Kerala High Court
Ismail Ajmeri vs State Of Kerala on 24 February, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID
FRIDAY, THE 6TH DAY OF SEPTEMBER 2013/15TH BHADRA, 1935
CRL.A.No. 262 of 2008 ( )
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AGAINST THE JUDGMENT IN SC 205/2006 of ADDL.SESSIONS COURT (ADHOC-I),
KASARAGOD DATED 24-02-2007
APPELLANT/1ST ACCUSED::
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ISMAIL AJMERI,S/O.KHAJUI MOHAMMED,
VILLAGE BHAGHA, TEHSIL PRATAPGARH
DISTRICT CHITTORGARH, RAJASTAN.
BY ADV. SRI.SUNNY MATHEW
RESPONDENT/COMPLAINANT::
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STATE OF KERALA, NARCOATIC CONTROL
BUREAU, RIU, THIRUVANANTHAPURAM.
BY PUBLIC PROSECUTOR SRI VIJU THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
06-09-2013 ALONG WITH CRL.APPAL NO.1260/2007, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
"C.R"
HARUN-UL-RASHID,J.
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CRL.APPEAL NOS. 262 OF 2008 &
1260 OF 2007
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DATED THIS THE 6TH DAY OF SEPTEMBER, 2013
JUDGMENT
Appellant in Crl. Appeal No.262/2008 is the lst accused in S.C.No.205/2006 on the file of the Additional Sessions Court (Adhoc-I), Kasaragod. The connected Crl. Appeal No.1260/2007 was filed by the Narcotic Control Bureau, Regional Intelligence Unit, Thiruvananthapuram. The appeals are directed against the judgment dated 24/2/2007 in the said cases. Crl.A.No.1260/2007 was filed challenging the acquittal of accused No.2 of all the charges. Accused 1 and 2 in S.C.No.205/2006 were charge sheeted and tried for the offence punishable under Section 8(c) read with 29, Section 8(c) read with 21(C) and Section 8(c) read with 27A of the Narcotic Drugs and Psychotropic Substances Act, (for short 'NDPS Act'), 1985. Out of the 4 accused, accused Nos.3 and 4 never appeared before the court and hence the case against them was split up. Accused No.1 was found guilty of the offence punishable under Section 8(c) read with 21(c) of the NDPS Act and convicted thereunder. Accused No.2 was found not guilty of the charges levelled against him and he was acquitted of all the charges. The appellant/1st accused is sentenced to undergo rigorous -2- Crl.A.No.262/2008 & 1260/2007 imprisonment for a period of 15 years and to pay a fine of `2,00,000/- for the offence punishable under Section 8(c) read with 21(c) of the NDPS Act. Parties are hereinafter referred to as arrayed in the S.C.
2. The prosecution case is that accused 1 to 4 along with others entered into a criminal conspiracy at Kasaragod and Ujjain to procure, import, inter-state, possess and transport 710 grams of heroine in November, 2005. In pursuance of the criminal conspiracy, accused 1 and 2 jointly possessed and transported 710 grams of heroine out of which 405 grams were seized from the lst accused's bag at about 6-30 a.m. on 19/11/2005 at Kasaragod railway station and the balance quantity from his sandals about 21.15 hours on the same day at the Office of the Customs Preventive Unit, Kasaragod. It is also alleged that pursuant to the criminal conspiracy accused No.2 financed for the procurement of heroine from North India. The prosecution case is that the total quantity of contraband article possessed and transported is 710 gms. of heroine.
3. Prosecution examined PWs. 1 to 8. Exts.P1 to P41 were marked on the side of the prosecution. Material Objects were also identified. On the defence side two witnesses were examined as DWs.1 and 2 and Exts.D1 to D3 were also marked. -3- Crl.A.No.262/2008 & 1260/2007 The court below examined 4 points arise for consideration in this case. When questioned under Section 313 Cr.P.C. both the accused denied all the prosecution averments and submitted that they committed no offence as alleged by the prosecution. They also filed written statements at the close of questioning.
