26 May 2020


Judgments

High Court of Rajasthan

Shanti Lal Vs. Union of India

MANU/RH/0999/2017

10.10.2017

Criminal

Statement of a person recorded by officers of NCB or CBN after arrest of such person is inadmissible in evidence

The instant appeal has been preferred by the accused Appellant being aggrieved of the judgment passed by the learned Special Judge, whereby, the Appellant was convicted for the offence under Section 8/18 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (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. 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.

It is 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.

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. It is an admitted position as evinced from record that, the Appellant was arrested in connection with Sessions Case registered at the behest of NCB, Jodhpur and the information thereof was received at the CBN, Kota. The special P.P. representing the CNB filed a remand application in the trial Court for seeking the appellant's custody in the present case.

Law is well settled that the statement of a person recorded by the officers of Narcotics Control Bureau (NCB) or Crime Bureau of Narcotics(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, statement Ex. P/21 on the basis whereof, the Appellant was convicted in present 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. Consequently, the instant appeal is allowed. The impugned judgment passed by the learned Special Judge, is quashed and set aside. The appellant is acquitted of the charge under Section 8/18 of the NDPS Act.

Tags : Conviction Statement Admissibility

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