# Aashu Pandit @ Aashu Bajpai @ Aash Narayan Sharma v. Union of India

- **Citation:** Criminal Appeal No. 1197 of 2013
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-17
- **Case number:** Criminal Appeal No. 1197 of 2013
- **Bench:** Anant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aashu-pandit-aashu-bajpai-aash-narayan-sharma-v-union-of-india-46423
- **Pages:** 14

## Headnote

A. Criminal Law-NDPS Act- Section 67-
Except the statement of the co-accused
there is no other material on record
against
the
appellant
to
show
his
complicity in the crime -Statement of coaccused persons recorded under Section
67 NDPS Act cannot be relied upon as the
appellant
was
not
afforded
any
opportunity of cross examination to these
two co-accused persons

Conviction of an accused is unsustainable solely
upon the confession of the co-accused recorded
under section 67 of the NDPS Act and without
affording the opportunity of cross-examining
those co-accused.(Para 25,26)

Criminal Appeal allowed (E-3)

List of case cited:-

## Text

_Characters 0–39,901 of 46,863. This is a partial read: ask again with offset=39901 for what follows._

436 INDIAN LAW REPORTS ALLAHABAD SERIES
rigorous imprisonment and fifty thousand
rupees fine each and in default, two years
additional
imprisonment.
Out
of
the
amount of fine so deposited, 80% is
directed to be paid to the informant/ heir of
deceased persons.

141. Accused-appellants Achchhey
Lal and Mahendra Singh are directed to
surrender before the learned trial court
forthwith where from they will be sent to
jail to undergo the sentence.

142.
Lower
court
record
be
transmitted back to the court below with a
copy of this judgement to the court below
for information and compliance.
----------
(2020)03-05ILR A436
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.03.2020

BEFORE
THE HON'BLE ANANT KUMAR, J.

Criminal Appeal No. 1197 of 2013

Aashu Pandit @ Aashu Bajpai @ Aash
Narayan Sharma ...Appellant
Versus
Union of India ...Respondent

Counsel for the Appellant:
Anil Kumar Pandey, A.P. Mishra, Ayodhya
Prasad Mishra, Manish Bajpai, Manish
Tiwari

Counsel for the Respondent:
I.B. Singh, Digvijay Nath Singh, Dipak Seth

A. Criminal Law-NDPS Act- Section 67-
Except the statement of the co-accused
there is no other material on record
against
the
appellant
to
show
his
complicity in the crime -Statement of coaccused persons recorded under Section
67 NDPS Act cannot be relied upon as the
appellant
was
not
afforded
any
opportunity of cross examination to these
two co-accused persons

Conviction of an accused is unsustainable solely
upon the confession of the co-accused recorded
under section 67 of the NDPS Act and without
affording the opportunity of cross-examining
those co-accused.(Para 25,26)

Criminal Appeal allowed (E-3)

List of case cited:-

1. Surinder Kumar Khanna Vs. Intelligence
Officer, Dir. of Rev. Intelligence. 2018 (3) JIC
820 (SC) (relied)

2. Kashmira Singh Vs. St. of M.P, (1952) SCR
526

3. Bhuboni Sahu Vs. The King, (1949) 76 Indian
Appeal 147 at 155

4. Hari Charan Kurmi & Jogia Hajam Vs. St. of
Bih. (1964) 6 SCR 623 at 631-633

5. Mohammed Farsrin Vs. State, (2019) 3 SCC
(Cri) 684 : (2019) 8 SCC 811

6. Ram Singh Vs. Central Bureau of Narcotics,
(2011) 11 SCC 347

7. Kanhaiyalal Vs. U.O.I., 2008 (4) SCC 668

8. Madan Lal & anr. Vs. St. of H.P., (2003) 7
SCC 465

(Delivered by Hon'ble Anant Kumar, J.)

