Kerala High Court
Andichami @ Andiappan vs The Sub Inspector Of Police on 24 August, 2011
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2074 of 2010()
1. ANDICHAMI @ ANDIAPPAN, S/O.OCHATHEVAR,
... Petitioner
Vs
1. THE SUB INSPECTOR OF POLICE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :24/08/2011
O R D E R
V.K.MOHANAN, J
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Crl.A.No.2074 of 2010 `C.R.'
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Dated this the 24th day of August, 2011
J U D G M E N T
The appellant herein, who is the sole accused in S.C. 38/2008, challenges his conviction and sentence, as per the judgment dated 4.10.2010 in S.C.No.38/2008 of the Court of Special Judge (NDPS Act Cases), Vadakara under Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as 'the NDPS Act' only).
2. The prosecution case is that on 15.6.2008 at about 4.55 p.m., the accused was found in possession of 2.100 kgs of ganja in front of KSRTC bus stop at Perinthalmanna and subsequently, it came to the notice of the Detecting Officer that, he had also possessed another 30 kgs of ganja and thus seized altogether 32 kgs of ganja from his possession and thus he had committed the offence punishable u/s. 20(b)(ii)(C) of the NDPS Act.
3. On the basis of the said allegation, Crime No.474/08 was registered in the Perinthalmanna Police Station. After completing the investigation, the report was filed in the Special Court on 11.12.2008. After hearing the prosecution as well as the defence, a formal charge was framed against the accused for the above offence and the same was read Crl.A.No.2074 of 2010 :-2-:
over and explained to the accused, who denied the charge and pleaded not guilty, which resulted in the further trial, during which the prosecution adduced its evidence consisting of the oral testimony of Pws. 1 to 13 and the documentary evidence such as Exts. P1 to P18 and material objects namely Mos 1 to 10, were also produced and the same were identified during the trial. No evidence, either oral or documentary, was produced from the side of the accused. On the basis of the rival pleadings and the materials and evidence on record, the trial court formulated four points for its consideration. The evidence and the incriminating circumstances, which emerged during the evidence of prosecution, were put to the accused u/s. 313 of Cr.P.C. and he denied the same and maintained the stand of total denial. Based upon the available materials and evidence on record, the trial court has found that the accused is guilty of the charges levelled against him and accordingly, he is convicted u/s. 20(b)(ii)(C) of the NDPS Act and consequently he is sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh and in default he is directed to undergo rigorous imprisonment for a further period of 6 months. Thus, on the basis of the above judgment, the accused is undergoing the sentence imposed against him and he is in custody right from the date of his arrest ie., on Crl.A.No.2074 of 2010 :-3-:
15.6.2008. It is the above conviction and sentence challenged in this appeal.
4. In this juncture, it is pertinent to note that initially, the appellant herein had approached this Court by filing Crl.A.2088/2009 challenging the conviction and sentence under Section 20 (b)(ii) (C) of the NDPS Act and this Court allowed the above appeal in part. Thus by judgment dated 23.3.2010 in Crl.A.No.2088/2009, this Court confirmed the conviction of the appellant under Section 20 (b)(ii)(C) of NDPS Act and also confirmed the finding of the court below, under point No.1 by its earlier judgment dated 29.9.2009 in S.C. No.38/2008 and thus, while confirming the finding of the learned Judge regarding the first seizure, the finding under second point as per its earlier judgment with respect to the second seizure has been set aside and this Court remanded the matter back to the trial court for disposal and awarding adequate punishment on the basis of the outcome on fresh consideration after the remand of the matter, since the quantum of punishment depends upon the correctness of the second seizure effected by the police.
