BALWINDER SINGH (BINDA) versus THE NARCOTICS CONTROL BUREAU

CASE DETAILS

BALWINDER SINGH (BINDA)

THE NARCOTICS CONTROL BUREAU

(Criminal Appeal No. 1136 of 2014)

SEPTEMBER 22, 2023

[B.R. GAVAI, HIMA KOHLI AND PRASHANT KUMAR MISHRA, JJ.]

HEADNOTES

Issue for consideration: Matter pertains to admissibility in evidence of the confessional statement recorded by the Narcotics Control Bureau officers u/s. 67 of Narcotic Drugs and Psychotropic Substances Act, 1985; and proving of possession of contraband by the prosecution beyond reasonable doubt.

Narcotic Drugs and Psychotropic Substances Act, 1985 – s. 67 – Confession statement made by an accused u/s. 67 before an offi cer of Narcotics Control Bureau – Admissibility in evidence:

Held: Statement made by an accused and recorded u/s. 67 cannot be used as confessional statement in the trial of an off ence under the NDPS Act – Any confessional statement made by an accused to an offi cer invested with the powers u/s. 53 of the NDPS Act, is barred for the reason that such offi cers are “police offi cers” within the 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 – “Proof beyond reasonable doubt vis-a-vis “preponderance of probability”:

Held: Initial burden is cast on the prosecution to establish the essential factors on which its case is premised – After the prosecution discharges the said burden, the onus shifts to the accused to prove his innocence – However, the standard of proof required for the accused to prove his innocence, is not

as high as expected of the prosecution – For attracting the provisions of s. 54, it is essential for the prosecution to establish the element of possession of contraband by the accused for the burden to shift to the accused to prove his innocence – This aspect of possession of the contraband has to be proved by the prosecution beyond reasonable doubt. [Paras 15 and 16]

Narcotic Drugs and Psychotropic Substances Act, 1985 – ss. 67 and 54 – Two persons convicted for possession of commercial quantity of heroin – Out of the two, only accused was apprehended by Narcotics Control Bureau-NCB from the spot where Naka laid and co-accused was arrested later – Co-accused being repeated off ender sentenced to death u/s. 21(c) rw s. 31A(1a) which was modifi ed to 14 years of rigorous imprisonment – Accused sentenced u/s. 21(c) to rigorous imprisonment for twelve years with fi ne, by the courts below – Sustainability of:Held: Confessional statement of the accused recorded by the NCB offi cers u/s. 67, who had attributed role to co-accused and subsequently statement of co-accused was recorded u/s. 67 are rejected as it cannot be used as confessional statement having been recorded by the NCB offi cials who are to be treated as “police offi cers” u/s. 25 of the Evidence Act – Furthermore, no other 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 statement made to the NCB offi cials – His case rests on the testimonies of prosecution witnesses, which are consistent and there are no material contradictions in their depositions to extend any benefi t to the accused – Plea by the accused that the prosecution failed to establish prima facie case against him and thus, the burden of proving his innocence did not shift back to him cannot be accepted – As regards the plea of failure to establish foundational facts,the prosecution was able to discharge the onus cast on it to prove the foundational facts – Prosecution produced adequate evidence to prove beyond reasonable doubt that the accused had the knowledge of the car being used for transporting narcotics, the presumption u/s. 35 would have to be drawn against him to hold that he had culpable mental state – As regards, the plea of the accused being in the custody of the NCB much before the naka was laid, there has been no arbitrariness or undue favour shown to the

prosecution witnesses from the accused to claim any bias – In view thereof, accused failed to make out case for acquittal, thus, order of conviction and the sentence imposed by the courts below upheld, however, the co-accused stands acquitted. [Paras 12-14, 19, 23, 27]

Code of Criminal Procedure, 1973 – s. 100(4) – Persons in charge of closed place to allow search – Testimony of independent witness – Plea of unreliability in view of s. 100(4):

Held: Sub-section (4) of s. 100 provides that to maintain the purity of the process, before undertaking search, couple of independent and respectable inhabitants of the locality where the place to be searched is located, be joined as witnesses to the search – On facts, when Naka was laid by Narcotics Control Bureau, independent witness was associated with investigation – Plea of unreliability of the testimony of the independent witness, in view of the provisions u/s. 100 (4) cannot be accepted. [Paras 24, 25]

LIST OF CITATIONS AND OTHER REFERENCES

Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1: [2020] 12 SCR 583 – relied on.

Kanhaiyalal vs. Union of India 2008 (4) SCC 668: [2008] 1 SCR 350; Ram Singh vs. Central Bureau of Narcotics (2011) 11 SCC 347: [2011] 5 SCR 967; Raj Kumar Karwal vs. Union of India (1990) 2 SCC 409: [1990] 2 SCR 63; Ritesh Chakarvarti v. State of M.P. (2006) 12 SCC 321: [2006] 6 Suppl. SCR 772 ; Noor Aga v. State of Punjab and Another (2008) 16 SCC 417: [2008] 10 SCR 379; Bhola Singh v. State of Punjab (2011) 11 SCC 653:[2011] 2 SCR 642; State of Delhi v. Ram Avatar alias Rama (2011) 12 SCC 207: [2011] 7 SCR 1129; Gorak Nath Prasad v. State of Bihar (2018) 2 SCC 305; Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31: [2013] 9 SCR 962; State of Punjab v. Baldev Singh (1999) 6 SCC 172: [1999] 3 SCR 977; Dudh Nath Pandey v. State of Uttar Pradesh (1981) 2 SCC 166: [1981] 2 SCR 771, State of Haryana v. Ram Singh (2002) 2 SCC 426: [2002] 1 SCR 208; Adambhai Sulemanbhai Ajmeri and Others v. State of Gujarat(2014) 7 SCC 716: [2014] 7 SCR 48; Jumi and Others v. State of Haryana(2014) 11 SCC 355: [2014] 3 SCR 673 – referred to.

