SURINDER KUMAR KHANNA versus INTELLIGENCE OFFICER DIRECTORATE OF REVENUE INTELLIGENCE

[2018] 9 S.C.R.

SURINDER KUMAR KHANNA

INTELLIGENCE OFFICER DIRECTORATEOF REVENUE INTELLIGENCE

(Criminal Appeal No. 949 of 2018)

JULY 31, 2018

[ABHAY MANOHAR SAPRE ANDUDAY UMESH LALIT, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 – s.21r/w. s.29 – Conviction of appellant under, based on confessionalstatements of co-accused – Propriety of – Held: Confessionalstatement of co-accused cannot by itself be taken as substantivepiece of evidence against another co-accused and can at best beDused or utilized in order to lend assurance to the Court – In thepresent case, apart from the statements of co-accused there is nomaterial suggesting involvement of the appellant in the crime inquestion – In the absence of any substantive evidence, it would beinappropriate to base the conviction of the appellant purely on thestatements of co-accused – Orders of conviction and sentenceEagainst the appellant set aside – Appellant acquitted – EvidenceAct, 1872 – ss.24, 25 and 27 – Terrorist and Disruptive ActivitiesAct, 1987 – s.15.

Allowing the appeal, the Court

HELD: 1.1 Unlike Section 15 of Terrorist and DisruptiveActivities Act, 1987 which specifically makes confession of co-accused admissible against other accused in certain eventualities;there is no such similar or identical provision in the NDPS Actmaking such confession admissible against co-accused.[Para 10] [344-D-E]

1.2 In the present case apart from the statements of co-accused there is no material suggesting involvement of theappellant in the crime in question. On the touchstone of law laiddown by Supreme Court such confessional statement of co-accused cannot by itself be taken as substantive piece of

evidence against another co-accused and can at best be used orutilized in order to lend assurance to the Court. In the absenceof any substantive evidence it would be inappropriate to base theconviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted ofthe charges leveled against him. [Para 14] [347-F-H; 348-A]

Hari Charan Kurmi and Jogia Hajam v. State of Bihar[1964] 6 SCR 623 – followed.

Kashmira Singh v. State of Madhya Pradesh [1952] SCR526 – relied on.

Kanhaiyalal v. Union of India (2008) 4 SCC 668 :[2008] 1 SCR 350 ; Tofan Singh v. State of Tamil Nadu(2013) 16 SCC 31 : [2013] 9 SCR 962 ; Bhuboni Sahuv. The King (1949) 76 Indian Appeal 147 ; State v. Nalini(1999) 5 SCC 253 : [1999] 3 SCR 1 – referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 949 of 2018.

From the Judgment and Order dated 21.12.2016 of the High Courtof Punjab & Haryana at Chandigarh in Crl. Appeal No.D-798-DB/2014.

Jayant Bhushan, Sr. Adv., Pahlad Singh Sharma, Ms. KisalayaShukla, Krishna Kant Shukla, Reeja Varghese, Ketan Pant, TusharBhushan, Advs. for the Appellant.

Maninder Singh, ASG, R. Balasubramanian, Rohit Bhatt,Prabhas Bajaj, Sanjay Kumar Tyagi, B. Krishna Prasad, Advs. for theRespondent.

AThe Judgment of the Court was delivered by

UDAY UMESH LALIT, J. 1 Special Leave to Appeal granted.

2. This appeal challenges the correctness of Judgment and Orderdated 21.12.2016 passed by the High Court of Punjab and Haryana atChandigarh in Criminal Appeal No.798 of 2014 by which the High CourtBaffirmed the conviction of the appellant for the offences punishable underSection 21(c) read with Section 29 of The Narcotic Drugs andPsychotropic Substances Act, 1985 (‘NDPC Act’, for short).

