MOHAMMED FASRIN versus STATE REP. BY THE INTELLIGENCE OFFICER on 4 September 2019

[2019] 12 S.C.R. 465

MOHAMMED FASRIN

v.

STATE REP. BY THE INTELLIGENCE OFFICER

(Criminal Appeal No. 296 of 2014)

SEPTEMBER 04, 2019

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 –s.8(c) r/w ss.29, 21, 23(c), 27(A) and s.67 – Intelligence Officer,Narcotic Department received information that at the instance ofthe appellant 7.4 kgs of heroin would be carried in a Toyota Qualisvehicle – Vehicle apprehended – In terms of the statement of theaccused no.2 (co-accused), he met one ‘M’ from Bombay who toldhim that after taking delivery of the contraband from him, the co-accused was to take the heroin and hand it over to one ‘N, who wasto further hand over the heroin to the appellant – Confessionalstatement of the appellant recorded by PW-1 – Appellant convictedu/s. 8(c) r/w ss.29, 21, 23(c) and 27(A) – Held: Allegation withregard to the appellant is only in the nature of hearsay that ‘M’ hadtold the co-accused that he had to deliver the contraband to theappellant – Neither the said ‘M’ from Bombay nor ‘N’ have beenexamined in the case nor they have been arrayed as accused ––Therefore, the link evidence is totally missing Further, admittedlythe confession of the appellant was recorded after he was arrested–Issue, whether statement recorded u/s.67 of the NDPS Act can beconstrued as confessional statement even if the officer who recordedsuch statement was not to be treated as a police officer, has beenreferred to larger Bench in Tofan Singh v. State of Tamil Nadu –Present case is proceeded on the premise that the confession isadmissible – Even if it is admissible, the Court has to be satisfiedthat it is a voluntary statement, free from any pressure and also thatthe accused was apprised of his rights before recording theconfession – No such material has been brought on record –Confession, especially a confession recorded when the accused isin custody, is a weak piece of evidence and there must be somecorroborative evidence –Other than the two confessional statements,

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Aone of the co-accused and the other of the appellant, the prosecutionhas gathered no evidence to link the appellant with the commissionof the offence – Confession of the co-accused, which was said tobe a corroborative piece of evidence is of no material value –Evidence not sufficient to convict the appellant – Both the TrialCourt and the High Court wrongly convicted the appellant –BJudgment of both the Courts below, set aside.

Evidence – Confession – Admissibility of – Discussed.

Allowing the appeal, the Court

HELD: 1.1 As far as the present appellant is concerned,Cthe only evidence, if it can be called that, is the statement of a co-accused (accused no.2) and his own alleged confession. The onlyallegation with regard to appellant is that after taking delivery ofthe contraband from ‘M’ of Bombay, the co-accused was to takethe heroin and hand it over to one ‘N’. The said ‘N’ was to further

Conclusion

Dhand over the heroin to the appellant. Neither the said ‘M’ fromBombay nor ‘N’ have been examined in the case nor they havebeen arrayed as accused. Therefore, the link evidence is totallymissing. Furthermore, the allegation is only in the nature ofhearsay that ‘M’ had told the co-accused that he had to deliverthe contraband to the present appellant. Even if the confessionEof the co-accused, A-2 is taken into consideration, it would onlyprove that ‘M” (from Bombay) had told the co-accused that ‘N’would handover the contraband to the present appellant. Thisevidence of a co-accused is a very weak type of evidence whichneeded to be corroborated by some other evidence. TheFconfession of a co-accused gives a clue to the investigatingauthorities as to how to investigate the matter and against whomto investigate the matter. Thereafter, it is for the investigatingofficers to collect evidence against the said person who has beennamed by the co-accused. In the present case no suchcorroborative evidence has been led. Admittedly, the confessionalGstatement of the appellant recorded by PW-1 was recorded afterhe was arrested. The issue, whether a statement recorded underSection 67 of the NDPS Act can be construed as a confessionalstatement even if the officer who has recorded such statementwas not to be treated as a police officer, has been referred to a H