BALWINDER SINGH (BINDA) v. THE NARCOTICS CONTROL BUREAU

OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1136 of 2014.

From the Judgment and Order dated 08.07.2013 of the High Court of Punjab & Haryana at Chandigarh in CRLA No.365 of 2012.

With

Criminal Appeal No.1933 of 2014

Appearances:

Mayank Dahiya, Kuldeep Singh Kuchaliya, Prativa Prakash Janapriya Nayak, Akshay Nagarajan, Sanjay Jain, Advs. for the Appellant.

Vikramjeet Banerjee, ASG, Ms. Ruchi Gour Narula, Gautam Bhardwaj, Annirudh Sharma Ii, Arvind Kumar Sharma, B. Krishna Prasad, Advs. for the Respondent.

JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT

HIMA KOHLI, J.

1. The present appeals arise from the common judgment dated 08[th]July, 2013 passed by the Division Bench of the High Court of Punjab and Haryana at Chandigarh deciding the Murder Reference[1] prepared by the Judge, Special Court for confi rmation of death sentence, appeal[2] preferred by Balwinder Singh [3] and the appeal[4] fi led by Satnam Singh [5].

1.1 By the impugned judgment, the death sentence imposed upon Balwinder Singh[3 ]was set aside under the Reference, thereby declining the

1 Murder Reference No. 5 of 2012 titled Narcotics Control Bureau, Chandigarh Zonal Unit v. Balwinder Singh @ Binda

2 CRA No. D-365-DB of 2012

3 Appellant in Criminal Appeal No. 1136 of 2014

4 CRA No. D-371-DB of 2012

5 Appellant in Criminal Appeal No. 1933 of 2014

Reference and imposed sentence on him to undergo rigorous imprisonment for 14 years and to pay fi ne of ₹1,50,000/- [Rupees one lakh fi fty thousand only] and in default, to undergo rigorous imprisonment for one year for commission of off ence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985[6]. The appeals preferred by the accused were dismissed except for the modifi cation in the order of sentence. Both the accused are before this Court in these appeals by way of special leave.

I. FACTUAL MATRIX:

(a) THE INCIDENT IN QUESTION

2. The incident in question relates back to 11[th] December, 2005, when as per the version of the prosecution, the Narcotics Control Bureau[7] received secret information that some persons who were indulging in the sale of contraband, were travelling in white coloured Indica car from Amritsar to supply contraband at bus stand at Chandigarh. On 12[th] December, 2005, at 01:00 am, naka was laid by the NCB team at Chandigarh and two independent witnesses [Mukesh Kumar and Sonu[8]] were associated in the investigation. At 03:15 am, the NCB team noticed that car [9] coming from Sector 25 and heading towards Sector 24, Chandigarh, stopped at little distance from the place of naka and two persons wearing turbans alighted from the car and ran away. However, the third person, also wearing turban who had later on disclosed his name as Satnam Singh[5], remained seated in the car.

2.1. Members of the NCB team intercepted the vehicle and searched Satnam Singh[5] in the presence of the independent witnesses. On searching the car, they found two packets wrapped in khaki tape in the cavity of the door panel. On unzipping the seat cover of the rear back seat of the vehicle, two more similar packets wrapped in khaki tape were recovered. The prosecution claims that on inquiry, Satnam Singh[5] disclosed that the packets contained heroin that he had brought from Amritsar with the assistance of Balwinder

6 For short ‘NDPS Act’7 For short ‘NCB’8 PW-1

9 White coloured Indica Car bearing registration number HR-01-J-9639 (Marked as P-1)

Singh[3] and person named Harpreet Singh alias Preet alias Sarpanch for sale in Chandigarh. He further disclosed that Balwinder Singh[3] and Sarpanchran away when the car had stopped few yards before the naka. The NCB offi cers seized all the four packets and after taking out two representative samples, sealed them. The samples of the packets were signed by Satnam Singh[5], the two independent witnesses, Intelligence Offi cer - Balwinder Kumar[10] and O.P. Sharma, Superintendent, NCB[11].

(b) THE INVESTIGATION

2.2. panchnama[12] in respect of the recovery made was prepared at the spot, read over to Satnam Singh[5] who signed it. So did the independent witnesses. Thereafter, Satnam Singh[5] was arrested and his statement[13] was recorded after issuing him notice[14] under Section 67 of the NDPS Act. He was also searched personally. The statements of the independent witnesses [Sonu[15] and Mukesh[16]] were recorded. Satnam Singh[5] was produced before the Illaqa Magistrate with the case property[17] and the documents. The case property was handed over to the Superintendent Incharge of the godown and the parcels of the samples[18] were sent to the Chemical Examiner[19] who forwarded the report[20] later on.