5. Thus after the remand of the matter as per the judgment of this Court dated 23.3.2010 in Crl.A.2088/2009, the learned Judge of the trial Crl.A.No.2074 of 2010 :-4-:
Court heard the case again in detail on point No.2 with regard to the seizure of 30 kg of ganja. As per the present impugned judgment, the learned Judge has found that the prosecution evidence on record clearly shows that the accused was found in possession of 30 kgs of ganja at his residence and it is further found that the total quantity of ganja found in the physical possession of the accused and possessed at house No.3/307 is 32 kg, which is far above the commercial quantity and thus according to the learned Judge, the accused is liable for a sentence of rigorous imprisonment for 10 years and fine of `. 1,00,000/-(rupees one lakh only). Thus, according to the learned Sessions Judge, since that Court has already inflicted minimum sentence for the offence under Section 20 (b)(ii)(C), the sentence already imposed warrants no alteration. Accordingly, confirming the earlier sentence imposed against the appellant, the trial court sentenced the appellant to undergo rigorous imprisonment for 10 years and pay a fine of `.1,00,000/- (rupees one lakh only) and in default, he is directed to undergo rigorous imprisonment for a further period of six months. It is the above supplemental judgment of the trial court is now challenged in this appeal.
6. I have heard Sri. T.G. Rajendran learned counsel for the appellant as well as Sri. P.A. Salim, learned Public Prosecutor for the State. Crl.A.No.2074 of 2010
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7. As this Court has already confirmed the finding of the trial court, with respect to the first seizure in which 2 kgs of ganja is involved, as per the judgment dated 23.3.2010 of this Court in Crl.A.2088/2009, the learned counsel for the appellant confined his argument with respect to the second seizure which is the subject matter of the supplemental judgment, which is under challenge. The learned counsel for the appellant vehemently submitted that even according to the prosecution, the second seizure was effected on the basis of the information furnished by the accused after his arrest and during his interrogation and therefore, PW12 is duty bound to ensure the compliance of the conditions stipulated in Sections 41 and 42 of the NDPS Act. The second contention of the learned counsel is that the Circle Inspector of police, who received the information from the accused has not reduced the information into writing and no permission was obtained from the Magistrate concerned and therefore, there is gross violation of proviso to Section 42 of NDPS Act.
8. Another important contention raised by the learned counsel is that the prosecution has not established and proved that the contraband article allegedly seized was found in his exclusive possession. In support of the above submission, learned counsel has pointed out that the evidence and Crl.A.No.2074 of 2010 :-6-:
materials produced by the prosecution itself would show that the house, from which the contraband article was seized is not of his own house, but the house of his wife and therefore it cannot be said that the prosecution has recovered contraband article from the possession of the accused. According to the learned counsel, since there were more than one inmate in the house, the prosecution is bound to prove that the contraband article, allegedly seized from the house, is from the exclusive possession of the accused. Learned counsel further submitted that in Ext.P5 seizure mahazar, no house number is shown. It is also the contention of the learned counsel that as per Ext.P1 scene plan, under item No.19 shown therein, house number is furnished and the same is belonged to the accused. Thus according to the learned counsel the prosecution has miserably failed to prove that the contraband article allegedly seized as per Ext.P6 scene mahazar was in the physical possession of the appellant.
9. Another important contention raised by the learned counsel for the appellant is that as per the version of the prosecution, the accused was arrested by 4.55 pm on 15.6.2008 and Ext.P11 statement allegedly given by the appellant was obtained when he was under police custody and therefore, Ext.P11 statement is hit by Sections 25 and 26 of the Indian Evidence Crl.A.No.2074 of 2010 :-7-:
Act,1872 (for short 'the Act') and therefore, the same cannot be used under Section 27 of the Act. In support of his contention, the learned counsel placed reliance upon the decisions of the Apex Court reported in State of Rajasthan v. Shanti [(2009) 12 SCC 400), State of Orissa v. Laxman Jena [(2009) 16 SCC 332), Mohd. Alam Khan v. Narcotics Control Bureau and another (AIR 1996 SCC 3033), Kanhaiyalal v. Union of India [(2008)4 SCC 668) and State of A.P. v. Gangula Satya Murthy (1997 (1) SCC 272).
