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.
Friday, April 17, 2009
SUPREME COURT QUASHES RULE BARRING PARTNERS FROM MOVING COURTS
The Supreme Court has quashed a rule that debarred a partner of an unregistered firm in Maharashtra from filing a suit for dissolution of such firm. The apex court also held as illegal the law prohibiting the partner to sue for accounts of the dissolved firm or realize properties of such dissolved firm, unless the duration of the firm was only six months or it's capital was up to Rs 2,000.
"In our opinion sub-section 2A of Section 69 (of the Indian Partnership Act, 1932) inserted by the Maharashtra Amendment violates Articles 14, 19(1)(g) and 300A of the Constitution of India," said a bench comprising Justice Markandey Katju and Justice GS Singhvi in V. Subramaniam vs. Rajesh Raghuvandra Rao .The court said: "A partnership firm, whether registered or unregistered, is not a distinct legal entity, and hence the property of the firm really belongs to the partners of the firm. Sub-section 2A virtually deprives a partner in an unregistered firm from recovery of his share in the property of the firm or from seeking dissolution of the firm.
"Sub-section 2A virtually deprives a partner of a firm from his share in the property of the firm without any compensation. Also, it prohibits him from seeking dissolution of the firm although he may want it dissolved," the court said. The court further said the law was clearly unreasonable and arbitrary since by prohibiting suits for dissolution of an unregistered firm, for accounts and for realization of the properties of the firm, it creates a situation where businessmen will be very reluctant to enter into an unregistered partnership out of fear that they will not be able to recover the money they have invested in the firm or to get out of the firm if they wish to do so. There is no legal requirement, unlike in England, which makes registration of a firm compulsory, rather in India it is voluntary. Both registered and unregistered are legal, though of course registration and non-registration have different legal consequences, the court noted in its judgement. The bench set aside a Bombay high court order.
It said: "The high court was of the view that the object of the Maharashtra amendment was to induce partners to register and it was intended to protect third party members of the public. We cannot see how sub-section 2A of Section 69 in any way protects the third party members of the public. It makes it virtually impossible for partners in an unregistered firm to dissolve the firm or recover their share in the property of the firm. Hence it is totally arbitrary.
The apex court said that the primary object of registration of a firm is protection of third parties who were subjected to hardship and difficulties in the matter of proving as to who were the partners. Under the earlier law, a third party obtaining a decree was often put to expenses and delay in proving that a particular person was a partner of that firm. The registration of a firm provides protection to the third parties against false denials of partnership and the evasion of liability. Once a firm is registered under the Act the statements recorded in the register regarding the constitution of the firm are conclusive proof of the fact contained therein as against the partner. A partner whose name appears on the register cannot deny that he is a partner except under the circumstances provided. Even then registration of a partnership firm is not made compulsory under the Act. A partnership firm can come into existence and function without being registered.
However, the Maharashtra amendment effects such stringent disabilities on a firm that are crippling in nature. It lays down that an unregistered firm cannot enforce its claims against third parties. Similarly, a partner who is not registered is unable to enforce his claims against third parties or against his fellow partners. An exception to this disability was a suit for dissolution of a firm or a suit for accounts of a dissolved firm or a suit for recovery of property of a dissolved firm. Thus, a partnership firm can come into existence, function as long as there is no problem, and disappear from existence without being registered. This is changed by the 1984 amendment extending the bar of the proceedings to a suit for dissolution or recovery of property as well.
The apex court said the effect of the amendment is that a partnership firm is allowed to come into existence and function without registration but it cannot go out of existence (with certain exceptions). This can result into a situation where in case of disputes among partners the relationship of partnership cannot be put an end to by approaching a court.
A dishonest partner, if in control of the business, or if simply stronger, can successfully deprive the other partner of his dues from the partnership. It could result in extreme hardship and injustice, the court said. The court allowed an appeal filed by a partner of an unregistered firm seeking its dissolution. But another partner had taken the stand that in view of the prevailing law in state of Maharashtra, the legal suit was not maintainable.
Thursday, April 9, 2009
No Unsolicited Calls to Mobile Phones in India
The Delhi High Court restrained telemarketers from making unsolicited calls to mobile phone users, irrespective of the fact whether or not they are registered with the DND facility.
60 lakh register Nearly 60 lakh mobile subscribers have enrolled with the National-Do-Not-Call (NDNC) registry within just 10 days of its launch to avoid getting unsolicited sales calls from telemarketers.
A bench comprising Justice Tirath Singh Thakur and Justice Kailash Gambhir said if any telemarketer continues with such activities it would be illegal and the consumers can move against telecom companies in the consumer court. The court passed the order on a contempt petition filed by one Nivedita Sharma saying she had been getting unsolicited calls despite a consumer court order.
The High Court, had, however, earlier stayed the consumer court order, which imposed an exemplary fine of Rs 50 lakh on Airtel and the Cellular Operators Association of India (COAI) for “failure” to stop “unnerving unsolicited” calls and SMS by telemarketing and banking companies to mobile phone users.
The consumer court had also imposed a penalty of Rs 12.5 lakh each on ICICI and the American Express Bank for causing “immense nuisance” by making unsolicited communications such as SMS.
The high court said such calls should not be made to any consumer irrespective of whether one is registered with “do not disturb” (DND) registry as recommended by telecom regulator TRAI.
The DND facility has come into effect from September 1. Sharma had filed a complaint against Airtel, ICICI and American Express Bank alleging she had been receiving unsolicited calls and SMS on her mobile number.
IRDA to permit insurance company to set up of liaison offices in India
The Insurance Regulatory and Development Authority (IRDA) has been authorized to permit insurance companies registered outside India to set up liaison offices in the country.