2.3. Till this stage, the co-accused named by Satnam Singh[5], i.e., Balwinder Singh[3] was nowhere in the picture. The prosecution claims that sometime later, the NCB offi cers came across newspaper report stating that Balwinder Singh[3] had been arrested by Amritsar Police in an NDPS case and was lodged in the Central Jail, Amritsar. Based on the said information, Balwinder Singh[3] was arrested and notice[21] was served on him under

10 PW-2

11 PW-5 (wrongly mentioned as PW-10 in the trial Court judgement)

12 Exhibit P-1/E

13 Exhibit PW-1/B

14 Exhibit P-5

15 Exhibit PW-1/D

16 Exhibit P-9

17 Exhibit P-1

18 Exhibit P-12

19 Chemical Examiner Shri. S.K. Mittal, PW-4

20 Exhibit P-11

21 Exhibit P - 6

Section 67 of the NDPS Act. Thereafter, his voluntary statement[22] was recorded and duly signed by him and he was arrested.

2.4 On conclusion of the investigation, the NCB submitted complaint[23]before the Judge, Special Court, Chandigarh stating that Satnam Singh[5] and Balwinder Singh[3] had committed off ences punishable under Sections 8, 21, 27A and 60 of the NDPS Act. Charges were framed against the two accused under Section 21 r/w Sections 8, 27A and 60 of the NDPS Act. On 02[nd] July, 2007, both the accused pleaded not guilty and claimed trial.

(c) PROCEEDINGS BEFORE THE TRIAL COURT

2.5. On its part, the NCB examined fi ve witnesses namely Sonu[8] who was an independent witness and joined the investigation when the naka was laid on 12[th] December, 2005; Constable Balwinder Singh[10] whose deposition related to deposit of the samples[18] of the contraband with the Central Revenue Control Laboratory, Delhi[24]; P.K. Sharma[25], the then Intelligence Offi cer, NCB who had received the secret information based on which the naka was laid and Satnam Singh[5] was arrested; S.K. Mittal[19], the Chemical Examiner who deposed about receiving the sample in the Narcotic Section of the CRCL, New Delhi from the PW- 2[10] and his report[20] dated 24[th] February, 2006 to the eff ect that on testing, the sample was found positive for heroin and contained 73.5% of dialectical Morphine by weight and O.P. Sharma[11], Superintendent, NCB who narrated the sequence of events leading to the laying of the naka, search of the Indica car being driven by the accused Satnam Singh[5] wherefrom the contraband was recovered, preparation of Recovery-cum-Seizure Memo[26] and forwarding of the seized contraband to Delhi for chemical analysis[27], ending with the receipt of the report[20] of the Chemical Examiner[19].

2.6. After the prosecution closed its evidence, both the accused were examined under Section 313 of the Criminal Procedure Code[28]. They

22 Exhibit – P-17

23 Exhibit P-13

24 For short, the CRCL, New Delhi’

25 PW 3

26 Exhibit PW-1/C

27 Exhibit PW-1/A

28 For short ‘Cr.P.C’

denied the charges levelled against them, pleaded not guilty and alleged false implication in the case. In their defence, the accused examined four witnesses, namely, Soravdeep Singh[29]; Naresh Kumar[30]; Parkash Ram[31]and Ravi Kant Pawar[32]. DW-1[29] and DW-2[30] were summoned by Satnam Singh[5] to prove that call for 27 seconds was made by him from his mobile number at 9.45 p.m. on 11[th] December, 2005 to landline number installed in the offi ce of the Zonal Director in Chandigarh, when he was actually in police custody.

2.7. It was argued on behalf of the applicants that PW-1 – Sonu[8]was the real culprit from whom recovery of heroin was made and he had managed to bribe the offi cers of the NCB team due to which they planted the contraband in the car driven by Satnam Singh[5]. It was also contended on behalf of Satnam Singh[5] that one of the two independent witnesses, namely, Mukesh Kumar, was stock witness of NCB and was on its pay rolls as daily wager. The testimonies of DW-3[31 ]and DW-4[32] was referred to, wherein it was deposed that Mukesh Kumar was joined in as witness in another complaint registered by the NCB.

2.8. After discussing the entire evidence, vide judgment dated 10[th]March, 2012, the learned Judge, Special Court, Chandigarh held both the accused guilty and convicted them under Section 21 read with Section 8 of the NDPS Act. Subsequently, on 15[th] March, 2012, after hearing arguments on the quantum of sentence, noting that Balwinder Singh[3] had been previously convicted under Section 21(c) of the NDPS Act for the off ence involving commercial quantity of narcotic drugs and applying the provisions of Section 31A of the NDPS Act, he was sentenced to death under Section 21(c) read with Section 31A(1a) of the NDPS Act.

2.9. Coming to the co-accused Satnam Singh[5], the learned Judge, Special Court, Chandigarh took note of the fact that he was government servant working as Warden in Punjab Jail and was posted at Sangrur at the time of committing the off ence, which added to the gravity of the

29 DW 1

30 DW 2

31 DW 3

32 DW 4

off ence. Therefore, he was sentenced under Section 21(c) of the NDPS Act to undergo rigorous imprisonment for period of twelve years and to pay fi ne of ₹1,50,000/- (Rupees One lakh and fi fty thousand) and in default thereof to further undergo rigorous imprisonment for period of three years.