10. On the other hand, the learned Public Prosecutor strenuously submitted that there is no illegality in the finding of the trial court with respect to the second seizure, especially when this court has approved the prosecution case regarding the first seizure. According to the learned Public Prosecutor, the compliance of Sections 41 and 42 arose only when the officer concerned is receiving an information as contemplated therein and in the present case, requirement of Sections 41 and 42 is strictly complied with and it was, on the basis of such information, the first seizure was effected. The law does not contemplate recording information again in terms of Section 41 and 42, when the officer concerned gets information during the course of investigation, which commenced on the basis of a first and formal Crl.A.No.2074 of 2010 :-8-:
information received. It is the further contention of the learned Public Prosecutor that there is no legal impediment in effecting the seizure on the basis of the information furnished by the accused, who is in custody after his arrest, with the aid of S.27 of the Act. According to the learned Public Prosecutor, the prohibitory clause contained in Sections 24, 25 and 26 of the Act is applicable, irrespective of the fact whether the person, who makes such confession, is arrested or not. Thus, according to the learned Public Prosecutor, as Section 27 of the Act is an exception to Sections 24 to 26 of the Act, the second seizure, on the basis of the disclosure statement of the accused, squarely comes u/s. 27 of the Evidence Act. In support of the above submission, learned Public Prosecutor placed reliance upon the following decisions, namely, In re Ramachandran(AIR 1960 Madras 191), State of Bihar v. Madanlal Agarwalla and Others (AIR 1967 Patna 68) and State of Uttar Pradesh v. Deoman Upadhyaya (AIR 1960 SC 1125).
11. I have carefully considered the argument advanced by Sri.T.G.Rajendran, learned counsel for the appellant and Sri.P.A.Salim, learned Public Prosecutor. Once again I have scrutinized the evidence and materials and perused the impugned supplemental judgment of the court below.
Crl.A.No.2074 of 2010
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12. As I indicated earlier, this court by judgment dated 23.3.2010 in Crl.A.No.2088 of 2009 confirmed the conviction of the appellant u/s.20(b)
(ii)(C) of the NDPS Act, on the basis of the approval of the finding of the trial court that the prosecution has succeeded in proving the allegation that the appellant was found in possession of 2.100 Kgms. Ganja in front of the KSRTC bus stand at Perinthalmanna at about 4.55 p.m on 15.6.2008. But this court, for the reason assigned in that judgment, was not inclined to approve the sentence awarded against the appellant by the trial court, since the legal point raised by the appellant with respect to the second seizure was not considered by the judge of the trial court and therefore, awarding of a sentence on the allegation that the appellant was found in possession of 32 Kgms of ganga was improper and accordingly, the matter was remanded back. Now the trial court by the impugned supplemental judgment, after hearing the objections and contentions raised by the appellant has found that the second seizure from the house of appellant is proved by the evidence of PW1 and PW4, who accompanied PW12, for the second seizure and by the evidence of PWs.9 and 10 who are attesters to Ext.P5 seizure mahazar. It is the above finding now under challenge.
13. As I mentioned earlier, the first point raised by Sri.T.G.Rajendran, Crl.A.No.2074 of 2010 :-10-:
counsel for the appellant is that, there is no compliance of Sections 41 and 42 of the NDPS Act. I am unable to sustain the above contention. The first seizure itself was effected on the basis of the information received by PW12, who is the then Circle Inspector of Police, Perinthalmanna Police Station. That information itself was to the effect that one person wearing "black Kalli mundu" and " black kalli shirt" who was above at the age of 50 from Attappadi found in possession of ganja in a big shopper from KSRTC bus stand at Perinthalmanna. PW12, on receiving the information reduced the same into writing and acted upon it and thus, prepared report u/s.42 and sent the same to his immediate superior officer and thereafter, proceeded to the spot and in terms of the demand of the appellant and in compliance with the statutory mandate contained in S.50 of the NDPS Act, PW12, brought the Tahsildar, Perinthalmanna, who is examined as PW2 and thereafter PW12 conducted search and recovered 2.100 Kgms of ganja from the physical possession of the appellant as per Ext.P1 seizure mahazar. That part of seizure is approved by this court as per the earlier judgment. From the above finding, it can be seen that on receiving the information, PW12 has duly complied with the requirement of S.42 consequent to which seizure was effected. In view of Sections 41 and 42 of the NDPS Act, in the Crl.A.No.2074 of 2010 :-11-:
present case, according to me, it can be seen that the requirement of recording of an information received u/s. 42 is satisfied with. Nowhere in the NDPS Act it is stated that, as and when information received during the course of investigation, the officer concerned should repeat the formalities contemplated u/s.41 or 42 as the case may be. In view of the various provisions contained in the NDPS Act as well as in the Code of criminal procedure, even if a new information is obtained during the course of investigation connected with the seizure of contraband article in pursuance of a former information, the officer concerned need not repeat the formalities that contemplated either by S.41 or by S.42 of NDPS Act. Under Section 41(2), it is specifically mentioned about the powers of the officers mentioned therein in the Act, for issuing authorization and also his power to conduct search. Even otherwise, in the present case, since the officer who, received the information, was a Gazetted Officer, as PW12 was working as Circle Inspector of Police, a post of Gazetted rank, by virtue of Section 41(2) of the NDPS Act, he is not bound to reduce into writing the information received by him. In view of S.42, the officer acting u/s.42 or the officer acting u/s.41(2) in the light of Sub S.(3) of S.41, can do whatever steps required especially on the basis of authority given as per S.42(1) Crl.A.No.2074 of 2010 :-12-:
clauses (a) to (d). So, the authority vested with an officer either u/s.41(2) or u/s.42(2) for the entry, seizure and arrest with respect to the contraband article are not confined to the contraband articles covered by the information so received. In the light of the language used in S.41(2) and 42 (2) of the Act, it is crystal clear that while acting on the basis of the information so received and during the course of investigation/enquiry in pursuance of such information, he can seize any contraband article of any description and any quantity in addition to one mentioned in the information already received. In view of S.51 and S.67 of the NDPS Act, during the course of investigation, the officer concerned can seize any contraband article other than what mentioned in the information on the basis of the investigation started. The object behind S.41(2) and S.42 of the NDPS Act, is to ensure the promptness of the action from the side of the officer who received such information and to set the law in motion and to further guarantee against the misuse of the provisions and to prevent false implication of innocent persons. In the present case, as evident from the first seizure, PW12 has complied with the statutory requirement of S.41(2) and 42 of the NDPS Act and the law set into motion and it is during such investigation, and after the arrest of the accused, who divulged the Crl.A.No.2074 of 2010 :-13-:
information about the possession of 30 Kg. Of ganja, and therefore PW12 is not statutorily bound to repeat the proceedings as contemplated either u/s.41 (2) or 42 of the NDPS Act.
14. In the present case, the investigation is undertaken by PW12, the Circle Inspector of Police, on the basis of the information received by him and according to the prosecution, after the seizure of 2.100 Kgms of ganja and the arrest of the appellant based upon the first information received by PW12, when the appellant was questioned, he had divulged Ext.P11 information on the basis of which the second seizure was effected.
15. The learned counsel for the appellant submitted that such a confession cannot be accepted as legal one and against the acceptance of Ext.P11 u/s. 27 of the Evidence Act, the learned counsel raised several objections. The first and foremost contention raised by the learned counsel is to the effect that on the basis of the first seizure, the appellant/accused was arrested at 4.55 p.m on 15.6.2008 and Ext.P11 confession was recorded while the appellant was under arrest and in Police custody. Therefore, the prohibitory clause that contained in S.24, 25 and 26 of the Act are attracted. In support of the above contention, the learned counsel heavily relied upon the decision of the apex court reported in Veera Ibrahim v. The State of Crl.A.No.2074 of 2010 :-14-:
Maharashtra (AIR 1976 SC 1167), Kanhaiyalal v. Union of India (2008 (4) SCC 668) and Raju Premji v. Customs, NER, Shillong Unit (2009 (16) SCC 496). On the other hand, Sri.P.A.Salim, learned Public Prosecutor, on the strength of the decision of the Apex court reported in In re Ramanchandran(AIR 1960 Madras 191), State of Bihar v. Madanlal Agarwalla and Others (AIR 1967 Patna 68) and State of Uttar Pradesh v. Deoman Upadhyaya (AIR 1960 SC 1125) strenuously submitted that S.27 of the Evidence Act is applicable and attracted in the present case irrespective of the fact that whether the disclosure statement of the accused/appellant was recorded before or after the arrest.