3. According to the Prosecution:-

Ca. On specific information that narcotic drugs were going to betransported from Jammu side to Chandigarh via Hoshiarpur in awhite colour Indica car bearing registration no.PB-02AJ-7288, theofficers of Directorate of Revenue Intelligence (for short ‘DRI’)laid picket at toll barrier at Hoshiarpur-Garhshankar road. At 10:35hours, they intercepted an Indica car of white colour which wasDcoming from Hoshiarpur side bearing registration No.PB-02AJ-7288. The car was being driven by one Raj Kumar @ Raju whereasone Surinder Pal Singh was sitting next to him. To ensure safesearch of the car and personal search of occupants, the car wastaken to the office of Superintendent, Central Excise Range, ModelETown, Hoshiarpur. The officers of DRI served notice under Section50 of the NDPS Act upon said Raj Kumar @ Raju and SurinderPal Singh.

b. As desired by said suspects, their personal searches and that ofthe car were conducted in the presence of independent witnessesand Shri SJS Chugh, Senior Intelligence Officer. Personal searchesof the suspects did not result in recovery of any incriminatingmaterial. However, when the car was searched, four packetswrapped with yellowish adhesive tapes were found concealed inthe door of dickey of the car. The gross weight of those four packetscame to 4.300 kg.

c. Each of those packets was containing white colour granules/powder which gave very pungent smell. The pinch of each packetwas tested, which showed the presence of heroin. The recoveredheroin weighing 3.990 kgs was valued at Rs.19,95,000/-. Thosefour packets were taken into possession. Two representative

samples of 5 gms each were taken out from each of the packets asper rules. Indica car was also seized by the officers of DRI.Statements of both the suspects were recorded. From theirstatements, it transpired that four packets of heroin had been takenfrom one Mr. Goldy r/o Vijaypur, Jammu and those packets wereto be delivered to person of African origin near PGI Chandigarh.

d. Initially complaint under Sections 21, 22, 23, 28, 29 and 60 ofthe NDPS Act was lodged against said Raj Kumar @ Raju andSurinder Pal Singh. During investigation, the involvement of thepresent appellant in the drug racket was said to have been madeout. After the appellant was arrested, supplementary complaintwas presented against him and the matter was taken up with themain complaint. After hearing arguments, charges were framedagainst said Raj Kumar @ Raju and Surinder Pal Singh and theappellant for the offences under Sections 21, 29 and 60 of the NDPSAct.

4. The prosecution, in support of its case examined four witnesses.After hearing submissions, the trial court convicted and sentenced allthree accused. The appellant was convicted under Section 21(c) readwith Section 29 of the NDPS Act and was sentenced to undergo rigorousimprisonment for 12 years and to pay fine of Rs.1 lakh, in defaultwhereof to undergo further rigorous imprisonment for three years. Similarorders for conviction and sentence were recorded against other twoaccused namely Raj Kumar @ Raju and Surinder Pal Singh. All threeconvicted accused preferred appeals; namely Criminal Appeal No.D-955-DB-2013 was filed by Raj Kumar @ Raju and Surinder Pal Singhwhile Criminal Appeal No.D-798-DB-2014 was preferred by theappellant. Both these appeals were heard together by the High Court.5. As regards the appellant, it was observed by the High Courtthat he was specifically named by co-accused Raj Kumar @ Raju andSurinder Pal Singh in their statements. Apart from such statementsnothing was produced on record to indicate the involvement of theappellant. The High Court however found that the case against theappellant was made out. It was observed:

“Offence of abetment under Section 29 of NDPS Act stoodestablished against accused Surinder Kumar Khanna, showingthat he was involved in drug trafficking. He was specifically

Anamed by accused Raj Kumar @ Raju and Surinder Pal Singh intheir statements. Such statements of accused Raj Kumar @ Rajuand Surinder Pal Singh recorded under Section 67 of the NDPSAct are admissible in evidence and are not hit by Section 25 ofthe Evidence Act because the officers of DRI, who hadapprehended Raj Kumar @ Raju and Surinder Pal Singh, travelingBin an Indica car and effecting recovery from them do not comewithin the definition of police officers.”.