The existing procedure for grant of permission by RBI for opening of an office by an insurance company registered outside India has been revised in consultation with the Government of India and it has been decided that hence forth such permission would be granted by IRDA.
In this context a “Liaison Office” would mean a place of business to act as a channel of communication between the Principal place of business or Head Office by whatever name called and entities in India but which does not undertake any commercial/ trading/ industrial activity, directly or indirectly, and maintains itself out of inward remittances received from abroad through normal banking channel.
Persons desirous of opening liaison offices shall apply to the Insurance Regulatory and Development Authority. The applicant company shall be required to comply with the terms and conditions of the General Permission granted by RBI under the Foreign Exchange Management Act, 1999 and any other law in force.
The permission for opening of liaison office in India by an insurance company registered outside India are subject to the terms and conditions as may be additionally stipulated by the Authority from time to time.
High drama as Saravana Bhavan owner surrenders
Chennai: P. Rajagopal, founder of the Saravana Bhavan restaurants, surrendered before a court Monday, five days after the Madras High Court sentenced him to life imprisonment for murdering his employee eight years ago.
There was high drama at the session's court as police refused to arrest him despite judge C.S. Murugan issuing an arrest warrant after receiving a petition of surrender from Rajagopal.
The police refused to enter the court as they did not want to risk entering the premises and arrest Rajagopal after having been chastised by the high court last week for assaulting lawyers, an official said on condition of anonymity.
Finally, flanked by his defence counsels and the prosecution, Rajagopal arrived at the nearby Esplanade police station followed by TV cameras and allowed himself to be arrested and sent off to prison in a police vehicle.
Awarded a 10-year rigorous imprisonment sentence by a fast track court earlier for murdering Prince Shantakumar in 2001 by a fast track court, Rajagopal's prison time was enhanced to life by a division bench of the Madras High Court, March 19.
"I have surrendered to the court but will appeal in the Supreme Court (against the conviction)," Rajagopal told reporters.
Rajagopal was not arrested despite the lapse of almost 100 hours after his conviction and cancellation of bail last Thursday.
The March 19 verdict was announced by a division bench comprising Justices P.K. Mishra and R. Banumathi, who convicted Rajagopal and six others.
He had also been accused of sexually harassing Shantakumar's widow, Jeevajothi, and the daughter of another employee Ramaswamy.
Rajagopal, 59, founded the Saravana Bhavan chain of hotels worldwide in 1981. The hotel chain has over 25 outlets in India, and several in other countries.
There was high drama at the session's court as police refused to arrest him despite judge C.S. Murugan issuing an arrest warrant after receiving a petition of surrender from Rajagopal.
The police refused to enter the court as they did not want to risk entering the premises and arrest Rajagopal after having been chastised by the high court last week for assaulting lawyers, an official said on condition of anonymity.
Finally, flanked by his defence counsels and the prosecution, Rajagopal arrived at the nearby Esplanade police station followed by TV cameras and allowed himself to be arrested and sent off to prison in a police vehicle.
Awarded a 10-year rigorous imprisonment sentence by a fast track court earlier for murdering Prince Shantakumar in 2001 by a fast track court, Rajagopal's prison time was enhanced to life by a division bench of the Madras High Court, March 19.
"I have surrendered to the court but will appeal in the Supreme Court (against the conviction)," Rajagopal told reporters.
Rajagopal was not arrested despite the lapse of almost 100 hours after his conviction and cancellation of bail last Thursday.
The March 19 verdict was announced by a division bench comprising Justices P.K. Mishra and R. Banumathi, who convicted Rajagopal and six others.
He had also been accused of sexually harassing Shantakumar's widow, Jeevajothi, and the daughter of another employee Ramaswamy.
Rajagopal, 59, founded the Saravana Bhavan chain of hotels worldwide in 1981. The hotel chain has over 25 outlets in India, and several in other countries.
Saravana Bhavan owner's son held for visa fraud
Chennai: The family that owns South Indian fast food chain Saravana Bhavan is in trouble, again.
First it was the father who went to jail for murder. Now, his son has been charged with cheating and fraud.
R Shivakumar, son of the owner of Hotel Saravana Bhavan, one of the most popular south Indian restaurant chains, has been sent to 15 days judicial custody for allegedly attempting to obtain US visas for his employees using forged documents.
“We have applied for bail and the application comes to court on November 11. He has been remanded to 15 days of judicial custody,” Shivakumar’s defence counsel Muthukannayan said
Sivakumar was arrested on Saturday night following a complaint from the US Consulate.
He has been booked under five sections of the Indian Penal Code including Section 420 which deals with cheating and fraud.
After initial interrogation, Shivakumar was presented in court on Sunday evening.
The founder of Hotel Saravana Bhavan, Rajagopal, was charged with murder and has been out on bail for more than two years now. Now his son is going to spend the next 14 days in judicial custody.
But the counsel for Hotel Saravana Bhavan is hoping that they can bail out Sivakumar just like they succeeded in bailing out his father years ago.
Madras HC awards life term to Saravana Bhavan owner
The Bench dismissed appeals by the convicted persons seeking acquittal in the case. Rajagopal (59), founder of the Saravana Bhavan chain of hotels, was found guilty by a fast track court in connection with the murder of an em-ployee Prince Shantakumar in 2001. The court had sentenced him to ten years rigorous imprisonment in 2004.
In November 2008, Rajagopal’s son P Shiva Kumar was arrested on charges of forging documents to smuggle people into the US. The arrest also resulted in the cancellation of several lucrative contracts of the hotel chain to supply food to American diplomatic missions.
According to the hotel group’s website, it has 22 outlets in the south, three in the north and 22 outlets abroad.
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