4. PW1 is the detecting officer. According to PW1, he got specific secret information that pursuant to a conspiracy, heroine, a narcotic drug, would be brought to Kasaragod by accused 1 and 2 by concealing it in their hand bags and that they would arrive at Kasaragod railway station by Nethravathi Express at about 5-30 a.m. on 19/11/2005. It is testified among other things that two passengers matching the description given in Ext.P1 were seen coming together to the main exit of the station. PW1 and his party detained the accused and they were asked whether they were concealing any narcotic drug in their bags. They were taken to the waiting room. PW1 found a polythene bag containing light brown powder inside the bag of the lst accused. A pouch of the powder was tested using the field drug detection kit. According to him, the result was positive for heroine. PW1 seized the heroine. Two samples of heroine weighing 5 grams each were taken in two envelops and they were sealed and marked S1 and S2. PW1 prepared Ext.P6 mahazar incorporating the details of seizure and -4- Crl.A.No.262/2008 & 1260/2007 sampling. PW1 issued notice under Section 67 of the NDPS Act. Ext.P7 is the notice issued to accused No.1 and Ext.P8 to accused No.2. Statement under Section 67 of the Act of both accused were recorded in the Customs Preventive Unit Office, Kasaragod. Accused No.1 gave Ext.P9 statement and accused No.2 gave Ext.P11 statement. On the same day PW1 found that 200 grams of narcotic drug were concealed by accused No.1 in his pair of sandals. The three layered polythene cover contained light brown powder. A pinch of it was tested and it was also found to be heroine. PW1 seized the sandals and the narcotic drug packets. The total quantity of 405 grams were recovered from the chappel seized by him. According to PW1, the test for heroine was positive. After completing the formalities, both the accused were produced along with remand report before the Judicial First Class Magistrate, Kasaragod at 8-30 a.m. on 20/11/2005 and they were remanded. It is submitted that the records and the material objects were also produced before the Magistrate. Ext.P19 is the occurrence report submitted by PW1 before the Magistrate, Ext.P20 the list of documents and Ext.P21 the list of properties. PW2 is the police constable attached to the railway police station, Kasaragod. He is the witness to the seizure effected at the railway station. PW2 testified that he accompanied PW1 and others to the -5- Crl.A.No.262/2008 & 1260/2007 main exit of the railway station. He deposed in terms of the complaint and as spoken to by PW1. PW2 is not sure whether he had made any entries in his official note book regarding the involvement in the search and seizure. PW3 is the Vigilance Officer, Kannur Telephone Exchange, BSNL. He furnished the call particulars of land phone No.2272453 of Pallikkara Exchange for the period from 1/8/2005 to 19/11/2005. Ext.P13 is the call particulars. The subscriber is accused No.2. PW4 is the Sepoy working in the Customs Preventive Unit, Kasaragod. He was present at the office when accused 1 and 2 were brought to the office around 11-00 a.m. on 19/11/2005. He deposed that 1st accused's left foot accidentally hit against the door frame of the room and when observed the tip of the sandal he worn on his left foot was seen split. On inspection a polythene bag was seen concealed in the sole of the sandal of the left foot. According to him, the sole of the sandal of the right foot was also split open by the officials and another polythene cover was seen inside it. The polythene bags contained some light brown powder. PW5 is the Inspector of Customs attached to the Customs Preventive Unit, Kasaragod. PW5 along with his departmental driver and two subordinates went to the railway station as requested by the NCB officials. He deposed that he had witnessed the incident. PW6 is -6- Crl.A.No.262/2008 & 1260/2007 the Sub Divisional Engineer, Mobile Unit, Office of the BSNL, Kanhangad. Ext.P32 is the out going call data of the mobile phone No.9447285547 in the name of the 3rd accused. PW7 was the Superintendent of Regional Intelligence Unit of Narcotic Centre Bureau, Thiruvananthapuram during November, 2005. He received Ext.P1 report from PW1 on 18/11/2005. He deposed that search authorisation was issued to PW1 to search the houses of the accused 2 and 3. Ext.P34 is the search authorisation relates to the house of accused No.2 and Ext.P35 is that of accused No.3. PW8 is the Intelligence Officer, Regional Unit of Narcotic Control Bureau, Thiruvananthapuram. He took up investigation of the case on 22/11/2005. Statements of PWs.1, 2, 3 and 4 were recorded by him. He submitted that Ext.P36 report was filed before the court requesting to send the samples for chemical analysis. Analysis reports were marked as Exts.P37 and P38, which show that the samples were heroine. The reports also show that quantitative test was not conducted to fix the percentage of heroine in the sample. There was no facility in the analysis laboratory for conducting the quantitative test.
