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Issue for consideration:Matter pertains to admissibility in evidence of the confessionalstatement recorded by the Narcotics Control Bureau officers u/s.67 of Narcotic Drugs and Psychotropic Substances Act, 1985; andproving of possession of contraband by the prosecution beyondreasonable doubt.Narcotic Drugs and Psychotropic Substances Act, 1985 – s. 67– Confession statement made by an accused u/s. 67 before anofficer of Narcotics Control Bureau – Admissibility in evidence:Held: Statement made by an accused and recorded u/s. 67 cannotbe used as a confessional statement in the trial of an offence underthe NDPS Act – Any confessional statement made by an accusedto an officer invested with the powers u/s. 53 of the NDPS Act, isbarred for the reason that such officers are “police officers” withinthe meaning of s. 25 of the Evidence Act – Evidence Act, 1872– s. 25. [Para 10]Narcotic Drugs and Psychotropic Substances Act, 1985 – s.54 – Presumption from possession of illicit articles – “Proofbeyond reasonable doubt vis-a-vis “preponderance ofprobability”:Held: Initial burden is cast on the prosecution to establishthe essential factors on which its case is premised – After theprosecution discharges the said burden, the onus shifts to theaccused to prove his innocence – However, the standard of proofrequired for the accused to prove his innocence, is not as high asexpected of the prosecution – For attracting the provisions of s.54, it is essential for the prosecution to establish the element ofpossession of contraband by the accused for the burden to shift tothe accused to prove his innocence – This aspect of possessionof the contraband has to be proved by the prosecution beyondreasonable doubt. [Paras 15 and 16]Narcotic Drugs and Psychotropic Substances Act, 1985 –ss. 67 and 54 – Two persons convicted for possession ofcommercial quantity of heroin – Out of the two, only accusedwas apprehended by Narcotics Control Bureau-NCB fromthe spot where Naka laid and co-accused was arrested later– Co-accused being repeated offender sentenced to deathu/s. 21(c) rw s. 31A(1a) which was modified to 14 years ofrigorous imprisonment – Accused sentenced u/s. 21(c) torigorous imprisonment for twelve years with fine, by thecourts below – Sustainability of:Held: Confessional statement of the accused recorded by theNCB officers u/s. 67, who had attributed a role to co-accusedand subsequently statement of co-accused was recorded u/s. 67are rejected as it cannot be used as a confessional statementhaving been recorded by the NCB officials who are to be treatedas “police officers” u/s. 25 of the Evidence Act – Furthermore, noother independent incriminating evidence for convicting co-accused,thus, his conviction cannot be sustained – As regards the accused,the conviction does not hinge solely on his confessional statementmade to the NCB officials – His case rests on the testimonies ofprosecution witnesses, which are consistent and there are nomaterial contradictions in their depositions to extend any benefitto the accused – Plea by the accused that the prosecution failedto establish a prima facie case against him and thus, the burdenof proving his innocence did not shift back to him cannot beaccepted – As regards the plea of failure to establish foundationalfacts, the prosecution was able to discharge the onus cast on itto prove the foundational facts – Prosecution produced adequateevidence to prove beyond reasonable doubt that the accused hadthe knowledge of the car being used for transporting narcotics, thepresumption u/s. 35 would have to be drawn against him to holdthat he had a culpable mental state – As regards, the plea of theaccused being in the custody of the NCB much before the nakawas laid, there has been no arbitrariness or undue favour shownto the prosecution witnesses from the accused to claim any bias– In view thereof, accused failed to make out a case for acquittal,thus, order of conviction and the sentence imposed by the courtsbelow upheld, however, the co-accused stands acquitted. [Paras12-14, 19, 23, 27]Code of Criminal Procedure, 1973 – s. 100(4) – Personsin charge of closed place to allow search – Testimony ofindependent witness – Plea of unreliability in view of s. 100(4):Held: Sub-section (4) of s. 100 provides that to maintain thepurity of the process, before undertaking a search, a couple ofindependent and respectable inhabitants of the locality where theplace to be searched is located, be joined as witnesses to thesearch – On facts, when Naka was laid by Narcotics Control Bureau,independent witness was associated with investigation – Plea ofunreliability of the testimony of the independent witness, in viewof the provisions u/s. 100 (4) cannot be accepted. [Paras 24, 25] |
