Punjab-Haryana High Court
Pritpal Singh Alias Bitta vs State Of Punjab And Another on 25 November, 2011
Bench: Jasbir Singh, Sabina
CRIMINAL APPEAL NO. 297-DB OF 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: November 25, 2011.
Parties Name
Pritpal Singh alias Bitta
...APPELLANT.
VERSUS
State of Punjab and another
...RESPONDENTS
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
PRESENT: Mr. Gaurav Sharma,
Advocate, for the appellant.
Mr. Rajesh Bhardwaj, Addl. A.G., Punjab,
for respondent No. 1.
Mr. D.D.Sharma, Advocate,
Senior Panel Counsel, Govt. of India,
for respondent No. 2.
Jasbir Singh, J.
JUDGMENT
Vide judgment and order dated January 23, 2007, the appellant was convicted for commission of an offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985,( in short the Act) and was sentenced to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs. 1,00,000/- with a default clause. Hence this CRIMINAL APPEAL NO. 297-DB OF 2007 -2- appeal.
It was allegation against the appellant that on March 9, 2005, he was found in possession of 10 Kgs. of heroin without any licence. Brief facts of the case of the prosecution, as noted by the trial Judge read thus:
"1. The present complaint under Sections 21, 23, 25, 28, 29 and 60 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short the Act) has been instituted by the Intelligence Officer, Directorate of Revenue Intelligence, Amritsar, on the allegations that a specific intelligence report was received to the effect that narcotic drugs are being transported in a Maruti Esteem Car bearing registration No. DL-4CG 8793, which was reduced into writing and sent to the Senior Officers. The said car was accordingly intercepted at about 1500 hours on 9.3.2005 on G.T. Road, near Gurdwara Nihangan between Jandiala Guru and Tangra on Amritsar-Jalandhar Road while it was coming from Amritsar side. The accused was driving the said car and one Neha Sharma was sitting in the Car. The place of interception being not safe and secure for conducting the search/ rummaging of the Car as it was a busy highway with a lot of open country alongside, the accused and Neha Sharma along with the car were brought to the DRI office, M-I/C, Green Avenue, Amritsar. Before conducting the search of the occupants of the Car and that of the Car, two independent witnesses namely, Ranjit Singh and Keshav Dogra were called. The identity of the occupants of the Car was verified and before CRIMINAL APPEAL NO. 297-DB OF 2007 -3- conducting their search, an option under section 50 of the Act was given to them. Both of them were apprised of their legal right to be searched in the presence of a Gazetted Officer or Magistrate. The accused gave in writing in the body of the notice itself that his search and that of the Car may be conducted before the DRI Officer. Neha Sharma also gave in her writing in the body of the notice that her search and that of the Car may be taken by any DRI Officer and her search may be conducted by Ms. Vibha , Inspector of Customs. The accused and Neha Sharma were asked if the drugs were concealed in the baggage and car. Neha Sharma replied that she was not aware if any drugs were concealed in the baggage or the Car. The accused reluctantly disclosed the DRI Officer that he was carrying 10 packets of heroin concealed in the LPG Cylinder lying in the dicky of the Car. The personal search of Neha Sharma was conducted by Ms. Vibha Inspector Customs but nothing incriminating was recovered from her. The personal search of the accused was conducted in the presence of the independent witnesses, but nothing incriminating was recovered. One driving licence was found during the course of his personal search. From the search/ rummaging of the Car, its registration certificate, cash receipt, Forms No. 29 and 30 and challan Form No. 39 were recovered from the dash board of the Car. One rexin bag of black colour was also recovered from the Car. One LPG Cylinder was found from the dicky of the Car, CRIMINAL APPEAL NO. 297-DB OF 2007 -4- which on thorough examination, revealed that its lower ring was fitted in such a manner that the same could be opened by unscrewing / rotating it. The lower ring on which the LPG Cylinder rested was opened by rotating the same and it was found to be containing some packets of maroon colour. 10 packets were marked as A, B, C to J. Each packet was opened one by one and it was found to be containing white coloured power mixed with granules of same colour in two transparent polythene packing/ bags. Outer polythene bag was not sealed while the inner polythene bag was sealed so that the powder should not get out of the packet. A small pinch of powder and granules from each packet was tested with drug testing kit, which indicated the presence of heroin. Each packet was found to contain one kg. of heroin and the total weight was 10 kgs. Net. Two representative samples of 5 grams each were drawn from each packet marked A to J. Each sample parcel and each packet containing the remaining heroin were separately sealed with the seal bearing No. 3 of the Customs Commissionerate, Amritsar. The LPG Cylinder was wrapped with a cotton cloth and sealed with the same seal in the same manner. The car was also seized by the officials of the DRI. Site plan depicting the place of interception was prepared. All the articles were taken into possession vide Panchnama which was signed by the witnesses."CRIMINAL APPEAL NO. 297-DB OF 2007 -5-
It has come on record that statement of the appellant - accused was recorded under Section 67 of the Act on March 9, 2005, in which he admitted the factum of recovery of 10 Kilograms of heroin from him. It is on record that in a car, out of which alleged contraband was recovered, one Neha Sharma was also traveling. However, after investigation, she was found innocent and the complaint was not filed against her. It is also on record that the sample of the recovered contraband was sent for chemical examination, as per report, the substance was found as diacetylmorphine (heroin). It has also come on record that the car in question was purchased by the appellant - accused from Ajay Kumar Sareen on September 5, 2004.