16. In the light of the above rival pleadings, the question to be considered is whether there is any legal impediment in accepting the statement made by the appellant/accused, who involved in any of the offence contemplated under the NDPS Act after his arrest under Section 27 of the Evidence Act,1872. In order to have clear understanding of the above question of law, a close scrutiny of certain relevant provisions in the Indian Evidence Act,1872 is absolutely necessary. Section 24 of the Evidence Act reads as follows:-
Crl.A.No.2074 of 2010
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"24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.-- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." (emphasis supplied) Section 25 says as follows:-
"25. Confession to police officer not to be proved.--No confession made to a police officer, shall be proved as against a person accused of any offence."
(emphasis supplied) Section 26 reads as follows:-
"26. Confession by accused while in custody of police not to be proved against him.-- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person." (emphasis supplied) Section 27 reads as follows:-
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession Crl.A.No.2074 of 2010 :-16-:
or not, as relates distinctly to the fact thereby discovered, may be proved." (emphasis supplied) Thus, on a reading of the above sections of the Evidence Act, it can be seen that Section 24 of the Evidence Act deals about the situation when the confession caused by inducement,threat or promise is irrelevant in a criminal proceedings. Similarly, under Section 25 of the Evidence Act, the confession made by a person to a Police Officer, shall not be proved against such person accused of any offence. But, on a reading of Section 26 of the Evidence Act, it can be seen that even if an accused, while in the custody of a Police Officer, makes a confession, the same can be proved as against him if such a confession was made in the immediate presence of the Magistrate. So Sections 24 to 26 of the Act deal with confession. It is now a settled position of law that Section 27 is an exception to Sections 24,25 and 26. On a close reading of Section 27 of the Evidence Act, it can be seen that what made exempted or excepted is an information, whether the same is in the nature of confession or not, on condition that on the basis of such information, if any fact is deposed to as, discovered in consequence of the information received from a person accused of any offence, even if he is in the custody of the Police Officer and the same relates distinctly to the fact thereby discovered can be proved against such accused. On a scrutiny of Crl.A.No.2074 of 2010 :-17-:
the provisions of Sections 24 to 27, it can be seen that nowhere particularly in any of these sections, no distinction is drawn by the legislature with respect to the confession or information, as the case may be made or furnished, before or after the arrest. So the prohibition clause envisaged by Sections 24,25 and 26 is applicable irrespective of the fact whether the accused is arrested or not. Therefore, the exception under Section 27 is applicable and the information or confession saved is irrespective of the fact whether the person furnished or made the same, accused of any offence is arrested or not. According to me, the above observation and findings are justified by precedents, especially, in the light of the decision of the Apex Court reported in State of Uttar Pradesh v. Deoman Upadhayaya (AIR 1960 SC 1125) and the decision of the Patna High Court reported in AIR 1967 Patna 68 and the decision in AIR 1960 Madras 191 (cited supra). In paragraph 7 of the above underlined decision, the Hon'ble Apex Court has held as follows:-
(7) Section 27 of the Indian Evidence Act is one of a group of sections relating to the relevancy of certain forms of admissions made by persons accused of offences.