The High Court thus affirmed the order of conviction as recordedagainst the appellant but reduced the sentence to rigorous imprisonmentfor period of 10 years and to pay fine of Rs.1 lakh, in default whereofCto undergo further rigorous imprisonment for 1½ years. Similar ordersof sentence were passed in respect of other co-accused namely RajKumar @ Raju and Surinder Pal Singh.

6. In this appeal challenging the correctness of the conviction andsentence rendered as against the appellant, it was submitted by Mr.DJayant Bhushan, learned Senior Advocate that apart from the so calledstatements of co-accused Raj Kumar @ Raju and Surinder Pal Singhthere was nothing against the appellant and that he was neither arrestedat the site nor was the contraband material in any way associated withhim. Mr. Maninder Singh, learned Additional Solicitor General appearingfor the respondent however supported the judgment of conviction andEsentence rendered against the appellant. He placed on record call datareports showing that around the time when the co-accused was arrested,the appellant was in touch with person named Chaudhary from Dubai.The learned Additional Solicitor General however fairly accepted thatapart from the statements of the co-accused there was nothing to linkFthe appellant with said convicted accused. The call data reports also didnot indicate that around the time when co-accused were apprehended,the appellant was in touch with either of them.

7. For the present purposes, we will proceed on the footing thatthe statements of co-accused were recorded under and in terms of Section67 of the NDPS Act. As regards such statements, bench of two JudgesGof this Court after referring to and relying upon the earlier Judgments,observed in Kanhaiyalal v. Union of India[1], as under:

“45. Considering the provisions of Section 67 of the NDPS Actand the views expressed by this Court in Raj Kumar Karwal

1 (2008) 4 SCC 668H

case[2] with which we agree, that an officer vested with the powersof an officer in charge of police station under Section 53 of theabove Act is not “police officer” within the meaning of Section25 of the Evidence Act, it is clear that statement made underSection 67 of the NDPS Act is not the same as statement madeunder Section 161 of the Code, unless made under threat orcoercion. It is this vital difference, which allows statement madeunder Section 67 of the NDPS Act to be used as confessionagainst the person making it and excludes it from the operation ofSections 24 to 27 of the Evidence Act.”

8. Later, another bench of two Judges of this Court in Tofan Singhv. State of Tamil Nadu[3] was of the view that the matter requiredreconsideration and therefore, directed that the matter be placed beforea larger bench. It was observed in Tofan Singh (supra) as under:

“40. In our view the aforesaid discussion necessitates re-lookinto the ratio of Kanhaiyalal case. It is more so when this Courthas already doubted the dicta in Kanhaiyalal in Nirmal SinghPehlwan[4] wherein after noticing both Kanhaiyalal as well asNoor Aga[5], this Court observed thus: (Nirmal Singh Pehlwancase, SCC p. 302, para 15)

“15. We also see that the Division Bench in Kanhaiyalal casehad not examined the principles and the concepts underlyingSection 25 of the Evidence Act, 1872 vis-à-vis Section 108 ofthe Customs Act and the powers of Customs Officer whocould investigate and bring for trial an accused in narcoticmatter. The said case relied exclusively on the judgment inRaj Kumar case. The latest judgment in point of time is NoorAga case which has dealt very elaborately with this matter.We thus feel it would be proper for us to follow the ratio of thejudgment in Noor Aga case particularly as the provisions ofSection 50 of the Act which are mandatory have also not beencomplied with.”

41. For the aforesaid reasons, we are of the view that the matterneeds to be referred to larger Bench for reconsideration of theissue as to whether the officer investigating the matter under theNDPS Act would qualify as police officer or not.