On presentation of the complaint, the enquiry, as per provisions of Section 202 Cr.P.C. was dispensed with. Copies of the complaint and other documents were supplied to the appellant - accused. He was charge-sheeted, to which he pleaded not guilty and claimed trial. The prosecution produced five witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the appellant - accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. He also opted to file a written-statement. However, the same was not filed. The trial Judge, on appraisal of evidence, found the appellant - accused guilty, convicted and sentenced him as found mentioned in the earlier part of this order.
Counsel for the appellant has vehemently contended that there is no independent corroboration to the case of the prosecution. Two witnesses, namely, Ranjit Singh and Keshav Dogra were joined in the CRIMINAL APPEAL NO. 297-DB OF 2007 -6- investigation. However, they were not produced in the Court to support case of the prosecution. He has argued that at the time of recovery, option of search before a gazetted officer or a Magistrate was not given to the appellant - accused. As such there was a clear violation of the provisions of Section 50 of the Act, which vitiates case of the prosecution. As per the accusation, the appellant - accused was intercepted along with one Neha Sharma in a car near JandialaGuru, from where he was taken to the Directorate of Intelligence (in short DRI) office, situated in Green Avenue, Amritsar, by Shri Pushpdeep, Intelligence Officer, who was not produced in the witness - box. It was further argued that alleged confessional statement made by the appellant under Section 67 of the Act on March 9, 2005, cannot be made basis for his conviction. The said statement was made under duress and it was not voluntary. He prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellant - accused be acquitted of the charge framed against him.
Prayer made has been opposed by the State counsel, who has put in appearance on behalf of respondent No. 2. By making reference to a document Ex. P3, it was stated that there is a complete compliance to the provisions of Section 50 of the Act. Option for search was given to the appellant - accused. However, he opted to be searched by officers of the DRI. Seal after use was sent to the competent authority. It was further stated that the statement made by the appellant - accused Ex. P17 was voluntary and it was made before he was arrested and the contraband was recovered. He prayed that the appeal having no substance be dismissed.
After hearing counsel for the parties and going through the CRIMINAL APPEAL NO. 297-DB OF 2007 -7- paper book, we do not agree with the contentions raised by counsel for the appellant- accused.
In this case, 10 Kgs. of heroin was recovered from the appellant
- accused. It has come on record that secret information Ex. P1 was received by Sanjeev Prabhakar, Intelligence Officer (PW1), who reduced the same into writing and it was put up before the Deputy Director, DRI. On March 9, 2005, at about 9 AM, a check barrier was put up on Amritsar - Jalandhar road between JandialaGuru and Tangra. Maruti Esteem car bearing registration No. DL4CG 8793 was intercepted at about 3 PM. Appellant accused and one Neha Sharma were the occupants. The place of interception was not found safe for further proceedings. The occupants along with car were brought to the office of DRI at Amritsar. The appellant
- accused and Neha Sharma were questioned by Rajesh Kumar, Intelligence Officer, DRI (PW2). Vide notice Ex. P3, option was given to both the accused to get the search conducted before a Gazetted Officer or a Magistrate. On the said notice, it was written by them that they do not want search of their car in the presence of a gazetted officer or a Magistrate and that the search could be conducted by any officer of DRI. During search, nothing incriminating was found from the person of the appellant - accused and Neha Sharma. However, when car was searched, the contraband was found concealed in a gas cylinder kept in the dicky of the car. Surface of the gas cylinder was opened by unscrewing it. The contraband was found in ten packets of 1 Kg. each. Two samples weighing 5 grams each were drawn. Bulk of the contraband was separately sealed in a packet. On analysis, the substance was found to contain element of diacetylmorphine CRIMINAL APPEAL NO. 297-DB OF 2007 -8- (heroin).