(d) PROCEEDINGS BEFORE THE HIGH COURT

3. Aggrieved by the aforesaid judgment, both the appellants approached the High Court. Murder Reference under Section 366 Cr.P.C. was also forwarded to the High Court in view of the death sentence awarded by the Special Court, Chandigarh to the appellant – Balwinder Singh[3]. The entire evidence was analysed afresh by the High Court and relying on the

decisions of this Court in Kanhaiyalal vs. Union of India[33], Ram Singh vs. Central Bureau of Narcotics[34] and Raj Kumar Karwal vs. Union of

India[35] wherein, it was held that an order of conviction can be passed solely on the basis of the confession made by the accused under Section 67 of the NDPS Act and that such confession before the offi cer of the NCB was admissible in evidence since the NCB offi cer is not considered as “police offi cer” within the meaning of Section 25 of the Indian Evidence Act, 1872, both the appellants were convicted under the NDPS Act. For arriving at the said conclusion, the High Court took into consideration the statements of Balwinder Singh[3] and Satnam Singh[5] recorded under Section 67 of the Act and held them to be admissible in evidence for being used as confession against them. The deposition of the prosecution witnesses, namely, PW-1[8], PW-2[10] and PW-5[11], who had searched the car of Satnam Singh[5] that had resulted in the recovery of 4 kgs. of heroin, was also relied on by the High Court and it was observed that Satnam Singh[5] was apprehended by the NCB Offi cers in the vehicle in question and there was suffi cient evidence to hold that he was guilty of possession of 4 kgs. of heroin.

3.1. Similarly, in the case of Balwinder Singh[3], the High Court held that his confession[19] recorded under Section 67 of the NDPS Act was admissible in view of the law laid down by this Court in Kanhaiyalal[33] (supra). The Court noted that neither Satnam Singh[5] nor Balwinder Singh[3] had moved

33 2008 (4) SCC 668

34 (2011) 11 SCC 347

35 (1990) 2 SCC 409

any formal application for retracting the confessions made and there was no reason to discard their confessional statements or to reject the testimonies of the prosecution witnesses [PW-1[8], PW-2[10] and PW-5[11]]. Even though Balwinder Singh[3] was not identifi ed by PW-3[25] and PW-5[11], his statement[22]was duly recorded under Section 67 of the NDPS Act and the co-accused, Satnam Singh[5] had also stated in his confessional statement that Balwinder Singh[3] was involved in the crime. Both the confessional statements when read together, were held to be suffi cient to hold that Balwinder Singh[3] was guilty of the off ence committed. Added to this was the fact that Balwinder Singh[3] had already been convicted and sentenced in case under the NDPS Act and his appeal against the said conviction was pending at that time in the High Court. Therefore, he had propensity towards committing such crimes. The High Court opined that merely because Balwinder Singh[3] had escaped from the car just before the point where the naka had been laid and could not be apprehended, would not be ground to acquit him or exonerate him of the charge of conscious possession of heroin.3.2. The High Court went on to reject the defence version sought to be projected by Satnam Singh[5] that Sonu[8] [PW-1] was the real culprit and it was from him that the contraband was recovered but he got away by bribing the NCB team who cleverly planted the contraband in the car driven by Satnam Singh[5]. The plea taken that the other independent witness, Mukesh Kumar though arrayed as prosecution witness and not produced, was stock witness of the NCB, was also found to be meritless. The High Court observed that Mukesh Kumar was not examined during the trial since he had been won over by the appellants. As result of the aforesaid discussion, both, Balwinder Singh[3] and Satnam Singh[5] were found to be in conscious possession of commercial quantity of heroin on the relevant date and the fi ndings returned by the trial Court holding them guilty of the commission of off ences punishable under Section 21(c) read with Section 8 of the NDPS Act, were upheld. The order of sentence imposed on Satnam Singh[5] of rigorous imprisonment for period of 12 years was affi rmed by the High Court. However, the death penalty awarded to the appellant – Balwinder Singh[3] for being repeat off ender under Section 31A of the NDPS Act, was held to be too harsh punishment. Resultantly, the death sentence awarded to Balwinder Singh[3] was set aside and the High Court sentenced him to undergo rigorous imprisonment for period of 14 years along with fi ne of

₹1,50,000/- [Rupees one lakh fi fty thousand only] and in default of payment of fi ne, suff er imprisonment for one year. Dissatisfi ed by the aforesaid decision, the appellants have preferred the present appeals.

II ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE PARTIES

(a) SUBMISSIONS MADE BY COUNSEL FOR BALWINDER SINGH[3]AND SATNAM SINGH [5]

4. Mr. Mayank Dahiya, learned counsel for the appellant – Balwinder Singh[3], argued that his client had been convicted solely on the basis of the purported statement of confession made by the co-accused, Satnam Singh[5]before the NCB offi cials which is no longer admissible in law, in the light of the decision of this Court in the case of Tofan Singh v. State of Tamil Nadu[36]. It was stated that the High Court was swayed by the fact that at that time, Balwinder Singh[3] was facing three other cases for off ences under the NDPS Act but subsequently, he has been acquitted in all the said cases on being extended benefi t of doubt. However, in the instant case, he has already undergone the sentence awarded by the High Court during the pendency of the present appeal.