2 (1990) 2 SCC 409

3 (2013) 16 SCC 31

4 (2011) 12 SCC 298

5 (2008) 16 SCC 417

DEF

A42. In this context, the other related issue viz. whether the statementrecorded by the investigating officer under Section 67 of the Actcan be treated as confessional statement or not, even if the officeris not treated as police officer also needs to be referred to thelarger Bench, inasmuch as it is intermixed with facet of the 1stissue as to whether such statement is to be treated as statementBunder Section 161 of the Code or it partakes the character ofstatement under Section 164 of the Code.”

9. Thus the issue whether statement recorded under Section 67of the NDPS Act can be construed as confessional statement even ifthe officer who recorded such statement was not to be treated as aCpolice officer, has now been referred to larger Bench.

10. Even if we are to proceed on the premise that such statementunder Section 67 of the NDPS Act may amount to confession, in ourview, certain additional features must be established before such aconfessional statement could be relied upon against co-accused. It isDnoteworthy that unlike Section 15 of Terrorist and Disruptive ActivitiesAct, 1987[6] which specifically makes confession of co-accusedadmissible against other accused in certain eventualities; there is no suchsimilar or identical provision in the NDPS Act making such confessionadmissible against co-accused. The matter therefore has to be seen inEthe light of the law laid down by this Court as regards general applicationof confession of co-accused as against other accused.

11. In Kashmira Singh v. State of Madhya Pradesh[7], this Courtrelied upon the decision of the Privy Council in Bhuboni Sahu v. TheKing[8] and laid down as under:

“Gurubachan’s confession has played an important part inimplicating the appellant, and the question at once arises, how farand in what way the confession of an accused person can beused against co-accused? It is evident that it is not evidence inthe ordinary sense of the term because, as the Privy Council sayGin Bhuboni Sahu v. The King “It does not indeed come withinthe definition of” ‘evidence’ contained in section 3 of the EvidenceAct., It is not required to be given on oath, nor in the presence of

6 Similarly: Section 18 of Maharashtra Control of Organised Crime Act, 1999

7 (1952) SCR 526

8 (1949) 76 Indian Appeal 147 at 155

the accused, and it cannot be tested by cross-examination.” TheirLordships also point out that it is “obviously evidence of veryweak type......... It is much weaker type of evidence than theevidence of an approver, which is not subject to any of thoseinfirmities.”

They stated in addition that such confession cannot be madetile foundation of conviction and can only be used in “support ofother evidence.” In view of these remarks it would be pointless tocover the same ground, but we feel it is necessary to expound thisfurther as misapprehension still exists. The question is, in whatway can it be used in support of other evidence? Can it be used tofill in missing gaps? Can it be used to corroborate an accomplice

or, as in the present case, witness who, though not anaccomplice, is placed in the same category regarding credibilitybecause the judge refuses to believe him except in so far as he iscorroborated ?

In our opinion, the matter was put succinctly by Sir ‘LawrenceJenkins in Emperor v. Lalit Mohan Chuckerbutty[9] where hesaid that such confession can only be used to “lend assurance toother evidence against co-accused “or, to put it in another way,as Reilly J. did in In re Periyaswami Moopan[10]

“the provision goes no further than this—where there isevidence against the co-accused sufficient, if believed, tosupport his conviction, then the kind of confession de- scribedin section 30 may be thrown into the scale as an additionalreason for believing that evidence.”

Translating these observations into concrete terms they cometo this. The proper way to approach case of this kind is, first, tomarshal the evidence against the accused excluding theconfession altogether from consideration and see whether, if it isbelieved, conviction could safely be based on it. If it is capableof belief independently of the confession, then of course it is notnecessary to call the confession in aid. But cases may arise wherethe judge is not prepared to act on the other evidence as it standseven though, if believed, it would be sufficient to sustain

9 [1911] I.L.R. 38 CAl. 559 at 588

10 [1931] I.L.R. 54 Mad. 75 at 77.

conviction. In such an event the judge may call in aid theconfession and use it to lend assurance to the other evidence andthus fortify himself in believing what without the aid of theconfession he would not be prepared to accept.”