1. This criminal appeal under Section
374 (2) of Cr.P.C. has been filed against the
judgment and order dated 12.07.2013,
passed by the learned Additional District &
Sessions Judge, Court No.8, Lucknow in
Criminal Case No. 281A of 2006 (Union of
India Vs. Aashu Pandit @ Aashu Bajpai @
Aash Narayan Sharma) by which the
appellant has been convicted for the
offence under Section 8(C)/20(B)(II) of
3-5 All. Aashu Pandit @ Aashu Bajpai @ Aash Narayan Sharma Vs. Union of India
437
NDPS Act, 1985 and sentenced to undergo
14 Years' R.I. with a fine of Rs.2.00 Lakhs,
with default stipulation.

2. Brief facts relevant for disposal of
the present criminal appeal are that on
behalf of Union of India through Radha
Raman
Singh,
Investigating
Officer,
Directorate
of
Revenue
Intelligence,
Lucknow Regional Unit, 3/71 Vivek
Khand, Gomti Nagar, Lucknow had filed a
written complaint before the Court of
Sessions Judge, Lucknow under Section
8C/20(b) (ii) (C)/29/25 of of NDPS Act,
1985 with the assertion that complainant
was
an
intelligence
officer
in
the
Directorate of Revenue Intelligence, posted
at Regional Unit, Lucknow and was
competent to file this complaint. On the
basis of a specific intelligence that Hashish
(Charas) is being transported from Nepal
by Truck bearing Registration No.UP78/AT
3680 the Deputy Director, Directorate of
Revenue Intelligence, Lucknow had sent a
team with the direction to intercept the said
truck, contraband goods and accused
persons. As per the intelligence, it was
informed that the said Charas was kept in
secret cavity in the back of the driver's
cabin of the truck. On getting this
information two public witnesses Shri
Amrajeet and Shri Rakesh Sharma were
called by the DRI officials at Capt. Manoj
Pandey Chauraha near Gomti Nagar Police
Station,
Lucknow
at
4.45 A.M.
on
28.05.2006. They were told about the
information
and
were
requested
to
accompany the team to witness the
proposed action of interception, search of
the truck and recovery of the contraband to
which both witnesses had agreed and they
accompanied the raiding team. The raiding
party along with the public witnesses
proceeded towards Gosainganj, Lucknow
and waited for the said truck near
Gosainganj Tiraha, Kanpur bypass at
Gosainganj. At about 6.00 A.M. on
28.05.2006 the said truck No. UP87-AT
3680 was seen coming from Haidergarh. It
was signalled to stop by the officers.

3. When the said truck stopped the
DRI officials introduced themselves to the
driver and cleaner and told the purpose of
interception of the said truck. It was
disclosed to them that search would be
done as per requirement of NDPS Act,
1985. On the spot the driver who was
driving the truck disclosed his name and
address as opposite party no.1 Rajesh
Kumar Mishra, S/o late Shri Arjun Mishra,
R/o Village Ganeshpur, P.O.- Dhhakhwa
Bazar, Police Station Sikriganj, District
Gorakhpur and the cleaner as Shri Raju
Dube, S/o Shri Rajesh Dube, R/o Village
Rooppur, Post office, Police Station and
District Kannauj (truck Khalasi).

4. At first the driver and the Khalasi
were hesitant but later on they disclosed
that Charas was kept in the secret cavity
made on the back of the driver's cabin. The
said driver and Khalasi were given a right
to be searched themselves as well as the
truck before the nearest Magistrate or the
Gazetted Officer in compliance of Section
50 of NDPS Act, 1985. Both the persons
consented in writing before the intercepting
party. For safety and security and on the
consent
of
the
driver
and
khalasi
intercepting team took the truck along with
both the public witnesses to DRI office at
2/31,
Vishal
Khand,
Gomti
Nagar,
Lucknow and the search of the truck was
made in the presence of the intercepting
party and witnesses and 720 rectangular
shaped bars of Charas (each bar of 250
gms.) were recovered at the instance of
driver and khalasi from the secret cavity
specifically fabricated on the back of the
438 INDIAN LAW REPORTS ALLAHABAD SERIES
driver's cabin, which on weighing was
found to be 180 Kgs. and after mixing the
recoveries,
four
mixed
samples
of
approximately 25 gms each were obtained
from the recovered Charas for testing
purpose. The four respective samples were
sealed and sent for chemical examination
and the remaining Charas was sealed in 09
packets, duly signed by the accused, public
witnesses
and
the
member
of
the
intercepting party.

