Ram Singh vs Central Bureau Of Narcotics

RAM SINGH ... APPELLANT

VERSUS

CENTRAL BUREAU OF NARCOTICS ...RESPONDENT

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. Appellant aggrieved by his conviction and sentence is

before us with the leave of the Court.

2. According to the prosecution a secret information led to

recovery of 2.1 Kgms. of opium by PW.7, Abdul Mazid, the

District Opium Officer from a room adjoining the kitchen of a

hotel situated at Sagrana on Neemuch-Chittor road. Appellant

was working as servant in the said hotel. Jagdish Mawal

(PW.6) the then Deputy Commissioner of Narcotics was one of

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the members of the search party, who had seized the opium,

drawn the seizure memo and recorded the statement (Ex.P/12)

of the appellant on the same day. PW.8, Mahaveer Singh, at

the relevant time was working as Inspector in the Central

Bureau of Narcotics and on 19th July, 1997 itself at 23:45 hrs.,

he was appointed as the Investigating Officer of the case. He

produced the appellant before the Special Judge on 20th July,

1997 and at his request appellant was remanded to his

custody till 21st July, 1997. He recorded the statement

(Ex.P/15) of the appellant on 20th July, 1997. In the statement

(Ex.P/12) appellant confessed that the opium seized was

brought by him in the hotel. In another confessional

statement (Ex.P/15) recorded by the Investigating Officer

appellant confessed that he had been working in the hotel for

the last two months and brought the opium to the hotel from

the house of its owner on his direction. He further confessed

that opium tablets used to be sold to the truck drivers at the

rate of Rs.30/- per tola.

2 3. Opium seized was sent to the Forensic Science

Laboratory for examination which found presence of 4.31 per

cent of morphine in it. After the confessional statement

recorded by the Investigating Officer on 20th July, 1997 he

produced the appellant before the Special Judge on 21st July,

1997 along with the case diary and the copy of the same was

furnished to him.

4. Both the confessional statements of the appellant

recorded by the officers of the Central Bureau of Narcotics

were considered admissible in evidence and relying on the

same the trial court held that the appellant was in possession

of opium and accordingly convicted him under Section 8 read

with Section 18 of the Narcotic Drugs and Psychotropic

Substances Act (hereinafter referred to as the "Act") and

sentenced him to undergo rigorous imprisonment for ten years

and fine of Rs.1 lakh, in default to suffer rigorous

imprisonment for two years. The order of conviction and

sentence has been affirmed by the High Court in appeal.

3 5. Mr. Sushil Kumar Jain, learned Counsel appearing on

behalf of the appellant submits that the two confessional

statements made by the appellant before the authorities of

Central Bureau of Narcotics are not only inadmissible in

evidence but also not voluntary and further not corroborated

by any other evidence and, therefore, the order of conviction

and sentence is fit to be set aside. He further submits that if

the confessional statements are taken in their entirety the

appellant cannot be held to be in possession of opium or

selling the opium so as to attract the mischief of Section 8/18

of the Act.

6. Mr. Ashok Kumar Shrivastava, learned Counsel

appearing on behalf of the respondent, however, contends that

confessional statements made by the appellant are admissible

and voluntary and that clearly establish the guilt of the

appellant and, therefore, he was rightly convicted and

sentenced.

7. In view of the rival submissions questions which fall for

determination in this appeal are as follows:

4 (i) Whether the confessions made before the officers of

the Central Bureau of Narcotics are admissible in evidence;

(ii) Whether the confessions made were voluntary in

nature and if so without corroboration, can it form the basis

for conviction; and

(iii) Whether the appellant can be said to be in

possession of the opium or selling the same.