Sections 24 to 30 of the Act deal with admissibility of confessions i.e. of statements made by a person stating or suggesting that he has committed a crime. By S.24, in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have Crl.A.No.2074 of 2010 :-18-:
been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By S.25, there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under S.24 and complete under S.25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, "accused person" in S.24 and the expression "a person accused of any offence" have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Narayan Swami v. Emperor, 66 Ind App 66: (AIR 1939 PC 47), by the Judicial Committee of the Privy Council, "S.25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation ." The adjectival clause "accused of any offence" is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides "No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against a person accused of any offence." By this section, a confession made by a person who is in custody is declared not provable unless it is made in the immediate presence of a Magistrate. Whereas S.25 prohibits proof of a confession made by a person to a police officer whether or not at the time of making the confession, he was in custody, S.26 prohibits proof of a confession by a person in custody made to any person unless the confession is made in the immediate presence of a Crl.A.No.2074 of 2010 :-19-:
Magistrate. Section 27 which is in the form of a proviso states "Provided that,, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." The expression, "accused of any offence" in S.27, as in S.25 is also descriptive of the person concerned, i.e., against a person who is accused of an offence, S.27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though S.27 is in the form of a proviso to S.26, the two sections do not necessarily deal with evidence of the same character. The ban imposed by S.26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By S.27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered. By S.26,a confession made in the presence of a Magistrate is made provable in its entirety." (emphasis supplied) Again paragraph 18 of the very same judgment, the Apex Court has held as follows:-
"(18) Counsel for the defence contended that in any event Deoman was not at the time when he made the Crl.A.No.2074 of 2010 :-20-:
statement attributed to him, accused of any offence & on that account also apart from the constitutional plea, the statement was not provable. This contention is unsound. As we have already observed, the expression "accused of any offence" is descriptive of the person against whom evidence relating to information alleged to be given by him is made provable by S.27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability." (emphasis supplied) From paragraph 2 of the above judgment, the relevant portion is quoted hereinbelow:-
"..............He was arrested in the afternoon of the 20th near the village Manapur. On June 21, he offered to hand over the gandasa which he said, he had thrown in the village tank, and in the presence of the investigating officer and certain witnesses, he waded into the tank and took out a gandasa, which, on examination by the Serologist, was found to be stained with human blood."
(emphasis supplied) Thus, it can be seen that, there the information led to the recovery was made, after the arrest of the accused. In the light of the above Supreme Court decision, I am of the firm opinion that the exception under Section 27, against the prohibition contemplated under Sections 24,25,26, is applicable and attracted, notwithstanding the fact that the information or confession, recorded from the person mentioned in Section 27, is arrested or not. In this case, apart from the above legal background, the factual input is also in Crl.A.No.2074 of 2010 :-21-:
favour of the prosecution case. Absolutely no confession statement either under Section 67 of the NDPS Act or under the provisions of the Cr.P.C., of the appellant is recorded and therefore, all contentions based upon Sections 24,25,26 and 27 of the Act has no relevance. Therefore, the contention raised against accepting Ext.P11 disclosure statement by the learned counsel for the appellant is liable to be rejected.
17. Another contention raised by the learned counsel for the appellant is that since PW12 being a Police Officer, it is impermissible for the prosecution to act upon Ext.P11 disclosure statement either under Section 27 of the Indian Evidence Act or under Section 67 of the NDPS Act. In support of the above submission, learned counsel placed reliance upon the decision of the Apex Court in Kanhaiyalal v. Union of India [(2008) 4 SCC 668]. It is to be noted that in the above decision, the Apex Court has held that a statement made under Section 67 of the NDPS Act,1985 by a person directed to appear before the officer concerned may be relied upon as a confession statement against such person and conviction can be maintained solely on the basis of such confession. It is also held that since an officer vested with powers of an officer in charge of a police station by virtue of Section 53 of the Act, is not a police officer within the meaning of Crl.A.No.2074 of 2010 :-22-:
Section 25 of the Evidence Act, a statement made under Section 67 of the NDPS Act is not the same as the statement made under Section 161 of Cr.P.C. unless made under threat or coercion. But, according to the learned counsel for the appellant, here PW12 is the officer coming under the category of Gazetted Officer and working as C.I.of Police and therefore, in the light of the above decision, Section 67 cannot be pressed into service. I am unable to accept the above contention. In the decision reported in Raju Premji v. Customs, NER, Shillong Unit [(2009) 16 SCC 496] in paragraph 23, the Apex Court has held that even if confession is made under the NDPS Act, the same may not be hit by S.25 of the Evidence Act, but such a confession should be strictly scrutinised by court as to whether it was made voluntarily or under compulsion, threat or inducement. In this juncture, it is relevant to note that in the present case, Ext.P11 is not a confession statement at all and hence, the same will not come under category of statement contemplated either by Section 67 of the NDPS Act or Section 161 of the Cr.P.C. Therefore, all the contentions raised by the learned counsel based upon Section 67 of the NDPS Act are not sustainable.