5. Statement of accused namely Raju
Dubey was written on the dictation of the
accused before Shri Atul Kumar Srivastava,
Intelligence
Officer,
DRI,
Lucknow
Regional Unit, Lucknow and the statement
of accused Rajesh Kumar Mishra, Driver
was written himself before Shri Ravindra
Kumar Tiwari, Intelligence Officer, DRI,
Lucknow Regional Unit, Lucknow.

6. Shri Rajesh Kumar Mishra,
driver,
in
his
statement
dated
28.05.2006
accepted
the
crime
mentioned
in
the
Panchayat
Nama/recovery
memo
dated
28.05.2006. He also revealed that he
came in contact of present appellant at a
Dhaba in Nankari (Kanpur) for about
one month ago. On the first meeting
appellant revealed that he had a truck
which contained secret cavity and asked
me to drive said truck which contains
illegal goods in the secret cavity for
which he was to be paid Rs.7000/-. On
27.05.2006 present appellant called
Rajesh Mishra at Dhaba situated at Basi
(District Sidharth Nagar) near petrol
pump. On the said place appellant met
Rajesh Kumar Mishra and handed over
him the said truck and introduced him
to Raju Dubey (Khalasi) at the said
truck. Appellant
revealed
that
the
Charas was kept in the secret cavity as
stated above. They were directed to
drive the said truck to Kanpur where the
appellant shall meet them and would
instruct them regarding further plan.

7. Khalasi also gave almost similar
statement on 28.05.2006 and stated that
said Rajesh Mishra and Raju Dubey
reached Basi on 27.05.2006 in the
morning
where
the
appellant
was
present with another driver Pappu. Ashu
Pandit (present appellant) along with
other driver headed to Nepal with the
said truck and came back at Basi in the
evening of that day after loading Charas
in the secret cavity and handed over the
truck to the opposite party no.1 & 2 and
present appellant instructed them to
drive the said truck up to Nankari where
he would contact them again. But
during the said transaction the truck
was intercepted, as stated above.

8. During the course of investigation
residence of the present appellant was
searched but nothing incriminating was
recovered from his residence. Various
summons were issued to him but he did not
appear before the Court and he was not
found at the given address.

9. After filing of the complaint since
whereabouts of the present appellant was
not known the appellant was declared
absconder by the trial court vide its order
dated 18.02.2008 and the trial of other
accused persons Rajesh Kumar Mishra and
Raju Dubey proceeded. It is informed that
in a separate trial they have already been
convicted by the trial court. However, from
the perusal of the record of this case which
proceeded separately it is evident that later
on it was revealed that present appellant is
languishing in jail in Kanpur in some other
case. So, the accused was summoned
3-5 All. Aashu Pandit @ Aashu Bajpai @ Aash Narayan Sharma Vs. Union of India
439
through B warrant from Kanpur jail and
trial of the present appellant separately
proceeded. During the trial the appellant
denied all the allegations made against him
in the complaint and he stated that he had
no concern or relation with the opposite
parties Nos. 1 & 2 Rajesh Kumar Mishra
and Raju Dubey. He never met them and he
even stated that the said truck UP 78 AT
3680 also does not belong to him. During
the course of investigation it was found that
the said truck was registered in the name of
one Shri Amit Kumar, S/o Hari Narain,
1/17 Barsaitpur, Kalyanpur, Kanpur. When
the summons were issued in the name of
the said Amit Kumar on 27.06.2006 said
summons were returned back with the
endorsement that on the said address he
was not found. Again Investigating Officer
contacted previous owner of the truck Vijay
Narain Sharma who had sold the said truck
to Amit Kumar. Shri Vijay Narain Sharma
disclosed that he came in contact with Amit
through a broker at RTO officer when in
the RTO office said broker in the name of
Pandey was contacted no such person was
found. As per market value the 180 Kg.
Was found value of Rs.54.00 Lakhs and the
value of the truck was Rs.4.00 Lakhs.