4.1. Besides similar argument advanced by learned counsel for Balwinder Singh[3] that the statement of confession made by Satnam Singh[5]before the NCB offi cials is not admissible in law and could not be read in evidence against him in view of the recent decision of this Court in Tofan Singh[36] (supra), Mr. Akshay Nagarajan, learned counsel for the said appellant has assailed the impugned judgement primarily on fi ve counts. Firstly, that an off ence committed under the NDPS Act being grave one, all the procedural safeguards provided under the Statute to the accused require strict compliance and strict scrutiny and in the instant case, as the prosecution failed to establish prima facie case, the burden did not shift to the accused. To buttress the said submission, learned counsel has cited Ritesh Chakarvarti v. State of M.P.[37]; Noor Aga v. State of Punjab and

36 (2021) 4 SCC 1

37 (2006) 12 SCC 321

Another[38]; Bhola Singh v. State of Punjab[39]; State of Delhi v. Ram Avatar alias Rama[40]; and Gorak Nath Prasad v. State of Bihar[41] .

4.2 The second plea taken is that the entire story setup by the prosecution is shaky inasmuch as the independent witnesses who were joined in, have murky background and their testimonies ought to be disbelieved. The testimony of Sonu[8] has been questioned as untrustworthy and it is stated that he could not be treated as an independent witness in terms of Section 100(4) of the Cr.P.C. It was contended that the High Court has erred in failing to re-evaluate the credibility of the said witness and satisfy itself as to whether he was in fact an independent witness. Thirdly, it was argued that the other independent witness, Mukesh Kumar was arrayed in the list of witnesses but not examined by the prosecution for the reason that he was stock witness, as would emerge from the deposition of DW-3[31] and DW-4[32]. Next, it was argued that the case property[17], mainly the contraband that was allegedly recovered, was not handled properly which is apparent from the fact that in the panchnama[12] the contraband was described as substance that was white in colour but in his testimony, the Chemical Examiner[19], described the contraband to be of light brown colour with lumps. This discrepancy in the contraband pointed out by the defence goes to the root of the matter.

4.3 Lastly, it was argued on behalf of Satnam Singh[5] that the High Court ought not to have discarded outright the defence version that it was Sonu[8 ][PW-1] who was found to be in possession of the contraband and on his bribing the NCB offi cers, he was let off whereas Satnam Singh[5], who was innocent, was framed. Learned counsel submitted that the deposition of DW-2[30] proved that the landline number on which phone call was made by the NCB offi cers from the mobile phone of Satnam Singh[5] at 09.45 pm on 11[th] December, 2005, was the offi cial number belonging to the Zonal Director, NCB, Chandigarh and the said evidence once brought on record, was suffi cient for the High Court to have discounted the version of the NCB that they had met Satnam Singh[5] for the fi rst time at the naka on 12[th]December, 2005, at 03.00 am. Learned counsel concluded by submitting

38 (2008) 16 SCC 417

39 (2011) 11 SCC 653

40 (2011) 12 SCC 207

41 (2018) 2 SCC 305

that though Satnam Singh[5] has already undergone the sentence imposed on him, he is pressing the appeal for an acquittal on merits because the appellant was Government servant who was dismissed from service on having been convicted which order, if reversed, would entitle him to relief in relation to his service benefi ts.

(b)SUBMISSIONS MADE BY LEARNED COUNSEL FOR THE RESPONDENT, NCB

5. On the other hand, learned counsel for the respondent-NCB has supported the impugned judgement and stated that there was ample evidence brought on record by the NCB for indicting Balwinder Singh[3] and Satnam Singh[5]. He asserted that none of the witnesses produced by the NCB were planted, as alleged; that NCB had successfully established prima faciecase against the appellants whereafter the burden had shifted on them to prove their innocence and that they had miserably failed to discharge the said burden; that the prosecution had amply proved the foundational facts to attract the rigours of the NDPS Act and the actus reus, namely possession of contraband by the appellants was convincingly established for holding them guilty of the off ence for which they were charged. It was thus stated that the impugned judgement does not deserve interference.

III ANALYSIS AND DISCUSSION

(a) SIGNIFICANCE OF TOFAN SINGH’S DECISION

6. We have perused the impugned judgement and the records and given our thoughtful consideration to the arguments advanced by learned counsel for the parties.

7. When the present matter was considered by the High Court in the year 2013, it had accepted the arguments advanced by learned counsel for the respondent-NCB that offi cers of the Department of Revenue Intelligence who are vested with the powers of an offi cer-in-charge of the police station under Section 53 of the Act, are not “police offi cers” within the meaning of Section 25 of the Evidence Act and therefore held that confessional statement of person accused of an off ence under the NDPS Act recorded by such an offi cer in the course of investigation, is admissible against him. The said argument had found favour with the High Court in the light of the

decisions of this Court in Kanhaiyalal[33 ](supra) and Raj Kumar Karwal[35](supra) where it was held that confession made by the accused before an offi cer of the NCB, is admissible in evidence because the said offi cer cannot be treated as “police offi cer” within the meaning of Section 25 of the Evidence Act. It was further held that conviction can be maintained on the sole confession made by an accused under Section 67 of the NDPS Act. similar view taken by this Court in Ram Singh[34] (supra), was cited by the High Court to fortify its decision that the confessions made by the appellants herein before the offi cers of the NCB were admissible in evidence, being of voluntary nature.