12. The law laid down in Kashmira Singh (supra) was approvedBby Constitution Bench of this Court in Hari Charan Kurmi and JogiaHajam v. State of Bihar[11] wherein it was observed:

“As we have already indicated, this question has beenconsidered on several occasions by judicial decisions and it hasbeen consistently held that confession cannot be treated asevidence which is substantive evidence against co-accusedperson. In dealing with criminal case where the prosecutionrelies upon the confession of one accused person against anotheraccused person, the proper approach to adopt is to consider theother evidence against such an accused person, and if the saidevidence appears to be satisfactory and the court is inclined tohold that the said evidence may sustain the charge framed againstthe said accused person, the court turns to the confession with aview to assure itself that the conclusion which it is inclined todraw from the other evidence is right. As was observed by SirLawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty aconfession can only be used to “lend assurance to other evidenceagainst co-accused”. In re Periyaswami Moopan Reilly. J.,observed that the provision of Section 30 goes not further thanthis: “where there is evidence against the co-accused sufficient,if believed, to support his conviction, then the kind of confessiondescribed in Section 30 may be thrown into the scale as anadditional reason for believing that evidence”. In Bhuboni Sahuv. King the Privy Council has expressed the same view. Sir JohnBeaumont who spoke for the Board, observed that “a confessionof co-accused is obviously evidence of very weak type. Itdoes not indeed come within the definition of “evidence” containedin Section 3 of the Evidence Act. It is not required to be given onoath, nor in the presence of the accused, and it cannot be testedby cross-examination. It is much weaker type of evidence thanthe evidence of an approver, which is not subject to any of thoseinfirmities. Section 30, however, provides that the court may take

the confession into consideration and thereby, no doubt, makes itevidence on which the court may act; but the section does not saythat the confession is to amount to proof. Clearly there must beother evidence. The confession is only one element in theconsideration of all the facts proved the case; it can be put intothe scale and weighed with the other evidence”. It would be noticedthat as result of the provisions contained in Section 30, theconfession has no doubt to be regarded as amounting to evidencein general way, because whatever is considered by the court isevidence; circumstances which are considered by the court aswell as probabilities do amount to evidence in that generic sense.Thus, though confession may be regarded as evidence in thatgeneric sense because of the provisions of Section 30, the factremains that it is not evidence as defined by Section 3 of the Act.The result, therefore, is that in dealing with case against anaccused person, the court cannot start with the confession of aco-accused person; it must begin with other evidence adduced bythe prosecution and after it has formed its opinion with regard tothe quality and effect of the said evidence, then it is permissible toturn to the confession in order to receive assurance to theconclusion of guilt which the judicial mind is about to reach on thesaid other evidence. That, briefly stated, is the effect of theprovisions contained in Section 30. The same view has beenexpressed by this Court in Kashmira Singh v. State of MadhyaPradesh where the decision of the Privy Council in Bhuboni Sahucase has been cited with approval.”13. The law so laid down has always been followed by this Courtexcept in cases where there is specific provision in law making suchconfession of co-accused admissible against another accused.[.12]

14. In the present case it is accepted that apart from the aforesaidstatements of co-accused there is no material suggesting involvement ofthe appellant in the crime in question. We are thus left with only onepiece of material that is the confessional statements of the co-accusedas stated above. On the touchstone of law laid down by this Court sucha confessional statement of co-accused cannot by itself be taken as asubstantive piece of evidence against another co-accused and can atbest be used or utilized in order to lend assurance to the Court. In the

12 For example: State vs. Nalini, (1999) 5 SCC 253, paras 424 and 704

ABCDE

Aabsence of any substantive evidence it would be inappropriate to basethe conviction of the appellant purely on the statements of co-accused.The appellant is therefore entitled to be acquitted of the charges leveledagainst him. We, therefore, accept this appeal, set aside the orders ofconviction and sentence and acquit the appellant. The appellant shall bereleased forthwith unless his custody is required in connection with anyBother offence.

Divya Pandey

Appeal allowed.