8. In order to answer these questions it is expedient to

examine the scheme of the Act. Section 42 of the Act confers

on specified categories of officers power of entry, search,

seizure and arrest without warrant or authorization. Section

43 thereof confers the power of seizure and arrest. Section 51

of the Act, inter alia, provides application of the provisions of

Code of Criminal Procedure to all warrants issued and arrests,

searches and seizures made under the Act in so far as they are

not inconsistent with its provisions. Power to call for

information to the officers specified is conferred by Section 67

of the Act and the confessions in the present case have been

recorded in exercise of the said power. Section 25 of the

5 Evidence Act makes confessional statement given by an

accused before police officers inadmissible in evidence which

cannot be brought on record by the prosecution to obtain

conviction. Further Section 26 of the Evidence Act in no

uncertain terms provides that the confession made while in

custody of police officer cannot be proved against accused to

support the criminal charge. Therefore, what needs to be

considered is as to whether the officers of the Central Bureau

of Narcotics, who had recorded the confessions, are police

officers within the meaning of Section 25 and 26 of the

Evidence Act. True it is that Section 53 of the Act confers

powers to the Central Government to invest officers of the

specified categories, the powers of an officer-in-charge of police

station but that itself, in our opinion, shall not make them the

police officers within the meaning of Section 25 and 26 of the

Evidence Act. The officers with whom lie the powers of search,

seizure and investigation under the Act have not been

conferred with the power to submit report under Section 173

of the Code of Criminal Procedure. Such officer is required to

lay complaint in the Court of Special Judge for prosecuting an

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accused. In our opinion the power to submit report under

Section 173 of the Code of Criminal Procedure is necessary to

make the officers of the Central Bureau of Narcotics police

officers within the meaning of Section 25 and 26 of the

Evidence Act. The important attribute of Police Officer is not

only to investigate but also to launch prosecution by filing a

report or charge-sheet. In view of the pronouncement of this

Court in the case of Raj Kumar Karwal vs. Union of India

and others, 1990 (2) SCC 409, this question does not need

much discussion. This was a case under the Narcotic Drugs

and Psychotropic Substances Act itself and on review of large

number of authorities, this Court came to the following

conclusion in paragraph 22 of the judgment which reads as

follows:

".........The important attribute of police power is not

only the power to investigate into the commission of

cognizable offence but also the power to prosecute

the offender by filing a report or a charge-sheet

under Section 173 of the Code. That is why this

Court has since the decision in Badku Joti Savant v.

State of Mysore AIR 1966 SC 1746, accepted the

ratio that unless an officer is invested under any

special law with the powers of investigation under

the Code, including the power to submit a report

under Section 173, he cannot be described to be a

`police officer' under Section 25, Evidence Act........."

7 9. This Court had the occasion to consider this question

further in the case of Kanhaiyalal vs. Union of India, 2008

(4) SCC 668, wherein it has been held as follows:

"44. In addition to the above, in Raj Kumar Karwal v. Union of India this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an officer in charge of a police station under Section 53 of the NDPS Act, 1985, are not "police officers" within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view.

45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case 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."

10. From what has been observed above, the officers vested

with the powers of investigation under the Act are not police

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officers and, therefore, the confessions recorded by such

officers are admissible in evidence. Therefore, the question

posed at the outset is answered in the affirmative and it is

held that officers of the Central Bureau of Narcotics are not

police officers within the meaning of Section 25 and 26 of the

Evidence Act and, hence, confessions made before them are

admissible in evidence. In view of aforesaid there is no escape

from the conclusion that the confessions made by the

appellant before PW.6, Jagdish Mawal and PW.8, Mahaveer

Singh are admissible in evidence and cannot be thrown out of

consideration.

11. Now we proceed to consider the second question set out

at the outset and in order to answer that we deem it

appropriate to reproduce Section 24 of the Indian Evidence Act

which reads as follows:

"24.Confession caused by inducement, threat or

promise, when irrelevant in criminal

proceeding.--A confession made by an accused

person is irrelevant in a criminal proceeding, if the

making of the confession appears to the Court to

have been caused by any inducement, threat or

promise, having reference to the charge against the

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accused person, proceeding from a person in

authority and sufficient, in the opinion of the Court,

to give the accused person grounds, which would

appear to him reasonable, for supposing that by

making it he would gain any advantage or avoid any

evil of a temporal nature in reference to the

proceedings against him."

12. From the plain reading of the aforesaid provision it is

evident that a confession made by an accused is rendered

irrelevant in criminal proceeding if the making of the

confession appears to the Court to have been caused by any

inducement, threat or promise with reference to the charge

against the accused. A confession, if it is voluntary, truthful,

reliable and beyond reproach is an efficacious piece of

evidence to establish the guilt of the accused. However, before

solely acting on confession, as a rule of prudence, the Court

requires some corroboration but as an abstract proposition of

law it cannot be said that a conviction cannot be maintained

solely on the basis of the confession made under Section 67 of

the Act.