8. However, much water has fl own under the bridge since the year 2013. In the year 2020, three-judges Bench of this Court answered Reference Order of Division Bench in Tofan Singh v. State of Tamil Nadu[42] and re-examined the ratio of Kanhaiyalal[33] (supra) and Raj Kumar Karwal[35] (supra) to decide as to whether the offi cer investigating matter under the NDPS Act would qualify as ‘police offi cer’ or not. The other related issue which was examined by the larger Bench in Tofan Singh[36](supra) was whether the statement recorded by the investigating offi cer under Section 67 of the NDPS Act can be treated as confessional statement or not even if the offi cer is not treated as “police offi cer”.

9. After detailed examination of the legal position in the light of the provisions of the NDPS Act, vis-à-vis revenue Statutes like the Customs Act, 1962 and the Central Excise Act, 1944 as also the Cr.P.C and Section 25 of the Evidence Act, the majority decision authored by Justice Nariman, arrived at the following conclusion:

“155. Thus, to arrive at the conclusion that confessional statement made before an offi cer designated under Section 42 or Section 53 can be the basis to convict person under the NDPS Act, without any non obstante clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.

156. The judgment in Kanhaiyalal [Kanhaiyalal v. Union of India, (2008) 4 SCC 668 : (2008) 2 SCC (Cri) 474] then goes on to follow Raj Kumar Karwal [Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409 : 1990 SCC (Cri) 330] in paras 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us.

157. On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] and Nirmal Singh Pehlwan v. Inspector, Customs [Nirmal Singh Pehlwan v. Inspector, Customs, (2011) 12 SCC 298 : (2012) 1 SCC (Cri) 555] are correct in law.

158. We answer the reference by stating:

158.1. That the offi cers who are invested with powers under Section 53 of the NDPS Act are “police offi cers” within the meaning of Section 25 of the Evidence Act, as result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

158.2. That statement recorded under Section 67 of the NDPS Act cannot be used as confessional statement in the trial of an off ence under the NDPS Act.”

[emphasis laid]

10. In view of the aforesaid decision that declares that any confessional statement made by an accused to an offi cer invested with the powers under Section 53 of the NDPS Act, is barred for the reason that such offi cers are “police offi cers” within the meaning of Section 25 of the Evidence Act, statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as confessional statement in the trial of an off ence under the NDPS Act.

(b)EFFECT OF TOFAN SINGH’S VERDICT ON BALWINDER SINGH’S CASE

11. Now that it has been declared in Tofan Singh’s case[36] (supra) that the judgements in the case of Kanhaiyalal[33] (supra) and Raj Kumar Karwal[35](supra) did not state the correct legal position and they stand overruled, the entire case set up by the prosecution against Balwinder Singh[3], collapses like House of cards. It is not in dispute that Balwinder Singh[3] was not apprehended by the NCB offi cials from the spot where the naka was laid and that Satnam Singh[5] alone was apprehended in the Indica car. The version of the prosecution is that after Satnam Singh[5] was arrested, his statement[13]was recorded under Section 67 of the NDPS Act wherein he ascribed specifi role to the co-accused - Balwinder Singh[3] and the Sarpanch. The NCB offi cers claimed that they were on the lookout for both of them since they had managed to run away from the spot. While Sarpanch could not be apprehended, the NCB offi cers learnt from reports in the newspaper that Balwinder had been arrested by the Amritsar Police in an NDPS case and was lodged in the Central Jail, Amritsar. Permission was taken from the concerned Court to take Balwinder Singh[3] into custody in the instant case and he was arrested. notice[21] was served on him under Section 67 of the NDPS Act and his statement[22] was recorded. Treating his statement[22] as confessional statement, Balwinder Singh[3] was arrested.

12. Once the confessional statement[13] of the co-accused, Satnam Singh[5] recorded by the NCB offi cers under Section 67 of the NDPS Act, who had attributed role to Balwinder Singh[3] and the subsequently recorded statement[22] of Balwinder Singh[3] himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Tofan Singh[36] (supra), there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh[3] under the NDPS Act. On ignoring the said confessional statements[13&22] recorded before the offi cers of the NCB in the course of the investigation, the vital link between Balwinder Singh[3] and the off ence for which he has been charged snaps conclusively and his conviction order cannot be sustained.

13. As result of the above discussion, we are of the opinion that Balwinder Singh[3] deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act. Ordered accordingly.

(c)HOW IS SATNAM SINGH’S CASE PLACED ON DIFFERENT FOOTING

14. We next come to the case of the appellant, Satnam Singh[5]. Again, as in the case of Balwinder Singh[3], the statement[13] made by Satnam Singh[5] and recorded under Section 67 of the NDPS Act will have to be discarded outright as it cannot be used as confessional statement having been recorded by the NCB offi cials who, in terms of the verdict in Tofan Singh’s case[3][6] (supra) are to be treated as “police offi cers” under the provisions of Section 25 of the Evidence Act. But unlike the case of Balwinder Singh[3], the conviction of Satnam Singh[5] does not hinge solely on his confessional statement[13] made to the NCB offi cials. His case is on diff erent footing because it also rests on other relevant factors including the testimonies of three prime prosecution witnesses namely, Sonu[8] [PW-1], P.K. Sharma[25 ][PW-3] and O.P. Sharma[11][PW-5]. We propose to discuss below that their testimonies when examined carefully, show that they had remained consistent and unfailing. There appear no material contradictions or deviations in their depositions for this Court to extend any benefi t to the appellant – Satnam Singh[5].