5. Witnesses cited on the defence side are CWs. 5 and 6 in the final report. DW1 was the Manager of the Fort Land Hotel and DW2 the Manager of EEYEM Lodge, Palakkunnu. -7- Crl.A.No.262/2008 & 1260/2007
6. The court below specifically examined the points one by one that arise for consideration. The learned Judge examined whether accused Nos.1 and 2 together came in Nethravathi Express and alighted at Kasaragod railway station at about 6-30 a.m. on 19/11/2005. After evaluating the evidence on record, the court below found that none of the witness found accused 1 and 2 alighting from the train and that they were found near to each other while approaching the main exit. The court below concluded that the fact proved does not lead to the conclusion that they were coming together or coming from North India or they had any common idea, purpose or design. The court examined Exts.P4(a) and P4(b) railway tickets alleged to be used for travelling from Panvel to Kasaragod. According to the prosecution, those tickets were seized from the 2nd accused. After examining those two tickets, the court observed that there were no marks of the date and seal in the tickets, that the said fact will probabilise the defence version that Exts.P4 (a) and P4(b) are not genuine tickets and that they were not really seized from the 2nd accused. The defence version was accepted and the court found that the tickets produced were not genuine. The court below also examined the prosecution case as to whether the lst accused has voluntarily handed over Exts.P4(a) and P4(b) tickets to PW1.
-8- Crl.A.No.262/2008 & 1260/2007
7. The court below on facts found that the overt acts were falsely and deliberately attributed on the 2nd accused to trap him also along with the lst accused. According to the learned Sessions Judge, what is established in this case is that both accused Nos. 1 and 2 were found near each other while approaching the main exit. The court found that heroine was seized from the bag of the lst accused. It was found that 2nd accused never revealed his involvement in the affair by overt acts. The 2nd recovery of heroine was also from the possession of the lst accused. The court did not accept the confession made by the 2nd accused to the effect that he along with the lst accused boarded Nethravathi Express at Panvel at about noon on 18/11/2005 and alighted at Kasaragod railway station at 6-15 a.m. on 19/11/2005. The court also found that the confession of the lst accused on this point is also unacceptable. For the reasons stated the court found that the statements of the accused Nos.1 and 2 prepared under Section 67 of the NDPS Act cannot be relied upon nor can it be acceptable.
8. Ext.P38 is the chemical examination report. Ext.P37 test memo contains the details of the description of the drug, weight of sample, date and place of seizure and the date of sample despatched. Sample was despatched on 19/11/2005. The chemical -9- Crl.A.No.262/2008 & 1260/2007 examiner in Ext.P38 reported that sealed packet was received on 23/11/2005 and the packet was opened on 7/12/2005 for chemical examination. It is reported thus:
a) Qualitative tests: The sample answered tests for the presence of heroine.
b) Quantitative tests: The laboratory is not equipped to conduct quantitative test and if the same is required the sample may be forwarded to Re Director (RL), CRCL, IARU-P.O., New Delhi-12.
c) General observation: The sample is in the form of light of the chemist : brown powder and small lumps.
He was of the opinion that the sample under reference is heroine.
9. The learned counsel for the appellant in Crl.A.No.262/2008 confined his submission to the limited issue relating to the sentence imposed on him under Section 8(c) read with 21(c) of the Act. The lst accused was sentenced to undergo rigorous imprisonment for a period of 15 years and to pay a fine of `2,00,000/-, in default of payment of fine, he shall undergo rigorous imprisonment for a further period of two years. According to the learned counsel, his conviction and sentence are contrary to law because the total quantity of heroine seized from him was far less than 710 grams, which is alleged to have been in -10- Crl.A.No.262/2008 & 1260/2007 his possession. It is said that the quantity of heroine was 1.4%. The chemical examiner only certified that the sample answered quality tests for the presence of heroine. No test was conducted to assess the quantity of heroine contained in the sample. The quality test report proves that there is presence of heroine in the sample. The quantity of heroine present in the sample is not ascertained. It is also submitted that it was the total weight of the substance allegedly recovered, that was the article which contains heroine.
10. Learned counsel for the respondent contended that the entire material found in possession irrespective of the contend of the finding material has taken into consideration while imposing punishment. In the present case the finding material found in possession of the lst accused is 710 gms. The quantity of 710 gms. is commercial quantity. The quantity taken possession is the entire material found in possession of the lst accused irrespective of the contend of the finding material. Therefore, since the quantity test was not conducted, this Court is not in a position to ascertain and find the exact quantity of the contend of heroine. It can either be small quantity, intermediate quantity or commercial quantity.