18. It is also relevant to note that in view of Section 51 of the NDPS Act, the provisions of the Cr.P.C. shall apply in so far as they are in Crl.A.No.2074 of 2010 :-23-:
consistent with the provisions of the NDPS Act, particularly with respect to the warrant issued and seizures made under the NDPS Act. It is relevant to note that Ext.P11 disclosure statement was made by the appellant while he was in custody in pursuance of the seizure of 2 Kgs. of ganja from his physical possession. It is now well settled that the information under Section 27 of the Evidecne Act is obtained under threat, coercion or duress, the same has no legal sanctity and the recovery consequent to such statement has no legal acceptability. In the present case, if Ext.P11 statement is obtained under custodial compulsion, the same is inadmissible by the operation of salutary principle contained in Article 20(3) of the Constitution of India. The Honourable Apex Court in a recent decision reported in Senior Intelligence Officer v. Jugal Kishore Samra [2011(5) Supreme 297], the Apex Court has considered the scope and the above constitutional safeguards and para 16 of that judgment is relevant which reads as follows:-
"16. At the end of a lengthy debate, the Court proceeded to answer the issues in paragraph 57, which is reproduced below:
"57. We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police Crl.A.No.2074 of 2010 :-24-:
investigations are concerned. The ban on self-
accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read "compelled testimony" as evidence procured not merely by physical threats or violence, but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like-not legal penalty for violation.
So, the legal perils following upon refusal to answer or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes 'compelled testimony', violative of Article 20(3)."
But, in the present case, the appellant/accused has no case that he was subjected to any third degree measures in obtaining Ext.P11 statement or during the custody, he was tortured. The appellant has no case that Ext.P11 statement was obtained under threat, inducement or coercion. Therefore, there is no illegality in accepting Ext.P11 disclosure statement under Section 27 of the Evidence Act. It is also a fact that in pursuance of the disclosure made by the appellant as per Ext.P11 statement, PW12 and party proceeded to the house of the appellant as guided by him and thereafter, on Crl.A.No.2074 of 2010 :-25-:
the basis of Ext.P5 seizure mahazar, 30 Kgs, of ganja were seized.
19. Learned counsel for the appellant vehemently argued that no legal sanctity can be attached to the seizure of ganja effected as per Ext.P5 seizure mahazar. In support of the above contention, learned counsel has pointed out that the prosecution has miserably failed to prove that the ganja seized as per Ext.P5 was in the conscious possession of the appellant. It is further pointed out that in the house, from which the contraband article was allegedly seized, the petitioner alone was not the inmate. It is also pointed out that the house described in Ext.P6 scene mahazar is not owned by the appellant, but the same is in the name of his wife as evidenced by Ext.P18 resident cum ownership certificate issued by the concerned local body.
Therefore, according to the learned counsel, the prosecution has failed to prove the conscious possession of the appellant over the contraband article allegedly recovered as per Ext.P5 mahazar. It is also the submission of the learned counsel that there is no legal evidence to prove the seizure.
