Tuesday, 17 September 2019

Precaution to be taken by court before accepting confession of accused in offence under NDPS Act

That brings us to the confessional statement of the
appellant recorded by PW-1. Admittedly, this confession
was recorded after the appellant was arrested. It is
true that the issue, whether a statement recorded under
Section 67 of the NDPS Act can be construed as a

confessional statement even if the officer who has

ecorded such statement was not to be treated as a police
officer, has been referred to a larger Bench in the case
of Tofan Singh v. State of Tamil Nadu1.
We, for the decision of this case, therefore,
proceed on the premise that the confession is admissible.
Even if it is admissible, the Court has to be satisfied
that it is a voluntary statement, free from any pressure
and also that the accused was apprised of his rights
before recording the confession. No such material has
been brought on the record of this case. It is also well
settled that a confession, especially a confession
recorded when the accused is in custody, is a weak piece
of evidence and there must be some corroborative
evidence. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.296 OF 2014

MOHAMMED FASRIN  V  STATE REP. BY THE INTELLIGENCE OFFICER 

DEEPAK GUPTA, J.
Dated:September 04, 2019

This appeal by the accused is directed against the
judgment dated 19.02.2008 of the Madras High Court
whereby it upheld the judgment dated 16.12.2005 of the
District and Sessions Judge, Madurai acting as the
Special Court for Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS Act) cases and convicted the
accused along with three others for having committed
offences under the NDPS Act. As far as the appellant is
concerned, he was convicted for having committed offences
under Section 8(c) read with 29, 21 and 23(c) and 27(A)
of the NDPS Act and apart from that appellant had
committed the offence punishable under Section 8(c) read
with 27(A) of the Act and sentenced to undergo rigorous

imprisonment for a period of 15 years and to pay fine of
Rs.1,50,000/- and in default of payment to undergo simple
imprisonment for one year. Offence under Section 27A of
the Act relates to punishment for financing illicit
traffic and harbouring offenders and reads as follows:
27A. Punishment for financing illicit traffic
and harbouring offenders.- Whoever indulges in
financing, directly or indirectly, any of the
activities specified in sub-clauses (i) to (v)
of clause (viiia) of section 2 or harbours any
person engaged in any of the aforementioned
activities, shall be punishable with rigorous
imprisonment for a term which shall not be less
than ten years but which may extend to twenty
years and shall also be liable to fine which
shall not be less than one lakh rupees but
which may extend to two lakh rupees:
Provided that the court may, for reasons
to be recorded in the judgment, impose a fine
exceeding two lakh rupees"
The essential ingredient of this offence is that
the prosecution must prove that the accused has financed
directly or indirectly any of the activities falling in
sub-clause (i) to (v) of Clause (viiia) of Section 2 of
the Act or has harbored any person engaged for the
aforesaid activities. As far as the case of the
prosecution is concerned, it is only of financing and not
of harboring.
Section 8(c) of the NDPS Act reads as follows:
8. Prohibition of certain operations.- No
person shall-
(a) .........
(b) .........

(c) produce, manufacture, possess, sell,
purchase, transport, warehouse, use, consume,
import inter-State, export inter-State, import
into India, export from India or tranship any
narcotic drug or psychotropic substance,
except for medical or scientific purposes and
in the manner and to the extent provided by the
provisions of this Act or the rules or orders
made thereunder and in a case where any such
provision, imposes any requirement by way of
licence, permit or authorisation also in
accordance with the terms and conditions of
such licence, permit or authorisation:
Provided that, and subject to the other
provisions of this Act and the rules made
thereunder, the prohibition against the
cultivation of the cannabis plant for the
production of ganja or the production,
possession, use, consumption, purchase, sale,
transport, warehousing, import inter-State and
export inter-State of ganja for any purpose
other than medical and scientific purpose shall
take effect only from the date which the
Central Government may, by notification in the
Official Gazette, specify in this behalf:
[Provided further that nothing in this section
shall apply to the export of poppy straw for
decorative purposes.]"
This is basically an offence for exporting or
importing into India or exporting from India contraband
substance. Though, the charges against the appellant were
of financing and of indulging in international smuggling
of contraband, virtually no evidence in this regard has
been found.
We now may refer to the facts necessary for
disposal of this case. On 04.01.2003, the Intelligence

