Sandeep Mehta JUDGMENT
Sandeep Mehta, J.
1. Heard learned counsel for the parties. Perused the impugned judgment as well as the record.
2. The instant appeal has been preferred by the accused appellant Shanti Lal being aggrieved of the judgment dated 29.10.2013 passed by the learned Special Judge, NDPS Act Cases, Jodhpur in Sessions Case No. 115/2010 arising out of FIR No. 4/97 whereby, the appellant was convicted for the offence under Section 8/18 of the NDPS Act and was sentenced to 15 years' RI & a fine of Rs. 1,50,000/-; in default of payment of fine to further undergo 1 1/2 year's RI.
3. Succinctly stated facts relevant and essential for disposal of this appeal are noted herein below.
4. The Preventive Force of CBN, Kota led by Shri M.G. Lele, Superintendent was allegedly looking out for suspected consignments of illicit narcotic drugs from the Pali Jojawar road on 12.4.1997. In the afternoon at about 1:00 PM, while the team was proceeding from Village Auwa to Jojawar, a motorcycle on which two persons were sitting appeared to be moving in a suspicious manner and was flagged down to stop. The motorcycle driver cut his pace but on seeing uniforms of the preventive force, he sped up the motorcycle and tried to escape. The preventive team gave pursuit upon which the accused took the motorcycle into a kutcha field, abandoned the motorcycle and ran away in different directions and managed to escape in the jungle. Registration number of the motorcycle was found to be RJ09-1M-6027. A green coloured bag was tied on the motorcycle which, on opening was found containing 3 ragzine bags stuffed with opium like substance. Gross weight of the suspected contraband came out to be 43.400 kgs. Two samples (total six in number) were taken out from each ragzine bag and were sealed for chemical examination. The remnant contraband was repacked in the original packaging and was sealed in a white coloured cloth. During investigation, the District Transport Officer, Chittorgarh verified that the motorcycle was registered in the appellant's name. Numerous attempts were made to search the appellant at his residence but he could not be traced out. The samples collected from the recovered contraband were sent to the Government Alkaloid Works Neemuch from where a positive report about presence of chief constituents of opium was received. On 23.12.2009, the CBN office Kota received a telephonic information from P.S. Kotwali, Pali that a person named Shanti Lal s/o Lehru Jat r/o Village Lakhon Ka Kheda, Tehsil Kapasan (the appellant herein) had been detained in execution of a warrant issued by Special Court, N.D.P.S. Act Cases, Jodhpur in Case No. 60/2002. Thereupon, investigation of the instant case was handed over to Mr. P.K. Sharma, Inspector, CBN posted under the District Opium Officer, Chittorgarh. He submitted an application before Special Judge, NDPS Act Cases, Jodhpur for seeking departmental custody of Shantilal through the learned Special Public Prosecutor on 24.12.2009. The Court accepted the said application on the very same day and remanded the accused in departmental custody of Shri P.K. Verma. After procuring custody, Shri Verma recorded statement of Shantilal under Section 67 of the NDPS Act wherein, he admitted that the opium seized in the case at hand was owned by him and that on the date of seizure he was personally going on his motorcycle to supply the same to one Bhabhoota Ram s/o Chatra. Thereafter, the appellant Shantilal was formally arrested in the present case and a complaint was filed against him in the Court of Special Judge, NDPS Act Cases, Jodhpur. The trial Court framed charge against the appellant in the following terms :-
5. The appellant pleaded not guilty and claimed trial. The prosecution examined as many as 10 witnesses in support of its case. Upon being questioned under Section 313 Cr.P.C., the accused denied the prosecution allegations and claimed that he was innocent and had been falsely implicated in the case. The offending motorcycle was not in his possession on the day of seizure as he had sold the same to one Mangilal on 19.11.1996. He denied having given any statement under Section 67 of the NDPS Act to Shri P.K. Verma Inspector and claimed that his signatures were procured on blank papers under threat. Three witnesses were examined in defence. Upon conclusion of trial, the learned trial Judge proceeded to hold that the motorcycle in question was under the dominion of the appellant and the same had not been sold to Mangilal. The appellant's statement Ex. P-21 recorded by Inspector CBN Shri Pradeep Kumar under Section 67 of the NDPS Act was held to be reliable and basing his conclusions thereupon, the learned trial Judge proceeded to convict and sentence the appellant as above. Being aggrieved by his conviction as recorded by the impugned judgment dated 29.10.2013, the appellant Shanti Lal has approached this Court by way of the instant appeal.,