larger Bench in the case of Tofan Singh v. State of Tamil Nadu.The decision of this case is therefore proceeded on the premisethat the confession is admissible. Even if it is admissible, theCourt has to be satisfied that it is a voluntary statement, freefrom any pressure and also that the accused was apprised of hisrights before recording the confession. No such material has beenbrought on the record of this case. A confession, especially aconfession recorded when the accused is in custody, is a weakpiece of evidence and there must be some corroborativeevidence. The confession of the co-accused, which was said tobe a corroborative piece of evidence, has been discussed aboveand is of no material value. Therefore, other than the twoconfessional statements – one of the co-accused and the other ofthe accused, the prosecution has gathered no evidence to linkthe appellant with the commission of the offence. As such, withoutgoing into the legality of the admissibility of the confession, it isheld that even if these confessions are admissible then alsothe evidence is not sufficient to convict the accused. [Paras 5-7][469-H; 470-A-H; 471-A-C]

Tofan Singh v. State of Tamil Nadu(2013) 16 SCC 31 :[2013] 9 SCR 962 – referred to.

Case Law Reference

[2013] 9 SCR 962referred toPara 7

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 296 of 2014.

From the Judgment and Order dated 19.02.2008 of the MaduraiBench of Madras High Court in Criminal Appeal No. 204 of 2007.

Shikhil Suri, Shiv Kumar Suri, Shilpa Saini, Advs. for the Appellant.

Ajit Kumar Sinha, Sanjay Kumar Tyagi, Rajan Kumar Chaurasia,Mrs. Rekha Pandey, T.A. Khan, Divyansh Rai, B.V. Balaram Das,B. Krishna Prasad, Advs. for the Respondent.

The Judgment of the Court was delivered by DEEPAK GUPTA, J.

1. This appeal by the accused is directed against the judgmentdated 19.02.2008 of the Madras High Court whereby it upheld the AB

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Ajudgment dated 16.12.2005 of the District and Sessions Judge, Maduraiacting as the Special Court for Narcotic Drugs and PsychotropicSubstances Act, 1985 (NDPS Act) cases and convicted the accusedalong with three others for having committed offences under the NDPSAct. As far as the appellant is concerned, he was convicted for havingcommitted offences under Section 8(c) read with 29, 21 and 23(c) andB27(A) of the NDPS Act and apart from that appellant had committedthe offence punishable under Section 8(c) read with 27(A) of the Actand sentenced to undergo rigorous imprisonment for a period of 15 yearsand to pay fine of Rs.1,50,000/- and in default of payment to undergosimple imprisonment for one year. Offence under Section 27A of theCAct relates to punishment for financing illicit traffic and harbouringoffenders and reads as follows:

27A. Punishment for financing illicit traffic and harbouringoffenders.- Whoever indulges in financing, directly or indirectly,any of the activities specified in sub-clauses (i) to (v) of clauseD(viiia) of section 2 or harbours any person engaged in any of theaforementioned activities, shall be punishable with rigorousimprisonment for a term which shall not be less than ten years butwhich may extend to twenty years and shall also be liable to finewhich shall not be less than one lakh rupees but which may extendto two lakh rupees:E Provided that the court may, for reasons to be recorded inthe judgment, impose a fine exceeding two lakh rupees”

2. The essential ingredient of this offence is that the prosecutionmust prove that the accused has financed directly or indirectly any ofFthe activities falling in sub-clause (i) to (v) of Clause (viiia) of Section 2of the Act or has harbored any person engaged for the aforesaid activities.As far as the case of the prosecution is concerned, it is only of financingand not of harboring.

Section 8(c) of the NDPS Act reads as follows:G8. Prohibition of certain operations.- No person shall- (a).........

(b) .........

(c) produce, manufacture, possess, sell, purchase, transport,Hwarehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drugor psychotropic substance, except for medical or scientific purposes and in the manner andto the extent provided by the provisions of this Act or the rules ororders made thereunder and in a case where any such provision,imposes any requirement by way of licence, permit or authorisationalso in accordance with the terms and conditions of such licence,permit or authorisation:

Provided that, and subject to the other provisions of this Act andthe rules made thereunder, the prohibition against the cultivationof the cannabis plant for the production of ganja or the production,possession, use, consumption, purchase, sale, transport,warehousing, import inter-State and export inter-State of ganjafor any purpose other than medical and scientific purpose shalltake effect only from the date which the Central Governmentmay, by notification in the Official Gazette, specify in this behalf:

[Provided further that nothing in this section shall apply to theexport of poppy straw for decorative purposes.]”