Before arrest of the appellant - accused in this case, a notice was served upon him under Section 67 of the Act. In response thereto, he got recorded his statement Ex. P17, wherein he admitted that he was transporting the contraband at the instance of one Lakhwinder Singh and the substance was to be delivered at Chandigarh. In his statement, it was also admitted by the appellant that option of search under Section 50 of the Act was given to him. The appellant has also admitted recovery of contraband from LPG cylinder, which was kept in the dicky of his car. It is apparent from the record that the appellant - accused was arrested thereafter vide arrest memo Ex. P-19. On March 10, 2005, the recovered contraband and the appellant - accused were produced before the Chief Judicial Magistrate at Amritsar. The case property was seen by the said officer. It was resealed under signatures of the officer mentioned above, before whom it was not said by the appellant - accused that the recovery was false or that his statement was recorded under duress.
Case of the prosecution has been supported by PW1 and PW2, namely, Sanjeev Prabhakar and Rajesh Kumar, Intelligence Officers, DRI. The recovery was made in the presence of PW3 V.K.Shukla, Assistant Commissioner( Customs), who has also supported case of the prosecution. Sarbjit Singh, Inspector, (PW4), who was Incharge of Custom Malkhana at Amritsar, has stated that during the relevant period, the case property remained in his safe custody and it was not tampered with. The safe delivery of samples to the Forensic Science Laboratory was proved by PW5 Sukhdev Singh. Merely because independent witnesses Ranjit Singh and CRIMINAL APPEAL NO. 297-DB OF 2007 -9- Keshav Dogra have not been produced in Court, it will not make case of the prosecution doubtful. Above fact only put the Court at caution to scrutinize testimony of the official witnesses in a careful manner. We have gone through the statements made by the above witnesses and are satisfied that their testimony inspires confidence. Despite lengthy cross-examination, the defence has failed to elicit anything favourable to the appellant - accused.
Contention of counsel for the appellant that there was non- compliance with the provisions of Section 50 of the Act is ill founded. As has been discussed earlier, notice under Section 50 of the Act was served upon the appellant - accused. Option for search was given to him. However, he opted the search to be conducted by any officer of DRI. Otherwise also, in the present case, as the recovery has been effected from a car, there was no necessity to serve any notice under Section 50 of the Act upon the appellant - accused before conducting the search. PW1 has categorically stated that from the place of interception i.e. the check barrier, the appellant - accused and Neha Sharma along with their car were brought to the office of the DRI at Green Avenue, Amritsar. PW2 Rajesh Kumar, Intelligence Officer, DRI, has given vivid detail as to how investigation was conducted. He has specifically stated that the seal after use was handed over to the competent authority. This witness has also stated that before recording the statement of the appellant - accused, under Section 67 of the Act, the effect of the said provision was made known to him and only thereafter he voluntarily made his statement Ex. P17. The recovery was effected in the presence of V.K. Khosla , Assistant Commissioner, Customs, who has supported the same in Court. The defence has failed to shatter CRIMINAL APPEAL NO. 297-DB OF 2007 -10- credibility of this witness. Sequence of events regarding safe custody in Malkhana and safe delivery to the Forensic Science Laboratory have been stated by Sarbjit Singh, Inspector, Customs, (PW4) and Constable Sukhdev Singh (PW5). The independent witnesses were not examined, as having been won over by the appellant - accused. The very fact that Neha Sharma was not made an accused shows that the investigation was proper and fair. The trial Court by placing reliance upon the ratio of the judgments in case of Darshan Kumar v. State of Punjab, 1999 (1) Recent Criminal Reports 269, and Harpreet Singh v. State of Punjab, 2005(2) RCR 127 (P&H) (D.B.) and Karam Singh v. State (Delhi Administration), AIR 2003 Supreme Court 1311,has rightly said that trust worthy statements made by the official witnesses can be relied upon to convict an accused.
Further contention of counsel for the appellant that confessional statement made under Section 67 of the Act cannot be used against the appellant - accused, is also liable to be rejected. Even without taking any help from the said statement, case of the prosecution is proved against the appellant - accused as has been discussed in earlier part of this judgment. Be that as it may, it is stated by PW2 that before recording statement of the appellant - accused, he was made aware regarding the above said provision. No pressure was exerted upon him to make any disclosure and the statement made was voluntary.