10. On behalf of prosecution, four
witnesses PW 1 Ravindra Kumar Tiwari,
PW 2 Atul Kumar Srivastava, PW 3 Rajesh
Khanna, PW 4 Radha Raman Singh were
examined and to prove the guilt of the
appellant Exhibits Ka 1 to Ka 26 were
produced.

11.

After
completion
of
the
prosecution witnesses statement of accused
was recorded under Section 313 Cr.P.C.
wherein he was referred to the evidence
recorded against him during the trial to
which he denied and stated that he is
innocent. He has got no concern either with
the said truck or with the other two accused
named above. No recovery has been taken
place from his possession, nor from his
house any incriminating material has been
recovered. He has been falsely implicated
in this case. Accused was given a chance to
adduce in his defence but no such evidence
has been given.

12. After completion of the evidence
from both the sides, the trial court heard the
parties and the appellant was convicted as
stated above. Hence this appeal.

13. I have heard learned counsel for
the appellant as well as learned counsel for
Union of India (Directorate of Revenue
Intelligence).

14. The argument of learned counsel
for the appellant is that according to the
prosecution case itself it is an admitted case
that the appellant was not arrested on the
spot and there is no confessional statement
or other statement of the appellant either
before the arrest or after his arrest before
any authority recorded under Section 67 of
NDPS Act. Prosecution Witness PW 4 has
also admitted in his deposition before the
trial court that present appellant has been
made accused merely on the basis of
confessional
statement
of
co-accused
persons Rajesh Kumar Mishra and Raju
Dubey. Prosecution in effort to prove either
exclusive possession or the contraband
article nor the prosecution could prove
even the conscious possession of the
appellant regarding the truck or the
contraband contained therein through any
direct or indirect evidence beyond any
reasonable doubt. The trial court has
wrongly passed the conviction order
against the appellant without any evidence
or material on record against the appellant.
The prosecution also could not prove the
440 INDIAN LAW REPORTS ALLAHABAD SERIES
link
evidence
either
regarding
the
ownership of the truck in question or the
ownership of the recovered contraband
article against the appellant either during
investigation or during trial. It is also stated
that after recovery dated 28.05.2006 the
appellant's house was also searched but no
incriminating article was found from his
house. The mode and manner of recording
statement of arrested co-accused persons
namely Rajesh Kumar Mishra and Raju
Dubey under Section 67 of NDPS Act
clearly indicates that both were recorded
after taking them into custody by DRI
officials. Therefore the same is also hit by
Article 20 (3) of the Constitution of India
and such statement is neither admissible
against the appellant, nor it may be read
against any other person.

15. It is also argued that it is a settled
proposition of law that the confessional
statement of any other accused persons
cannot be made basis and foundation for
launching criminal prosecution against any
person and also would not be sufficient for
awarding conviction until and unless the
same
is
not
corroborated
by
any
independent evidence and material whereas
in the present case, there is no connecting
evidence in commission of crime against
the appellant either collected by the
Investigating Officer during investigation
or produced during trial.

16. To substantiate the argument,
learned counsel for the appellant has placed
reliance upon a case law 2018 (3) JIC 820
(SC) : Surinder Kumar Khanna Vs.
Intelligence
Officer,
Directorate
of
Revenue Intelligence. The brief facts of the
said case are similar to the present case and
according to the case of Surinder Kumar
Khanna (supra) on a specific information
that narcotic drugs were going to be
transported in a truck No. PB 02 AJ 7288,
the officers of the Directorate of Revenue
Intelligence (for short "DRI") laid picket at
a toll barrier and when said Indica Car of
white color was intercepted, in the said car
two persons, Raj Kumar @ Raju and one
Surinder Pal Singh were found. The vehicle
was being driven by one Raj Kumar @
Raju whereas Surinder Pal Singh was
sitting next to him. When search of the
vehicle was made, four packets wrapped
with yellowish adhesive tapes were found
concealed in the door of Dickey of the car.
The gross weight of those four packets was
4.300 Kg. Those four packets were taken
into
possession.
Two
representative
samples of 5 Gms. each were taken out as
per rules. Statements of both the suspects
were recorded. From their statements, it
transpired that four packets of heroin had
been taken from one Mr. Goldy and those
bags were to be delivered to a person of
African origin near PGI Chandigarh. A
complaint under the relevant sections of
NDPS Act was lodged against said Raj
Kumar @ Raju and Surinder Pal Singh.
During investigation involvement of the
appellant Surinder Kumar Khanna was said
to have been made out. After the appellant
was arrested, a supplementary complaint
was presented against him and the matter
was taken up with the main complaint. The
trial court convicted the appellant along
with other two accused persons Surinder
Kumar Khanna, Raj Kumar @ Raju and
Surinder Pal Singh. When the matter came
up before the Hon'ble High Court in appeal,
the High Court took a view that :-