13. Bearing in mind the principles aforesaid, now, we

proceed to consider the facts of the present case. Appellant's

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first confession was recorded by PW.6, Jagdish Mawal on 19th

July, 1997 and he was produced before the Court on 20th July,

1997 and he made no grievance in regard to the confession

recorded. Another confession was recorded on 20th July, 1997

and, thereafter, he was produced before the Special Judge on

21st July, 1997 and a copy of the police diary was handed over

to him. This obviously would had contained the confessions

made by him. No complaint about the same was made then

also. Thereafter appellant was produced before the Court

several times but he never retracted his confession. The

appellant retracted the confession made by him for the first

time in his statement under Section 313 of the Code of

Criminal Procedure. In our opinion, when an accused is made

aware of the confession made by him and he does not make

complaint within a reasonable time, same shall be a relevant

factor to adjudge as to whether the confession was voluntary

or not. Here in the present case appellant was produced

before the Court on several dates and at no stage he made any

complaint before the Special Judge of any torture or

harassment in recording the confession. It is only when his

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statement was recorded under Section 313 of the Code of

Criminal Procedure that he retracted and denied making such

a confession and went to the extent of saying that his

signatures were obtained on blank pages. In the facts and

circumstances of the case we are of the opinion that the

confessional statements made by the appellant were voluntary

in nature and could form the basis for conviction. The view

which we have taken above finds support from the judgment of

this Court in the case of M. Prabhulal v. Assistant Director,

Directorate of Revenue Intelligence, 2003 (8) SCC 449, in

which it has been held as follows:

"It has been established that the Customs Office was about 20 km from the place where the truck and the car were apprehended. Having regard to the large quantity of the heroin, the said vehicles with Accused 2, 3 and 6 were brought to the Customs Office. Further, Accused 1 and 2 did not know Tamil. A Hindi-knowing officer had to be arranged. There was, under the circumstances no delay in recording the statements of the appellants. Further, it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial Judge under Section 313 of the Code of Criminal Procedure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made

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and can, thus, be made the basis of the appellants' conviction."

(underlining ours)

14. Same view has been reiterated by this Court in the case

of Kanhaiyalal (supra) in which it has been observed as

follows:`

"Since it has been held by this Court that an officer for the purposes of Section 67 of the NDPS Act read with Section 42 thereof, is not a police officer, the bar under Sections 24 and 27 of the Evidence Act cannot be attracted and the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person. Since a conviction can be maintained solely on the basis of a confession made under Section 67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant."

The second question posed at the outset is thus

answered accordingly.

15. Now we proceed to consider the last question, i.e,

whether the appellant can be held guilty for being in

possession or involved in selling the opium so as to attract the

mischief of Section 8/18 of the Act. In sum and substance the

confession of the appellant is that he was working in the hotel

for the last two months and brought the opium from the house

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of the hotel-owner to the hotel, where it was being sold in

tablets to the truck-drivers. In the confession appellant has

not stated or for that matter none of the witnesses have

deposed that he was involved in selling the opium-tablets.

Therefore, the appellant cannot be held guilty for selling

opium. Whether in the state of evidence appellant can be held

guilty for possessing the opium only on the ground that he

brought the opium from the house of the owner to the hotel is

another question which requires adjudication. It is trite that

to hold a person guilty, possession has to be conscious.

Control over the goods is one of the tests to ascertain

conscious possession so also the title. Once an article is

found in possession of an accused it could be presumed that

he was in conscious possession. Possession is a

polymorphous term which carries different meaning in

different context and circumstances and, therefore, it is

difficult to lay down a completely logical and precise definition

uniformly applicable to all situations with reference to all the

statutes. A servant of a hotel, in our opinion, cannot be said

to be in possession of contraband belonging to his master

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unless it is proved that it was left in his custody over which he

had absolute control. Applying the aforesaid principle when

we consider the facts of the present case it is difficult to hold

that opium was in possession of the appellant. There is no

evidence on record to suggest that the appellant was in

occupation of the room from where opium was recovered.

Further the evidence clearly points out that title to the opium

vested in the owners of the hotel. The confession given by the

appellant was only that he was servant of the owners of the

hotel from where the opium was recovered. In the face of the

state of evidence it is difficult to hold that the appellant was in

conscious possession of the opium. Section 18 of the Act

prescribes punishment for possession and that possession, in

our opinion, has to be conscious. In the facts of the present

case it is difficult to hold that the appellant was in possession

of the opium and, therefore, his conviction and sentence

cannot be sustained.

15 16. In the result, the appeals are allowed, impugned

judgment of conviction and sentence is set aside. Appellant is

on bail, his bail bonds are discharged.

................................................J.

(HARJIT SINGH BEDI)

................................................J.

(CHANDRAMAULI KR. PRASAD)

NEW DELHI,

APRIL 28, 2011.

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