(d) “PROOF BEYOND REASONABLE DOUBT VIS-À-VIS “PREPONDERANCE OF PROBABILITY” : LEGAL POSITION

15. We may fi rst test on the anvil of settled law, the plea taken by learned counsel for the appellant – Satnam Singh[5] that the prosecution had failed to establish prima facie case against the accused and therefore, the burden of proving his innocence did not shift back to him. In the case of Noor Aga[38] (supra), two-Judges Bench of this Court was required to decide several questions, including the constitutional validity of the NDPS Act and the standard and extent of burden of proof on the prosecution vis-à-vis the accused. After an extensive discussion, this Court upheld the constitutional validity of the provisions of Sections 35 and 54 of the NDPS Act[43], but went on to hold that since the provisions of the NDPS Act and

43 35. Presumption of culpable mental state—(1) In any prosecution for an off ence under this Act which requires culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an off ence in that prosecution.

the punishments prescribed therein are stringent, the extent of burden to prove the foundational facts cast on the prosecution, would have to be more onerous. The view taken was that courts would have to undertake heightened scrutiny test and satisfy itself of “proof beyond all reasonable doubt”. Emphasis was laid on the well-settled principle of criminal jurisprudence that more serious the off ence, the stricter would be the degree of proof and higher degree of assurance would be necessary to convict an

accused. [Also refer: State of Punjab v. Baldev Singh[44], Ritesh Chakarvarti v. State of M.P.[45] and Bhola Singh[39] (supra)].

16. Thus, it can be seen that the initial burden is cast on the prosecution to establish the essential factors on which its case is premised. After the prosecution discharges the said burden, the onus shifts to the accused to prove his innocence. However, the standard of proof required for the accused to prove his innocence, is not pegged as high as expected of the prosecution. In the words of Justice Sinha, who speaking for the Bench in Noor Aga[38](supra), had observed that:

“58. ……. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is

Explanation—In this section “culpable mental state” includes intention motive, knowledge of fact and belief in, or reason to believe, fact. (2) For the purpose of this section , fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by preponderance of probability.54. Presumption from possession of illicit articles—In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an off ence under this Act in respect of— (a) any narcotic drug or psychotropic substance or controlled substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;

(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or

(d) any materials which have undergone any process towards the manufacture of narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.44 (1999) 6 SCC 172

45 (2006) 12 SCC 321

“preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.”

The essence of the discussion in the captioned case was that for attracting the provisions of Section 54 of the NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused for the burden to shift to the accused to prove his innocence. This aspect of possession of the contraband has to be proved by the prosecution beyond reasonable doubt.

(e)PLEA OF FAILURE TO ESTABLISH FOUNDATIONAL FACTS

17. The submission made by learned counsel for the appellant – Satnam Singh[5] that the prosecution failed to establish the underlying facts of possession of the contraband by Satnam Singh[5] and therefore, the burden of proof could not have shifted to the accused, is found to be devoid of merits having regard to the evidence placed on record by the prosecution. The prosecution was successful in establishing the fact that it was the appellant – Satnam Singh[5] who was driving the car[9], when he was accosted at the spot where the naka was laid by the NCB Offi cers on the relevant date. photocopy of the registration certifi cate of the car[9] was recovered on search of the appellant – Satnam Singh[5]. He was the owner of the car 9. The car[9] was searched by the NCB Offi cers in the presence of two independent witnesses. The contraband was recovered from the car[9] being driven by the appellant – Satnam Singh[5] in the presence of the independent witnesses and P.K. Sharma, Gazetted Offi ce[25], who was part of the NCB team. Even though one of the two independent witnesses [Mukesh Kumar] had turned hostile and was dropped by the prosecution, the testimony of the other independent witness [Sonu[8]] was consistent and nothing material could be elicited by the accused during his cross-examination.

18. Through the deposition of the Chemical Examiner [S.K. Mittal[22]], the prosecution successfully proved the report[20] submitted by him stating inter alia that on testing the samples[18], the substances drawn from the bags recovered from the car[9] of the appellant – Satnam Singh[5], were heroin. The samples[18] drawn and sealed were found untampered and the testimony of

Constable Balwinder Kumar[10] corroborated the fact that he had carried the samples[18] with him and deposited them with the CRCL, New Delhi on 14[th]December, 2005 with all the seals intact.

19. Given the aforesaid narrative, we are of the opinion that the prosecution was able to discharge the onus cast on it to prove the foundational facts. Thus, the initial burden of proving that the appellant – Satnam Singh[5] had the knowledge that the car[9] owned and being driven by him at the relevant point in time was being used for transporting narcotics, stood discharged. Once it is concluded that the prosecution had produced adequate evidence to prove beyond reasonable doubt that the accused – Satnam Singh[5]had the knowledge, the presumption contemplated under Section 35 of the NDPS Act would have to be drawn against him to hold that he had culpable mental state for indicting him for the off ence for which he had been charged.

20. As has been observed by this Court in the case of Ram Avatar alias Rama[40] (supra), that possession of the contraband is sine qua non to secure conviction under Section 21 of the NDPS Act and that such contraband article should be recovered in accordance with the provisions of Section 50 of the NDPS Act, being statutory safeguard favouring the accused; otherwise the recovery itself shall stand vitiated in law.

