Surinder Kumar Khanna vs Intelligence Officer Directorate Of Revenue Intelligence

Uday Umesh Lalit, J

Special Leave to Appeal granted.

This appeal challenges the correctness of Judgment and Order dated 21.12.2016 passed by the High Court of Punjab and Haryana at Chandigarh in

Criminal Appeal No.798 of 2014 by which the High Court affirmed the conviction of the appellant for the offences punishable under Section 21(c)

read with Section 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPC Act’, for short).

According to the Prosecution:-

a. On a specific information that narcotic drugs were going to be transported from Jammu side to Chandigarh via Hoshiarpur in a white colour Indica

car bearing registration no.PB-02AJ-7288, the officers of Directorate of Revenue Intelligence (for short ‘DRI’) laid picket at toll barrier at

Hoshiarpur-Garhshankar road. At 10:35 hours, they intercepted an Indica car of white colour which was coming from Hoshiarpur side bearing

registration No.PB-02AJ-7288. The car was being driven by one Raj Kumar @ Raju whereas one Surinder Pal Singh was sitting next to him. To

ensure safe search of the car and personal search of occupants, the car was taken to the office of Superintendent, Central Excise Range, Model

Town, Hoshiarpur. The officers of DRI served notice under Section 50 of the NDPS Act upon said Raj Kumar @ Raju and Surinder Pal Singh.

b. As desired by said suspects, their personal searches and that of the car were conducted in the presence of independent witnesses and Shri SJS

Chugh, Senior Intelligence Officer. Personal searches of the suspects did not result in recovery of any incriminating material. However, when the car

was searched, four packets wrapped with yellowish adhesive tapes were found concealed in the door of dickey of the car. The gross weight of those

four packets came to 4.300 kg.

c. Each of those packets was containing white colour granules/powder which gave a very pungent smell. The pinch of each packet was tested, which

showed the presence of heroin. The recovered heroin weighing 3.990 kgs was valued at Rs.19,95,000/-. Those four packets were taken into

possession. Two representative samples of 5 gms each were taken out from each of the packets as per rules. Indica car was also seized by the

officers of DRI. Statements of both the suspects were recorded. From their statements, it transpired that four packets of heroin had been taken from

one Mr. Goldy r/o Vijaypur, Jammu and those packets were to be delivered to a person of African origin near PGI Chandigarh.

d. Initially a complaint under Sections 21, 22, 23, 28, 29 and 60 of the NDPS Act was lodged against said Raj Kumar @ Raju and Surinder Pal Singh.

During investigation, the involvement of the present appellant in the drug racket was said to have been made out. After the appellant was arrested, a

supplementary complaint was presented against him and the matter was taken up with the main complaint. After hearing arguments, charges were

framed against said Raj Kumar @ Raju and Surinder Pal Singh and the appellant for the offences under Sections 21, 29 and 60 of the NDPS Act.

The prosecution, in support of its case examined four witnesses. After hearing submissions, the trial court convicted and sentenced all three

accused. The appellant was convicted under Section 21(c) read with Section 29 of the NDPS Act and was sentenced to undergo rigorous

imprisonment for 12 years and to pay a fine of Rs.1 lakh, in default whereof to undergo further rigorous imprisonment for three years. Similar orders

for conviction and sentence were recorded against other two accused namely Raj Kumar @ Raju and Surinder Pal Singh. All three convicted accused

preferred appeals; namely Criminal Appeal No.D-955-DB-2013 was filed by Raj Kumar @ Raju and Surinder Pal Singh while Criminal Appeal No.D-

798-DB-2014 was preferred by the appellant. Both these appeals were heard together by the High Court.

As regards the appellant, it was observed by the High Court that he was specifically named by co-accused Raj Kumar @ Raju and Surinder Pal

Singh in their statements. Apart from such statements nothing was produced on record to indicate the involvement of the appellant. The High Court

however found that the case against the appellant was made out. It was observed:

“Offence of abetment under Section 29 of NDPS Act stood established against accused Surinder Kumar Khanna, showing that he was involved in

drug trafficking. He was specifically named by accused Raj Kumar @ Raju and Surinder Pal Singh in their statements. Such statements of accused

Raj Kumar @ Raju and Surinder Pal Singh recorded under Section 67 of the NDPS Act are admissible in evidence and are not hit by Section 25 of

the Evidence Act because the officers of DRI, who had apprehended Raj Kumar @ Raju and Surinder Pal Singh, traveling in an Indica car and

effecting recovery from them do not come within the definition of police officers.â€​.

The High Court thus affirmed the order of conviction as recorded against the appellant but reduced the sentence to rigorous imprisonment for a period

of 10 years and to pay fine of Rs.1 lakh, in default whereof to undergo further rigorous imprisonment for 1½ years. Similar orders of sentence were

passed in respect of other co-accused namely Raj Kumar @ Raju and Surinder Pal Singh.

In this appeal challenging the correctness of the conviction and sentence rendered as against the appellant, it was submitted by Mr. Jayant Bhushan,

learned Senior Advocate that apart from the so called statements of co-accused Raj Kumar @ Raju and Surinder Pal Singh there was nothing against

the appellant and that he was neither arrested at the site nor was the contraband material in any way associated with him. Mr. Maninder Singh,

learned Additional Solicitor General appearing for the respondent however supported the judgment of conviction and sentence rendered against the

appellant. He placed on record call data reports showing that around the time when the co-accused was arrested, the appellant was in touch with a

person named Chaudhary from Dubai. The learned Additional Solicitor General however fairly accepted that apart from the statements of the co-

accused there was nothing to link the appellant with said convicted accused. The call data reports also did not indicate that around the time when co-

accused were apprehended, the appellant was in touch with either of them.