20. For a proper appreciation of the above contentions of the learned counsel, it is inevitable to consider the circumstances which led to the seizure of 30 Kgs. of contraband article as per Ext.P5 seizure mahazar. The appellant has no serious dispute regarding the seizure effected by PW12 Crl.A.No.2074 of 2010 :-26-:
from the physical possession of the appellant, wherein 2 Kgs. of ganja involved. The finding of that fact by the trial court is confirmed by this Court as per the previous judgment. That seizure was effected on the basis of the information received by PW12 and the seizure itself shows the correctness of the information received by PW12. It is thereafter when the accused was arrested and questioned, he divulged the information as per Ext.P11 about his possession of 30 Kgs. of ganja. It is on the basis of the above information, as stated by the appellant and guided by him, PW12 and party proceeded to the house of the appellant and recovered such a huge quantity of ganja. When PW12 was examined, he had categorically deposed the procedure adopted by him for the seizure. According to him, it was the appellant, who collected the bunch of key and had unerringly chosen the appropriate key for opening the house and thereafter, it was the appellant, who proceeded to the room, where the 30 Kgs. of ganja was concealed in sack and stored. So the above facts would further show that the appellant was fully conscious about the storing of the ganja seized as per Ext.P5 mahazar. In this juncture, it is relevant to note that the first seizure was effected on 15.6.2008 at about 4.15 p.m. and thereafter, the Police party reached the house of the appellant at about 7 a.m. on 16.6.2008. The Crl.A.No.2074 of 2010 :-27-:
appellant has no case that he was residing somewhere else. It is also beyond dispute that he is residing along with his wife in the house from where the contraband article is seized. Thus, according to me, the prosecution has succeeded in proving that the second seizure was effected from the possession of the appellant. Apart from some mere suggestions, there is no serious cross-examination of PW12 and no case is made out that besides the appellant and his wife, any other person is residing in the said house. According to me, in order to attract the penal liability under Section 20 of the NDPS Act, the prosecution need to prove the possession only. In view of Section 54 of the NDPS Act and on proving the possession of the contraband article by the prosecution, it is for the accused to give a proper account as to how he came into the possession of the same, particularly in view of Section 35 of the NDPS Act. The Apex Court in the decision reported in Megh Singh v. State of Punjab (AIR 2003 SC 3184) has held that the possession in a given case need not be a physical possession, but can be a constructive possession, having power and control over the article and once possession is established, the person, who claims that it was not a conscious possession, has to establish it. In the light of the above decision, it is for the appellant to allege and prove that the contraband article seized, Crl.A.No.2074 of 2010 :-28-:
as per the second seizure was not under his conscious possession. In this juncture, it is relevant to note that as per Ext.P6 scene mahazar, the building is shown as a tiled house and the same is owned by his wife Kamayi as evidenced by Ext.P18. Adjacent to the house in the name of the wife of the accused, there is a thatched shed bearing House No.3/308 and as per Ext.P17, the resident-cum-ownership certificate, the said thatched shed is belonging to the appellant/accused and the same is very adjacent to the house belonging to his wife, which is the residential house of the appellant, from where the 30 Kgs. ganja seized. Therefore according to me, the appellant cannot escape from the criminal liability simply stating that the house is not belonging to himself and the prosecution has failed to prove the conscious possession. It is true that the independent witnesses examined by the prosecution have turned hostile, but that is not a ground to disbelieve the case of the prosecution against the accused. According to me, in the light of the substantive evidence of PW12 and PW1 and PW4 and the contemporaneous documentary evidence, like Ext.P11 disclosure statement, Ext.P5 seizure mahazar, Ext.P4 scene plan, Ext.P6 scene mahazar, Exts.P17 and P18 resident cum ownership certificate of the house belonging to the accused as well as his wife, I am of the view that the prosecution has Crl.A.No.2074 of 2010 :-29-:
succeeded in establishing the seizure of the 30 Kgs. of ganja from his possession.
21. In the light of the above finding and in the light of the finding arrived as per the previous finding of the trial court with respect to the first seizure which is confirmed by this Court as per the previous judgment of this Court, the prosecution has succeeded in establishing its case against the accused beyond reasonable doubt and accordingly, he is found in possession of 32 Kgs. of ganja and thus he had committed the offence punishable under Section 20(b)(ii)(C) of the NDPS Act.
22. The trial court, after the remand of the matter as per the previous judgment of this Court, and as per the impugned judgment, has sentenced the appellant to undergo rigorous imprisonment for ten years and to pay fine of Rs.1 lakh and in default, he is directed to undergo rigorous imprisonment for six months. The trial court has not imposed any new sentence, but reiterated the sentence which is already imposed on the appellant, as per its initial judgment. The sentence awarded by the trial court is the minimum sentence that can be imposed under Section 20(b)(ii)(C) of the NDPS Act. Therefore, no interference is warranted with the sentence as well. Crl.A.No.2074 of 2010
:-30-:
In the result, the appeal is devoid of any merit and accordingly, the same is dismissed, confirming the conviction and sentence imposed against the appellant.
V.K.MOHANAN, Judge.
kp/pm/MBS/