11. In the notification issued by the Central Government which deals with the heroine, small quantity has been -11- Crl.A.No.262/2008 & 1260/2007 mentioned as 5 gms., commercial quantity as 250gms. and above. Intermediate quantity is between 5gms. and 250gms. So the basic question to be decided is whether the total weight of the substance relevant is a small, intermediate or commercial quantity. Punishment depends upon the quantity of heroine seized i.e. small quantity, intermediate quantity or commercial quantity. So long as the quantity test was not conducted for ascertaining the quantity recovered from the accused, it is not possible to decide the quantity of heroine. The very same issue was considered by the Apex Court in the decision reported in Michael Raj E. v. Narcotic Control Bureau (2008 (2) KHC 323)(SC). The court held that the intention of the legislature is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such and that in the mixture of a narcotic drug or psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity, of a narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity.
12. The appellant/lst accused was taken into custody on 19/11/2005. He is undergoing sentence in judicial custody till date -12- Crl.A.No.262/2008 & 1260/2007 from the date of arrest. He had undergone sentence for the last 7 years and 9 months. In these circumstances, the ends of justice would be served, if the sentence is reduced to rigorous imprisonment for 7 years and a fine of `10,000/- (Rupees ten thousand), in default of payment of fine, he shall undergo rigorous imprisonment for 15 days.
13. The Special Prosecutor for the Narcotic Control Bureau, the appellant in Crl.M.A.No.1260/2007 submitted an argument note which contains the various contentions urged in support of the grounds raised in the appeal. According to the learned Special Prosecutor, there is materials and evidence to show that accused Nos.1 and 2 came together at Kasaragod railway station after alighted from the train Nethravathy Express at 6-30 p.m. on 19/11/2005. It is pointed out that the evidence of detecting officer PW1, senior officer PW7 and the evidence of two independent witnesses PWs. 2 and 5 proved the said fact. It is contended that the railway tickets Exts.P4(a) and P4(b) used for travelling from Panvel to Kasaragod were seized from accused No.2. There is evidence to prove that the railway tickets that seized from the 2nd accused show that accused No.1 and 2 travelled together. The counsel attacked the finding arrived at by the trial court that the tickets are not genuine and contended that the said -13- Crl.A.No.262/2008 & 1260/2007 finding is not correct. Counsel also brought to the notice of this Court the acts of accused No.2, who voluntarily handed over Exts.P4(a) and P4(b) tickets to PW1 saying that there is narcotic drug in 1st accused's bag, picked the bag from 1st accused's hand and handed over it to PW1. The trial court, after appreciating the facts, concluded that overt acts were falsely and deliberately attributed on accused No.2 to trap him also along with accused No.l. Learned Special Prosecutor also challenged the finding of the trial Judge that minor discrepancy in the evidence is quite normal and does not cut the root of the prosecution version. It is pointed out that the evidence of all the witnesses Pws.1, 2, 5 and 7 reveal that all of them saw Nethravathy Express coming and passengers alighting from rear side also. It is urged that defence has no suggestion or a better case that another train also came at the same time or that 2nd accused was resting while alighting from another train and when Nethravathy Express came he too decided to went out through the main exit making them purely coincidence to be along with the lst accused at that particular time etc. According to the Special Prosecutor, the court below did not apply its judicial mind while evaluating the evidence properly which created this anomaly in reaching the conclusion which is directly opposite to each other. The Special Prosecutor urged that the -14- Crl.A.No.262/2008 & 1260/2007 statements made by accused 1 and 2 purported to be in terms of Section 67 of the Act is admissible in evidence. Relying on the decision of the Apex Court the Special Prosecutor contended that the statement recorded under Section 67 of the Act can be used as substantive evidence. It is also urged that the confession made before an officer of the department of Revenue Intelligence under the NDPS Act is not hit by Section 25 of the Evidence Act. The Special Prosecutor elaborately took me to the oral evidence adduced by PWs.1 and 8. According to him, the confession was recorded in the office of the Customs Preventive Unit for security reasons. He had also submitted in detail the call numbers of mobile phones used by accused Nos.1, 2, 3 and others. According to the Special Prosecutor, the finding