21. The argument advanced on behalf of the appellant – Satnam Singh[5]that both the courts below have erred in discarding the defence taken by him to the eff ect that it was Sonu[8] who was the real culprit and was apprehended by the NCB offi cers with the contraband, but he was let off on bribing the NCB offi cers, does not meet the test of preponderance of probability and has rightly been disbelieved by both the courts in the absence of any corroboration through cogent evidence.

(f)PLEA OF THE ACCUSED BEING IN THE CUSTODY OF THE NCB MUCH BEFORE THE NAKA WAS LAID

22. Another plea taken by the appellant – Satnam Singh[5] is that he was in the custody of the NCB offi cers much before the point in time when the naka was laid on 11[th] December, 2005. The deposition of witness produced by him, Soravdeep Singh[19] [DW-1] to substantiate that call was made from his mobile number at 09.54 PM on 11[th] December, 2005 when he had already been detained by the NCB offi cers, to landline number installed

in the Offi ce of the Zonal Director at Chandigarh, was not of any assistance as the mobile phone bills summoned by the appellant were not proved in accordance with law. The trial Court observed that the bill in question[46] was only computer-generated one. The records pertaining to the bill were not produced by the witness summoned and the bill did not bear the signature of any authority even to prove that the mobile phone number asserted by the appellant – Satnam Singh[5] as belonging to him, stood in his name. We see no reason to take diff erent view.

23. Reliance placed by learned counsel on the decisions in Dudh Nath

Pandey v. State of Uttar Pradesh[47], State of Haryana v. Ram Singh[48], Adambhai Sulemanbhai Ajmeri and Others v. State of Gujarat[49] and Jumi and Others v. State of Haryana[50] to urge that defence witnesses are entitled to equal treatment with those produced by the prosecution and diff erent yardsticks cannot be prescribed for prosecution witnesses as compared to defence witnesses is well-settled principle of criminal jurisprudence, but cannot take the case of the appellant – Satnam Singh[5] any further inasmuch as the trial Court has carefully analysed the testimonies of the defence witnesses before drawing an adverse presumption against the accused. The High Court has also taken pains to go through the entire testimonies of the defence witnesses and only thereafter endorsed the view taken by the trial Court. There has been no arbitrariness or undue favour shown to the prosecution witnesses from the appellant-Satnam Singh[5] to claim any bias.

(g)PLEA OF UNRELIABILITY OF THE TESTIMONY OF THE INDEPENDENT WITNESS, SONU

24. As for the contention of learned counsel for the appellant – Satnam Singh[5] that the testimony of Sonu[8] cannot be treated as that of an independent witness in view of the provisions under Section 100 (4) of the Cr.P.C., we are of the view that the said plea does not hold any water. Section 100 (4) of the Cr.P.C. that falls under Chapter VII titled “Process to Compel the Production of Things”, states as follows :

46 Ex.DW-1/A

47 (1981) 2 SCC 166

48 (2002) 2 SCC 426

49 (2014) 7 SCC 71650 (2014) 11 SCC 355

“100. Persons in charge of closed place to allow search –

(4). Before making search under this Chapter, the offi cer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”

25. It can be discerned from bare reading of the aforesaid provision that it is general provision relating to search and applies to closed place, as for example, residence, offi ce, shop, built-up premises etc, where search is required to be conducted by the investigation. It is in this context that sub-section (4) of Section 100 Cr.P.C. provides that to maintain the purity of the process, before undertaking search, couple of independent and respectable inhabitants of the locality where the place to be searched is located, be joined as witnesses to the search.

26. In the case at hand, the naka was laid by the offi cials of the NCB in an open area near the roundabout of Sectors 24/25, Chandigarh. Such was the location that there was no inhabitant in the vicinity and the time of the naka was an unearthly hour of 01.00 a.m. on 12[th] December, 2005. In this background, the two independent witnesses who were driving from Jalandhar towards Chandigarh, were fl agged down by the NCB offi cers and joined in the investigation. Therefore, the shadow of doubt sought to be cast on the testimony of Sonu[8] by claiming that he was the real culprit, is clearly trumped up story that cannot be sustained. The other independent witness, Mukesh Kumar, had turned hostile and the prosecution did not examine him. As consequence, the two defence witnesses, Parkash Ram[31] and Ravi Kant Pawar[32] produced by the appellant – Satnam Singh[5] to demonstrate that Mukesh Kumar was stock witness, would hardly be of any assistance. The other procedural discrepancies sought to be pointed out by learned counsel for the appellant – Satnam Singh[5] and referred to in paras 4.3 and 4.4 above, are not considered so vital in nature as to unsettle or demolish the entire case set up by the prosecution against the appellant – Satnam Singh[5].

(IV)CONCLUSION

27. In view of the aforesaid discussion, we are of the opinion that the appellant – Satnam Singh[5] has failed to make out case for acquittal. Therefore, the order of conviction and the sentence imposed on Satnam Singh[5] is maintained. Criminal Appeal No. 1933 of 2014 is accordingly dismissed and the order of conviction and the sentence imposed on Satnam Singh[5] by trial Court and upheld by the High Court is affi rmed. However, Criminal Appeal No.1136 of 2014 is allowed and the appellant, Balwinder Singh[3] is acquitted.

Headnotes prepared by: Nidhi Jain

Appeals disposed of.