It is on record that the said statement was not ever retracted. The appellant - accused was produced before the Chief Judicial Magistrate at Amritsar on March 10, 2005. He made no effort to contradict his statement made before the police officials. Even in Court nothing was CRIMINAL APPEAL NO. 297-DB OF 2007 -11- brought on record to show that his statement Ex. P17 was extracted under duress and pressure. It has also come on record that the appellant - accused was not under arrest when he made the above statement. If that is so, the reliance of counsel for the appellant - accused on the ratio of judgment of the Hon'ble Supreme Court in Noor Aga v. State of Punjab and another, 2008(3) R.C.R. (Criminal) 633, is of no help to the appellant - accused. As per facts of that case, when statement was made by the accused therein under Section 108 of the Customs Act, 1962, he was under arrest and furthermore it was found as a matter of fact that the statement made was not voluntary.
Their lordships of the Supreme Court in Francis Stanly alias Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram, (2006) 13 Supreme Court Cases 210, when analysing whether statement made by an accused was voluntary or not has observed as under:
"10. We make it clear that we are not of the opinion that the evidence of the accomplice can never be relied upon, since such evidence is admissible under Section 133 of the Evidence Act. However, Section 133 has to be read along with Section 114(b) of the Evidence Act, as reading them together the law is well settled that the rule of prudence requires that the evidence of an accomplice should ordinary be corroborated by some other evidence vide Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80.
11. Learned counsel for the respondent relied upon a decision CRIMINAL APPEAL NO. 297-DB OF 2007 -12- of this Court in M. Prabhulal v. Asstt. Director, Directorate of Revenue Intelligence, (2003)8 SCC 449), wherein it has been held that if the confessional statement is found to be voluntary and free from pressure, it can be accepted. This is no doubt true, but it all depends on the facts and circumstances of each case and no hard-and-fast rule can be laid down in this connection whether a particular alleged confessional statement should be accepted."
It was further opined that it depends upon facts of each case whether confessional statement can be relied upon against an accused or not.
In the case of Kanhaiyalal v. Union of India, 2008(1) R.C.R. (Criminal) 610, the Hon'ble Supreme Court was dealing with a question as to whether conviction of an accused can be based solely upon statement made under Section 67 of the Act or not. After discussing facts of that case and law on the subject, it was observed as under:
"36. A parallel may be drawn between the provisions of Section 67 of the NDPS Act and Sections 107 and 108 of the Customs Act and to a large extent Section 32 of the Prevention of Terrorism Act, 2002 and Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. These are all special Acts meant to deal with special situations and circumstances. While the provisions of the Prevention of Terrorism Act, 2002, and TADA Act, 1987, are much more CRIMINAL APPEAL NO. 297-DB OF 2007 -13- stringent and excludes from its purview the provisions of Sections 24 to 27 of the Evidence Act with regard to confession made before a police officer, the provisions relating to statements made during inquiry under the Customs Act and under the NDPS Act are less stringent and continues to attract the provisions of the Evidence Act. In the case of both the latter enactments, initially an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry as to whether there has been any contravention of the provisions of the Act or any Rule or Order made thereunder. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20 (3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play. Of course, this Court has also held in Pon Adithan's case (supra) that even if a person is placed under arrest and thereafter makes a statement CRIMINAL APPEAL NO. 297-DB OF 2007 -14- which seeks to incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence.
37. The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava's case (supra). The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the Court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence. In addition to the above, in the case of Raj Kumar Karwal v. Union of India and others, 1990(1) RCR (Criminal) 719: (1990) 2 SCC 409, this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an Officer-in-Charge of a police station under Section 53 of the NDPS Act, 1985, are not police officers within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power CRIMINAL APPEAL NO. 297-DB OF 2007 -15- conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view.
38. Considering the provisions of Section 67 of the N.D.P.S. Act and the views expressed by this Court in Raj Kumar Karwals case (supra), with which we agree, that an officer vested with the powers of an Officer-in-Charge of a Police Station under Section 53 of the above Act is not a Police Officer within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the N.D.P.S. Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the N.D.P.S. Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act."
The matter again came up for consideration before the Hon'ble Supreme Court in the case of Union of India v. Bal Mukund and others, (2009) 12 Supreme Court Cases 161, in that case, the Supreme Court was dealing with a similar proposition. The ratio of the judgment in Noor Aga's case (supra) was also considered and it was opined that the facts and circumstances of each case have to be seen. If it comes out that the statement made was not voluntary, it cannot be made basis for conviction of an accused.