3. This is basically an offence for exporting or importing into Indiaor exporting from India contraband substance. Though, the chargesagainst the appellant were of financing and of indulging in internationalsmuggling of contraband, virtually no evidence in this regard has beenfound.

4. We now may refer to the facts necessary for disposal of thiscase. On 04.01.2003, the Intelligence Officer, Narcotic Departmentreceived information that at the instance of the present appellant 7.4kgs. of heroin would be carried in a Toyota Qualis vehicle bearing No.TN31 C 9117. This vehicle was apprehended when it was parked at TamilNadu Hotel of Madurai - Alagar Koil road and 7.4 kgs. of heroin wasrecovered from it. At that time accused no.2 to 6 were sitting in the car.Accused nos.2 to 4 have been convicted under various provisions of theNDPS Act. We are not concerned with them since, to our knowledge,no appeal has been filed by them.

5. As far as the present appellant is concerned, the only evidence,if it can be called that, is the statement of a co-accused (accused no.2)and his own alleged confession. As far as statement of co-accused(Ext.P41) is concerned, in that the co-accused states in great detail as to A

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Ahow he came into contact with one other person also called Mohammedin Bombay who had instructed him to go to Manglapuram from Bombay.There he was again asked to come to Hotel Airline at Manglapuramwhere he met the said Mohammed of Bombay. It was that Mohammedof Bombay, who handed over the vehicle to him and told him that 7.4 kgsof heroin is kept hidden in 7 packets in a false compartment beneath theBfront seat of the car. The only allegation with regard to appellant is thatafter taking delivery of the contraband from Mohammed of Bombay,the co-accused was to take the heroin and hand it over to one Nalliappan.The said Nalliappan was to further hand over the heroin to the appellant.Neither the said Mohammed from Bombay nor Nalliappan have beenCexamined in the case nor they have been arrayed as accused. Therefore,the link evidence is totally missing. Furthermore, the allegation is only inthe nature of hearsay that Mohammed had told the co-accused that hehad to deliver the contraband to the present appellant. Even if we takethe confession of the co-accused Hasan Mohamed (A-2) intoconsideration, it would only prove that Mohammed (from Bombay) hadDtold the co-accused that Nalliappan would handover the contraband tothe present appellant. This evidence of a co-accused is a very weaktype of evidence which needed to be corroborated by some otherevidence. The confession of a co-accused gives a clue to the investigatingauthorities as to how to investigate the matter and against whom toEinvestigate the matter. Thereafter, it is for the investigating officers tocollect evidence against the said person who has been named by the co-accused. In the present case no such corroborative evidence has beenled.

6. That brings us to the confessional statement of the appellantFrecorded by PW-1. Admittedly, this confession was recorded after theappellant was arrested. It is true that the issue, whether a statementrecorded under Section 67 of the NDPS Act can be construed as aconfessional statement even if the officer who has recorded suchstatement was not to be treated as a police officer, has been referred toa larger Bench in the case of Tofan Singh v. State of Tamil Nadu[1].G

7. We, for the decision of this case, therefore, proceed on thepremise that the confession is admissible. Even if it is admissible, theCourt has to be satisfied that it is a voluntary statement, free from anypressure and also that the accused was apprised of his rights before

recording the confession. No such material has been brought on therecord of this case. It is also well settled that a confession, especially aconfession recorded when the accused is in custody, is a weak piece ofevidence and there must be some corroborative evidence. The confessionof the co-accused, which was said to be a corroborative piece of evidence,has been discussed above and is of no material value. Therefore, otherthan the two confessional statements – one of the co-accused and theother of the accused, the prosecution has gathered no evidence to linkthe appellant with the commission of the offence. As such, withoutgoing into the legality of the admissibility of the confession, we hold thateven if these confessions are admissible then also the evidence is notsufficient to convict the accused.

8. We, accordingly, find force in the appeal. We hold that both theTrial Court and the High Court wrongly convicted the accused. We setaside the judgment of both the Courts below. Appeal is accordinglyallowed. The accused is already on bail. His bail bonds are discharged.

Divya Pandey

Appeal allowed.

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