of the court below that nothing prevented PW1 from recording the confession in the waiting room of the railway station is erroneous. It is submitted that Ext.P30 to P32 reveal corroborative evidence of close contact of accused 1 to 3, accused 3 to 2 etc. According to the Special Prosecutor, the finding of the trial court regarding the non- compliance of section 50 is not legally sustainable as it is a chance recovery. The first recovery of 305 grams was from a bag possessed by accused No.1 since the packet is not a part of body and hence Section 50 compliance is not necessary. The Special -15- Crl.A.No.262/2008 & 1260/2007 Prosecutor also submits that with regard to the second recovery, 405 grams of heroine from sandals are exception to Section 50. It is further submitted that the same was recovered not in body search and was chance or accidental recovery only. The Special Prosecutor also cited the decisions reported in Directorate of Enforcement v. Deepak Mahajan and another (1994 KHC 801), Pon Adithan v. DD.NCB, Madras ((1999 KHC 1247) (SC) Prabhulal v. The Assistant Director (AIR 2003 SC 4311), Binu v. Union of India and others (2011 (2) KHC 817) and Nathubhai Babarbhai Patel v. State of Maharashtra (2001 Cr.L.J. 535 Bombay). The Apex Court in U.O.I. v. Balmukund and others (2009 CRL.L.J. 2407) held that if the accused were in custody, it cannot be said that they had made voluntary statement which specifies the condition precedent laid down under Section 67 of the Act.
14. The Court below found that the confession made by the 2nd accused to the effect that he along with the 1st accused boarded Nethravathi Express at Panvel about noon on 18/11/2005 and alighted at Kasaragod railway station at 6-15 a.m. on 19/11/2005 cannot be relied on. The court below also found that the confession of the lst accused is unacceptable. Ext.P9 is the statement of the lst accused in Hindi and Ext.P11 is that of the 2nd -16- Crl.A.No.262/2008 & 1260/2007 accused. Ext.P15 is the additional statement of the 2nd accused. Exts.P9 and P11 are dated 19/11/2005 and Ext.P15 is dated 20/11/2005. The time of detection was 6-30 a.m. on 19/11/2005. The accused were under detention till they were produced before the Magistrate on 20/11/2005 at 8-30 a.m. After conducting search, PW1 and other officers took the accused to the office of the Narcotic Control Bureau. Exts.P9, P11 and P15 statements under Section 67 of the Evidence Act at the office on 19/11/2005 were recorded before the arrest was recorded at 6-00 p.m., during the time when they were under detention of PW1 and other Officers.
15. The Apex Court in the decision reported in Ram Singh v. Central Bureau of Narcotics (2011 (2) KLT SN 99) (SC) held that Officers of the Central Bureau of Narcotics are not police officers within the meaning of Sections 25 and 26 of the Evidence Act and, hence, confessions made before them are admissible in evidence. It was also held that a confession made by an accused rendered irrelevant in criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise with reference to the charge against the accused. The court also observed that however, before solely acting on confession as a rule of prudence, the court requires some corroboration but as an abstract proposition of law it cannot -17- Crl.A.No.262/2008 & 1260/2007 be said that a conviction cannot be maintained solely on the basis of the confession made under Section 67 of the Act.
16. The accused were detained by the officers from 6- 30 a.m. on 19/11/2005. Statements under under Section 67 were recorded while under detention and not in the presence of any independent witness or witnesses. Arrest was recorded at 6-00 p.m. on the same day. They were produced before the learned Magistrate on the following day at 8-30 a.m. Investigation Officer sought for and obtained his remand. On 20/11/2005 the 2nd accused lodged retracted confession statement. He has stated that confession is not voluntary, truthful or reliable and was caused by inducement and threat. Application was sent through the Superintendent of Jail. Before the learned Sessions Judge no independent witness was examined. The learned Judge found that the accused has not been liable to be convicted on the basis of confession as the same has not been corroborated by any independent witness. Confession made by the 2nd accused has been retracted at the earliest possible opportunity as soon as he was placed in judicial custody. Statement of accused No.2 having been recorded while he was in the custody of the authorities and it having not been proved that there was any element of voluntariness on his part to make statement confessing his guilt, -18- Crl.A.No.262/2008 & 1260/2007 the same would be hit by Sections 25 and 26 of the Evidence Act. The accused No.2 could have been convicted, only if confession made is voluntary and independent corroboration thereof was available.