CRIMINAL APPEAL NO. 297-DB OF 2007 -16-
The controversy again came up for consideration before the Supreme Court in Raju Premji v. Customs, Ner, Shillong Unit, (2009) 16 SCC 496. The Hon'ble Supreme Court considered the application of provisions of Section 67 of the Act and observed as under:
19. The application of the provisions of Section 67 of the Act is required to be considered in the aforementioned factual backdrop. It reads as under :-
" 67 - Power to call for information, etc.-Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,--
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(c) examine any person acquainted with the facts and circumstances of the case."
An empowered officer, therefore, is entitled to examine any person acquainted with the facts and circumstances of the case, inter alia during the course of any enquiry in connection with the contravention of any provision of the Act. As the term 'enquiry' is not defined under the NDPS Act, its meaning assigned in Section 2(g) of the Code of Criminal Procedure as CRIMINAL APPEAL NO. 297-DB OF 2007 -17- also in an etymological sense and the manner may be held to be applicable.
20. From the very beginning concededly the appellants were in the police custody. They were put to interrogation by the police officers. They were not free persons. They were under orders of restraint and thus would be in the custody of the police officers. Any statement made by them while in custody of a police officer would be inadmissible in evidence in terms of Section 26 of the Evidence Act, 1872, which reads as under :-
"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.
Explanation - In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure,1882 (10 of 1882)."
21. The customs officer as per the Notification issued by the Central Government was an officer incharge of the police station. All powers available to an officer incharge of a police station, therefore, were available to him. One of the attributes of the power of an officer incharge is a power to investigate into commission of cognizable offence. He can also file a CRIMINAL APPEAL NO. 297-DB OF 2007 -18- charge sheet.
22. A constitution Bench of this Court in State of Punjab v. Baldev Singh, [(1999) 6 SCC 172 ], held as under(SCC p. 199, para 28) :-
"28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. 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. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a gazetted officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve a dual purpose -- to protect a person against false accusation and frivolous charges as also to lend creditability to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank CRIMINAL APPEAL NO. 297-DB OF 2007 -19- itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted."
23. We would, for this purpose, assume that such confessions are not hit by Section 25 of the Evidence Act, 1872 but even then they must receive strict scrutiny. This Court in Kanhaiyalal v. Union of India, [(2008) 4 SCC 668], upon taking into consideration number of decisions, held as under (SCC p.681, para 43) :-
"43. The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava case. The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been CRIMINAL APPEAL NO. 297-DB OF 2007 -20- made an accused in connection with the alleged offence."
24. Whether a confessional statement is voluntary and free from any pressure must be judged from the facts and circumstances of each case. This Court in Mohtesham Mohd. Ismail v. Enforcement Directorate, [(2007) 8 SCC 254 ], has held as under(SCC p.263, para 20) :-
20. We may, however, notice that recently in Francis Stanly v.
Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram this Court has emphasised that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closer scrutiny. It is furthermore now well settled that the court must seek corroboration of the purported confession from independent sources."
25. In Noor Aga v. State of Punjab and another, [2008 (9) SCALE 681], this Court held(SCC p. 457 para 74):-
"74. Section 25 of the Evidence Act was enacted in the words of Mehmood J. in Queen Empress v. Babulal [ ILR (1884) 6 All. 509 ] to put a stop the extortion of confession, by taking away from the police officers as the advantage of providing such extorted confession during the trial of accused persons. It was, therefore, enacted to subserve a high purpose."
26. In any event if they were in custody of the police officers as also the customs officers, although they were not accused in strict sense of the term, any confession made by them would CRIMINAL APPEAL NO. 297-DB OF 2007 -21- not be admissible in terms of Section 26 of the Evidence Act, 1872."
By taking note of a fact that the statement made in that case was not voluntary and it was also retracted after four days, reliance was not placed upon the said statement.
However, in the present case, position is altogether different. As has been discussed earlier, there was an opportunity with the appellant - accused to retract his statement when he was produced before the Chief Judicial Magistrate at Amritsar on March 10, 2005, but he did not do so. When his statement under Section 313 Cr.P.C., was recorded, he opted that he would file a written-statement, which was not filed lateron. Even during trial, no attempt was made to withdraw his confessional statement. His statement was recorded before he was put under arrest. As per statement made by PW2 before recording the statement, he was made aware of the provisions of Section 67 of the Act. There is nothing on record to show that the statement made by the appellant was not voluntary. In such a situation, his statement can be relied upon to convict him.
No case is made out for interference. Dismissed.
( Jasbir Singh ) Judge ( Sabina) Judge November 25, 2011 DKC