For the present purposes, we will proceed on the footing that the statements of co-accused were recorded under and in terms of Section 67 of the

NDPS Act. As regards such statements, a bench of two Judges of this Court after referring to and relying upon the earlier Judgments, observed in

Kanhaiyalal v. Union of India (2008) 4 SCC 668, as under:

“45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case (1990) 2 SCC

409 with which we agree, that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a

“police officer†within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the NDPS Act is not

the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a

statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of

Sections 24 to 27 of the Evidence Act.â€​

Later, another bench of two Judges of this Court in Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31 was of the view that the matter required

reconsideration and therefore, directed that the matter be placed before a larger bench. It was observed in Tofan Singh (supra) as under:

“40. In our view the aforesaid discussion necessitates a re-look into the ratio of Kanhaiyalal case. It is more so when this Court has already

doubted the dicta in Kanhaiyalal in Nirmal Singh Pehlwan (2011) 12 SCC 298 wherein after noticing both Kanhaiyalal as well as Noor Aga (2008) 16

SCC 417, this Court observed thus: (Nirmal Singh Pehlwan case, SCC p. 302, para 15)

“15. We also see that the Division Bench in Kanhaiyalal case had not examined the principles and the concepts underlying Section 25 of the

Evidence Act, 1872 vis-Ã -vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an

accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar case. The latest judgment in point of time is Noor Aga

case which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga case

particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with.â€​

For the aforesaid reasons, we are of the view that the matter needs to be referred to a larger Bench for reconsideration of the issue as to whether

the officer investigating the matter under the NDPS Act would qualify as police officer or not.

In this context, the other related issue viz. whether the statement recorded by the investigating officer under Section 67 of the Act can be treated

as confessional statement or not, even if the officer is not treated as police officer also needs to be referred to the larger Bench, inasmuch as it is

intermixed with a facet of the 1st issue as to whether such a statement is to be treated as statement under Section 161 of the Code or it partakes the

character of statement under Section 164 of the Code.â€​

Thus the issue whether statement recorded under Section 67 of the NDPS Act can be construed as a confessional statement even if the officer

who recorded such statement was not to be treated as a police officer, has now been referred to a larger Bench.

Even if we are to proceed on the premise that such statement under Section 67 of the NDPS Act may amount to confession, in our view, certain

additional features must be established before such a confessional statement could be relied upon against a co-accused. It is noteworthy that unlike

Section 15 of Terrorist and Disruptive Activities Act, 1987 Similarly: Section 18 of Maharashtra Control of Organised Crime Act, 1999 Â which

specifically makes confession of a co-accused admissible against other accused in certain eventualities; there is no such similar or identical provision in

the NDPS Act making such confession admissible against a co- accused. The matter therefore has to be seen in the light of the law laid down by this

Court as regards general application of a confession of a co- accused as against other accused.

In Kashmira Singh v. State of Madhya Pradesh (1952) SCR 526, this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. The

King (1949) 76 Indian Appeal 147 at 155 and laid down as under:

“Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the

confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as

the Privy Council say in Bhuboni Sahu v. The King ""It does not indeed come within the definition of"" 'evidence' contained in section 3 of the Evidence

Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination."" Their Lordships also

point out that it is ""obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approver, which is not

subject to any of those infirmities.

They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in ""support of other evidence."" In

view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still

exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an

accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the judge

refuses to believe him except in so far as he is corroborated ?

In our opinion, the matter was put succinctly by Sir 'Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty [1911] I.L.R. 38 CAl. 559 at 588

 where he said that such a confession can only be used to ""lend assurance to other evidence against a co-accused ""or, to put it in another way, as

Reilly J. did in In re Periyaswami Moopan [1931] I.L.R. 54 Mad. 75 at 77.

the provision goes no further than this--where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind

of confession de - scribed in section 30 may be thrown into the scale as an additional reason for believing that evidence.

Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence

against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it.

If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the

judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event

the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of

the confession he would not be prepared to accept.â€​

The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State

of Bihar(1964) 6 SCR 623 at 631-633 wherein it was observed:

“As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a

confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the

prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other

evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence

may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which

it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a

confession can only be used to “lend assurance to other evidence against a co-accusedâ€. In re Periyaswami Moopan Reilly . J., observed that the

provision of Section 30 goes not further than this: “where there is evidence against the co-accused sufficient, if believed, to support his conviction,

then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidenceâ€. In Bhuboni

Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that “a confession of a co-

accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence†contained in Section 3 of the

Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much

weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the

court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say

that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts

proved the case; it can be put into the scale and weighed with the other evidenceâ€. It would be noticed that as a result of the provisions contained in

Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is

evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though

confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as

defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the

confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the

quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the

judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view

has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has

been cited with approval.â€​

The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of

a co-accused admissible against another accused. For example: State vs. Nalini, (1999) 5 SCC 253, paras 424 and 704.

In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the

appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated

above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive

piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any

substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is

therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence

and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence.