement of a co-accused
could not be used as substantive evidence against
the co-accused."



37. In 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) 6 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 purpose.


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
custom official.


(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.
Confessional 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.



38. We, 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.



39. There 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.



40. There 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.
 28




41. Furthermore, 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]




42. For the reasons aforementioned, there is no merit in this appeal which

is dismissed accordingly.

In U.O.I. vs. Bal Mukund & Ors. held that

Union 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.



2. The factual matrix involved herein is as under:



Sub-Inspector Bajrang 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.



3. The purported confessions of the respondent Nos. 1 and 2 were

recorded on 21.06.1998, unofficial translated version whereof reads as

under:



"Statement of 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.

Statement of 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 my signature."



4. Indisputably, 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 thereto.



5. On 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.



6. Confessional 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."



7. Respondent 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.



8. Respondent 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.



9. The 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.



10. The 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 under:



"e) While 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."



11. Before 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 8/27 thereof



12. The learned Special Judge relying on or on the basis of the purported

confessions made by the respondents recorded a judgment of conviction and

sentence.



13. The High Court, however, reversed the said findings of the learned

Special Judge, opining:



(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 independent witness.

(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 was unsustainable.
 8




14. Mr. B.B. Singh, learned counsel appearing on behalf of the appellant,

would contend:



(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.
 9


(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 witness.



15. Mr. 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.



16. Mr. Santosh Kumar, learned counsel appearing on behalf of

respondent Nos. 1 and 2 would urge:



(i) The search and seizure having not been carried out in terms of

Standing Instructions No. 1/88, the same was vitiated in law.
 10


(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.

(v) Statements 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.



17. Respondent 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.



18. Section 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:



"Provided that 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."
 12


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 hours.



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 with.



19. The 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, stating:



"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."



20. For recording his conviction, confession of the respondent Nos. 1 and

2 had been taken into consideration.



21. Mr. 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:
 14



"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.
That material 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."




22. No 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.



23. We 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."
 17


24. We may, keeping in view the aforementioned backdrop, consider the

effect of the purported statements made by the respondent Nos. 1 and 2.



25. Section 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 thereunder;

(b) require any person to produce or deliver any
document or thing useful or relevant to the
enquiry;

(c) examine any person acquainted with the facts
and circumstances of the case."




26. How 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.



27. Exhibits 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.
 19


28. This 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].



29. The 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.



30. Concededly, 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.

[See Ritesh Chakeravarty v. State of Madhya Pradesh JT 2006 (12) SC 416

and Noor Aga (supra)].
 21




31. Where 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.



32. Mr. 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 corroborated, opined:



"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.
Regarding the 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 police officials.




33. Yet 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 interrogation.



34. Reliance 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.

Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram [(2006)

13 SCC 210], this Court opined:

"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
doubt."



35. In 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:


"19. Apart 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..."



36. In Ravindran Alias John v. Superintendent of Customs [(2007) 6 SCC

410], this Court opined:


"19...The confessional statement of a co-accused
could not be used as substantive evidence against
the co-accused."



37. In 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) 6 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 purpose.


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
custom official.


(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.
Confessional 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.



38. We, 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.



39. There 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.



40. There 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.
 28




41. Furthermore, 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]




42. For the reasons aforementioned, there is no merit in this appeal which

is dismissed accordingly.




...............................J.
[S.B. Sinha]
 29



................................J.
[Dr. Mukundakam Sharma]



................................J.
[H.L. Dattu]


New Delhi;
March 31, 2009
 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1397 OF 2007


U.O.I. ...Appellant

Versus

Bal Mukund & Ors. ...Respondents




JUDGMENT

S.B. SINHA, J :



1. Union 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.



2. The factual matrix involved herein is as under:



Sub-Inspector Bajrang 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.



3. The purported confessions of the respondent Nos. 1 and 2 were

recorded on 21.06.1998, unofficial translated version whereof reads as

under:



"Statement of 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.

Statement of 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 my signature."



4. Indisputably, 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 thereto.



5. On 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.



6. Confessional 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."



7. Respondent 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.



8. Respondent 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.



9. The 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.



10. The 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 under:



"e) While 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."



11. Before 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 8/27 thereof



12. The learned Special Judge relying on or on the basis of the purported

confessions made by the respondents recorded a judgment of conviction and

sentence.



13. The High Court, however, reversed the said findings of the learned

Special Judge, opining:



(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 independent witness.

(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 was unsustainable.
 8




14. Mr. B.B. Singh, learned counsel appearing on behalf of the appellant,

would contend:



(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.
 9


(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 witness.



15. Mr. 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.



16. Mr. Santosh Kumar, learned counsel appearing on behalf of

respondent Nos. 1 and 2 would urge:



(i) The search and seizure having not been carried out in terms of

Standing Instructions No. 1/88, the same was vitiated in law.
 10


(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.

(v) Statements 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.



17. Respondent 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.



18. Section 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:



"Provided that 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."
 12


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 hours.



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 with.



19. The 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, stating:



"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."



20. For recording his conviction, confession of the respondent Nos. 1 and

2 had been taken into consideration.



21. Mr. 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:
 14



"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.
That material 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."




22. No 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.



23. We 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."
 17


24. We may, keeping in view the aforementioned backdrop, consider the

effect of the purported statements made by the respondent Nos. 1 and 2.



25. Section 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 thereunder;

(b) require any person to produce or deliver any
document or thing useful or relevant to the
enquiry;

(c) examine any person acquainted with the facts
and circumstances of the case."




26. How 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.



27. Exhibits 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.
 19


28. This 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].



29. The 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.



30. Concededly, 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.

[See Ritesh Chakeravarty v. State of Madhya Pradesh JT 2006 (12) SC 416

and Noor Aga (supra)].
 21




31. Where 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.



32. Mr. 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 corroborated, opined:



"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.
Regarding the 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 police officials.




33. Yet 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 interrogation.



34. Reliance 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.

Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram [(2006)

13 SCC 210], this Court opined:

"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
doubt."



35. In 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:


"19. Apart 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..."



36. In Ravindran Alias John v. Superintendent of Customs [(2007) 6 SCC

410], this Court opined:


"19...The confessional statement of a co-accused
could not be used as substantive evidence against
the co-accused."



37. In 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) 6 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 purpose.


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
custom official.


(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.
Confessional 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.



38. We, 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.



39. There 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.



40. There 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.
 28




41. Furthermore, 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]




42. For the reasons aforementioned, there is no merit in this appeal which

is dismissed accordingly.