6. Shri Mahesh Bora learned senior counsel representing the appellant assisted by Shri Nishant Bora vehemently urged that the conclusions drawn by the learned trial Court in the impugned judgment are per se baseless and were arrived at without just and proper appreciation of evidence available on record. He urged that the learned trial Court has drawn much water from the circumstance that the offending motorcycle stood registered in the appellant's name. He submitted that during the course of investigation, the appellant conveyed to the officers of CBN that he had sold the motorcycle to one Mangilal. This contention of the appellant found favour with the authorities and that is why, charge-sheet was not filed against the appellant for the offence under Section 8/25 of the NDPS Act. He urged that if at all the prosecution was desirous of proving the appellant's guilt on basis of his ownership/dominion over the offending motorcycle, then he should have been charged for the offence under Section 8/25 of the NDPS Act. The trial Court consciously didn't frame charge against the appellant for the said offence. He further urged that even if it is assumed that the motorcycle stood registered in the appellant's name on the date of seizure then too the prosecution had to lead positive evidence so as to establish that he himself used or consciously and knowingly allowed the motorcycle to be used for transportation of opium. As per Shri Bora, no cogent admissible evidence was led by the prosecution to prove that the appellant knowingly allowed the motorcycle to be used for transporting opium. He further contended that Ex. P/21 statement of the appellant recorded by Shri P.K. Verma Inspector under Section 67 of the N.D.P.S. Act is inadmissible and could not have been used by the trial Court as a substantive piece of evidence because the same was admittedly recorded while the appellant was in custody of the Inspector. To buttress this submission, he drew the Court's attention to the statement of inspector Shri P.K. Verma PW8 who admitted that he filed an application in the trial Court for taking custody of the appellant accused and then gave him a notice Ex. P/20 under Section 67 of NDPS Act at the Central Jail, Jodhpur. Pursuant thereto, the statement of accused Ex. P/21 was recorded under Section 67 of the NDPS Act. Shri Bora urged that once the Inspector took the accused into formal departmental custody, unquestionably the statement Ex. P/21 has to be considered as recorded after the arrest of the accused. He urged that subsequent arrest memo Ex. P/22 under which formal arrest of the appellant was shown is just an eyewash because the accused had already been arrested much earlier. He relied upon the following Supreme Court decisions :-
"(1) Nirmal Singh Pehlwan @ Nima v. Inspector, Customs, Customs House, Punjab reported in MANU/SC/0957/2011 : (2011) 12 SCC 298;
(2) Tofan Singh v. State of Tamil Nadu (Criminal Appeal NO. 152/2013) decided on 8.10.2013; and
(3) Noor Aga. v. State of Punjab and Anr. reported in MANU/SC/2913/2008 : (2008) 16 SCC 417"
and urged that conviction of the appellant as recorded by the trial Court solely on the basis of his inadmissible confessional statement extracted by the Inspector Shri P.K. Verma after arrest and under threat and duress is unsustainable. He thus, implored the Court to accept the appeal while setting aside the impugned judgment.
7. Per contra, Shri N.K. Rai, learned Special P.P. vehemently opposed the submissions advanced by the appellant's counsel. He placed reliance upon the following decisions :-
"(1) R.N. Kaker. v. Shabir Fidahusein and another reported in MANU/MH/0051/1989 : 1990 Cri.L.J. 144;
(2) Ram Singh v. Central Bureau of Narcotics reported in MANU/SC/0629/2011 : AIR 2011 SC 2490; and
(3) Paramjeet Singh v. Central Narcotics Bureau reported in 2014(3) Cr.L.R. (Raj. 1254"
and urged that the Inspector Shri P.K. Verma had no animus against the appellant. Simply a formal permission of the Court was sought to make enquiry from the appellant who was in judicial custody in another case and was lodged at Central Jail, Jodhpur. By following bonafide legal procedure, notice Ex. P/20 was issued to the appellant under Section 67 of the Act at the Central Jail. The appellant accepted the notice and agreed to be interrogated by Shri P.K. Verma who recorded the appellant's voluntary statement Ex. P/21 under Section 67 of the Act wherein, he admitted that he himself was transporting the consignment of opium recovered in the case at hand on 12.4.1997. He also admitted to be the owner of the offending motorcycle. He urged that statement Ex. P/21 is admissible and was rightly read in evidence against the appellant by the trial Court. He thus urged that the impugned judgment does not warrant any interference whatsoever and craved dismissal of the appeal.
8. I have given by thoughtful consideration to the arguments advanced at the Bar and have gone through the impugned judgment as well as record.