17. The detecting party brought the accused in the waiting room of the railway station. They should have recorded the statement of the accused under Section 67 of the Act in the presence of independent witness or witnesses. That was not done. Notice issued under Section 67 of the Act is a mockery, since the accused are standing beside the officers in their office.
18. PW8, who is the Intelligence Officer, deposed that he did not enquire into the retracted confession of the 2nd accused. Admittedly, no contraband was found from the possession of the 2nd accused. He was prosecuted for entering into a conspiracy in regard to the commission of offence under Sections 8(c) read with 29, 8(c) read with 21(c) and 8(c) read with 27A of the Act with the lst accused. Material evidence in this case shows that such conspiracy was not proved by the prosecution. Evidence brought on record in that behalf was not accepted by the Sessions Judge for valid reasons. Though the 2nd accused submitted his application to retract the confession on 20/11/2005, which was sent to PW7, PW7 did not conduct any enquiry as to the correctness of the recorded -19- Crl.A.No.262/2008 & 1260/2007 statement. He did not even enquire about the facts stated therein. PW7 said that he did not ask PW1 or PW8 about the correctness of the statement. The retracted statement is not an empty formality. Responsible officers are duty bound to enquire about the facts stated therein in order to find out whether the confession has been made by any inducement, threat or promise with reference to the charge against the accused and should submit a report to the court after enquiry. Enquiry should have been made to find out whether the confession is voluntary, truthful or reliable. No steps are seen at all taken though retracted confession was made available on 20/11/2005. Though it is alleged that there is involvement of accused and others, the authorities conducted search only in the house of accused 2 and 3. There is no explanation for not conducting search in other places.
19. Admittedly, no contraband was found from the possession of the 2nd accused. He was prosecuted for entering into a conspiracy in regard to the commission of offence with accused No.1, 3, 4 and others. Such a contingency was not proved by the prosecution. No evidence whatsoever was brought on record in that behalf. Therefore, the court below rightly accepted the contention of the 2nd accused and acquitted him of all the charges levelled against him. The court below also rightly found that the -20- Crl.A.No.262/2008 & 1260/2007 confession statement of accused Nos.1 and 2 cannot be accepted for the reasons stated in detail.
20. The facts from the records show that two accused were in custody from 19/11/2005. In the proved circumstances, it cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act. In the backdrop of the aforementioned events, I find it difficult to accept that such statements had been made by them, although they had not been put under arrest. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken. The Apex Court in D.K.Basu v. State of West Bengal ((1997) 1 SCC 416) laid down the law that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. This rule was also followed by a Constitution Bench of the Apex Court in State of Punjab v. Baldev Singh (1999) 6 SCC 172). The Apex Court in Baldev Singh's case held thus:
"It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed and that the compliance with the procedural safeguards contained in Section 50 -21- Crl.A.No.262/2008 & 1260/2007 are intended to serve dual purpose to protect a person against false accusation and frivolous charge as also to lend credibility to search and seizure conducted by then empowered officer."
In Noor Aga v. State of Punjab and another (2008 (9) SCW 5964) the Apex Court held thus:
"The court while weighing the evidentiary value of such a statement cannot lose sight of ground realities. Circumstances attendant to making of such statements should, in our considered opinion, be taken into consideration." The Apex Court in U.O.I. v. Bal Mukund and others (2009 Crl.L.J. 2407) held interalia that:
"Where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years, and making stringent provisions for grant of bail, scrupulous compliance of the statutory provisions must be insisted upon. The Apex Court also held that conviction should not be based merely on the basis of a statement made under Section 67 of the Act without any independent corroboration particularly in view of the fact that such statements have been retracted."
In Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate and Another (( 2007 ) 8 SCC 254) the Apex Court held thus:
" Apart therefrom the High Court was bound -22- Crl.A.No.262/2008 & 1260/2007 to take into consideration the factum of retraction of the confession by the appellant. It is now a well settled principle of law that a confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom."
21. The court below acquitted the accused after appraising the evidence on record. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal.
In the result, Crl.Appeal No.2262/2008 is partly allowed. The sentence imposed against the lst accused is modified. The conviction is confirmed. The accused is sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/- (Rupees ten thousand) in default of payment of fine to undergo simple imprisonment for 15 days. Set off is allowed for the period of remand and the period of sentence undergone.
Crl.Appeal No.1260/2007 stands dismissed.
Sd/-
HARUN-UL-RASHID, JUDGE.
kcv.