Officer, Narcotic Department received information that at
the instance of the present appellant 7.4 kgs. of heroin
would be carried in a Toyota Qualis vehicle bearing No.TN
31 C 9117. This vehicle was apprehended when it was
parked at Tamil Nadu Hotel of Madurai - Alagar Koil road
and 7.4 kgs. of heroin was recovered from it. At that
time accused no.2 to 6 were sitting in the car. Accused
nos.2 to 4 have been convicted under various provisions
of the NDPS Act. We are not concerned with them since, to
our knowledge, no appeal has been filed by them.
As far as the present appellant is concerned, the
only evidence, if it can be called that, is the statement
of a co-accused (accused no.2) and his own alleged
confession. As far as statement of co-accused (Ext.P41)
is concerned, in that the co-accused states in great
detail as to how he came into contact with one other
person also called Mohammed in Bombay who had instructed
him to go to Manglapuram from Bombay. There he was again
asked to come to Hotel Airline at Manglapuram where he
met the said Mohammed of Bombay. It was that Mohammed of
Bombay, who handed over the vehicle to him and told him
that 7.4 kgs of heroin is kept hidden in 7 packets in a
false compartment beneath the front seat of the car. The
only allegation with regard to appellant is that after
taking delivery of the contraband from Mohammed of
Bombay, the co-accused was to take the heroin and hand it

over to one Nalliappan. The said Nalliappan was to
further hand over the heroin to the appellant. Neither
the said Mohammed from Bombay nor Nalliappan have been
examined in the case nor they have been arrayed as
accused. Therefore, the link evidence is totally
missing. Furthermore, the allegation is only in the
nature of hearsay that Mohammed had told the co-accused
that he had to deliver the contraband to the present
appellant. Even if we take the confession of the coaccused
Hasan Mohamed (A-2) into consideration, it would
only prove that Mohammed (from Bombay) had told the coaccused
that Nalliappan would handover the contraband to
the present appellant. This evidence of a co-accused is a
very weak type of evidence which needed to be
corroborated by some other evidence. The confession of a
co-accused gives a clue to the investigating authorities
as to how to investigate the matter and against whom to
investigate the matter. Thereafter, it is for the
investigating officers to collect evidence against the
said person who has been named by the co-accused. In the
present case no such corroborative evidence has been led.
That brings us to the confessional statement of the
appellant recorded by PW-1. Admittedly, this confession
was recorded after the appellant was arrested. It is
true that the issue, whether a statement recorded under
Section 67 of the NDPS Act can be construed as a

confessional statement even if the officer who has
recorded such statement was not to be treated as a police
officer, has been referred to a larger Bench in the case
of Tofan Singh v. State of Tamil Nadu1.
We, for the decision of this case, therefore,
proceed on the premise that the confession is admissible.
Even if it is admissible, the Court has to be satisfied
that it is a voluntary statement, free from any pressure
and also that the accused was apprised of his rights
before recording the confession. No such material has
been brought on the record of this case. It is also well
settled that a confession, especially a confession
recorded when the accused is in custody, is a weak piece
of evidence and there must be some corroborative
evidence. The confession of the co-accused, which was
said to be a corroborative piece of evidence, has been
discussed above and is of no material value. Therefore,
other than the two confessional statements – one of the
co-accused and the other of the accused, the prosecution
has gathered no evidence to link the appellant with the
commission of the offence. As such, without going into
the legality of the admissibility of the confession, we
hold that even if these confessions are admissible then
also the evidence is not sufficient to convict the
accused.
1 (2013) 16 SCC 31

We, accordingly, find force in the appeal. We hold
that both the Trial Court and the High Court wrongly
convicted the accused. We set aside the judgment of both
the Courts below. Appeal is accordingly allowed. The
accused is already on bail. His bail bonds are
discharged.
...................J.
(DEEPAK GUPTA)
...................J.
(ANIRUDDHA BOSE)
New Delhi
September 04, 2019

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