9. It is virtually an admitted case from the record that the members of the preventive force and the panchas could not identify the riders of the motorcycle on the fateful day. Thus, only two avenues were available to the prosecution to bring home the guilt of the accused. The first would be by resorting to Section 8/25 of the NDPS Act as per which, the owner or the person in control of a vehicle etc. can be convicted even if he is not present with the same. However, neither complaint was filed against the appellant for the said offence nor did the trial Court frame charge against him in that manner. Thus, by no stretch of imagination can the prosecution strive for the appellant's conviction on basis of the inference/presumption available under Sections 25 & 35 of the NDPS Act. The prosecution has come out with a clear case that the appellant was himself driving the motorcycle on the fateful day. For proving this fact, the only material piece of evidence available with the prosecution is the appellant's confessional statement Ex. P/21. Admittedly, the prosecution did not make any endeavor to prove by any other evidence that the appellant himself used or consciously and knowingly allowed his motorcycle to be used for transportation of the opium. Thus, the conclusion drawn by the trial Court in the impugned judgment that the appellant could be held guilty of the charge because he was the registered owner of the offending vehicle is without any legal foundation.
10. The appellant was roped into the case on the basis of information received during investigation that he owned the offending motorcycle. To establish the guilt of the accused, the prosecution was required to prove by cogent evidence that the appellant was present with the motorcycle on the date of seizure. Unquestionably other than the appellant's confessional statement Ex. P/21 recorded under Section 67 of the NDPS Act, the prosecution did not lead any evidence to prove this fact. Thus, the moot question which remains needs to be answered is as to whether, the trial Court was justified in admitting the confessional statement (Ex. P/21) as a material piece of evidence against the appellant and convicting him for the offence under Section 8/18 of the NDPS Act on the basis thereof.
11. It is an admitted position as evinced from record that the appellant was arrested in connection with Sessions Case No. 60/2002 registered at the behest of NCB, Jodhpur and the information thereof was received at the CBN, Kota from the P.S. Kotwali, Pali. The special P.P. representing the CNB filed a remand application in the trial Court on 24.12.2009 for seeking the appellant's custody in the present case. The language of the application is material for deciding the issue and is reproduced herein below for the sake of ready reference :-
12. The remand application clearly recites that Shanti Lal being an accused in case No. 4/97 (case at hand) was wanted by the officials of CBN in connection with recovery of 43.400 Kgs. opium. He absconded leaving behind his motorcycle and thus, his custody be provided for conducting investigation. The application was also signed by the Investigation Officer Shri P.K. Verma, Inspector CBN alongside the public prosecutor. Apparently, only an accused can be remanded to custody be it judicial or departmental (for departments like NCB/CBN/Central Excise, Customs, DRI etc.). The trial Court handed over custodial remand of the appellant to Shri P.K. Verma Inspector, CBN on the very same day i.e. on 24.12.2009 itself and since then, the accused was in custody of CNB in the present case. This fact is further fortified from the remand application dated 4.1.2010 submitted by Shri P.K. Verma Inspector wherein it is clearly mentioned that the accused Shanti Lal was in custody of the officer from 24.12.2009 on which date, the trial Court granted his remand and that he had been formally arrested in the present case on 4.1.2010. In view of the facts noticed above, this Court has no hesitation in holding that custodial remand of the accused had been handed over to Inspector Shri P.K. Verma on 24.12.2009 itself. Ex. P/23 the certificate issued by the Jailor, Central Jail, Jodhpur reflects that the accused was received in the jail on 4.1.2010 through a judicial warrant after completion of his PC remand period. Thus, apparently any proceeding of interrogation including recording of statement of the accused which was undertaken between 24.12.2009 to 4.1.2010 would be hit by Section 24 of the Evidence Act and Article 20(3) of the Constitution of India because no person accused of an offence can be made to give evidence against himself. The endeavor of Inspector Shri P.K. Verma in preparing a formal arrest memo of the accused on 4.1.2010 was totally an eyewash because having taken custody remand of the accused way back on 24.12.2009, there was no occasion for the I.O. to defer preparing his arrest memo for almost 15 days.
13. Law is well settled that the statement of a person recorded by the officers of NCB or CBN after arrest of such person is inadmissible in evidence as the same would be hit by the principles of the Evidence Act as well as the mandate of Article 20(3) of the Constitution of India which prohibit admitting a confession made by an accused in custody except a judicial confession. Thus, I have no hesitation in holding that the statement Ex. P/21 on the basis whereof, the appellant was convicted in this case is inadmissible in evidence and the trial Court committed a grave legal error in relying thereupon. No other evidence was led by the prosecution to bring home the guilt of the accused.
14. Consequently, the instant appeal deserves to be and is hereby allowed. The impugned judgment dated 29.10.2013 passed by the learned Special Judge, NDPS Act Cases, Jodhpur in Sessions Case No. 115/2010 is hereby quashed and set aside. The appellant is acquitted of the charge under Section 8/18 of the NDPS Act. He is in custody. He shall be released forthwith, if not wanted in any other case.
15. Record be returned forthwith.
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