"5. As regards the appellant, it
was observed by the High Court that he
was specifically named by co-accused Raj
Kumar @ Raju and Surinder Pal Singh in
their
statements.
Apart
from
such
statements nothing was produced on record
3-5 All. Aashu Pandit @ Aashu Bajpai @ Aash Narayan Sharma Vs. Union of India
441
to indicate the involvement of the appellant.
The High Court however found that the
case against the appellant was made out. It
was observed:

"Offence of abetment under
Section 29 of NDPS Act stood established
against accused Surinder Kumar Khanna,
showing that he was involved in drug
trafficking. He was specifically named by
accused Raj Kumar @ Raju and Surinder
Pal Singh in their statements. Such
statements of accused Raj Kumar @ Raju
and Surinder Pal Singh recorded under
Section 67 of the NDPS Act are
admissible in evidence and are not hit by
Section 25 of the Evidence Act because
the officers of DRI, who had apprehended
Raj Kumar @ Raju and Surinder Pal
Singh, traveling in an Indica car and
effecting recovery from them do not come
within the definition of police officers."

The High Court thus affirmed
the order of conviction as recorded
against the appellant but reduced the
sentence to rigorous imprisonment for a
period of 10 years and to pay fine of Rs.1
lakh, in default whereof to undergo
further rigorous imprisonment for 11⁄2
years. Similar orders of sentence were
passed in respect of other co-accused
namely Raj Kumar @ Raju and Surinder
Pal Singh."

17. The said conviction was
challenged before the Hon'ble Apex
Court. The Hon'ble Apex Court after
taking into consideration the earlier
pronouncements of Apex Court found
that
the
issue
whether
statement
recorded under Section 67 of NDPS Act
can be construed as a confessional
statement even if the officer who
recorded such statement was not to be
treated as a police officer, has now been
referred to a larger bench : -

"10. Even if we are to proceed
on the premise that such statement
under Section 67 of the NDPS Act may
amount to confession, in our view,
certain additional features must be
established before such a confessional
statement could be relied upon against
a co-accused. It is noteworthy that
unlike Section 15 of Terrorist and
Disruptive
Activities
Act,
1987
[Similarly Section 18 of Maharashtra
Control of Organized Crime Act, 1999]
which specifically makes confession of
a co-accused admissible against other
accused in certain eventualities; there
is no such similar or identical provision
in
the
NDPS
Act
making
such
confession admissible against a coaccused. The matter therefore has to be
seen in the light of the law laid down by
this
Court
as
regard
general
application of a confession of a coaccused as against other accused.

11. In Kashmira Singh v. State of
Madhya Pradesh, (1952) SCR 526, this
Court relied upon the decision of the Privy
Council in Bhuboni Sahu v. the King,
(1949) 76 Indian Appeal 147 at 155 and
laid down as under :

"Gurubachan's confession has
played an important part in implicating the
appellant, and the question at once arises,
how far and in what way the confession of
an accused person can be used against a
co-accused? It is evident that it is not
evidence in the ordinary sense of the term
because, as the Privy Council say in
Bhuboni Sahu v. The King "It does not
indeed come within the definition of"
'evidence' contained in section 3 of the
Evidence Act, It is not required to be given
on oath, nor in the presence of the accused,
and it cannot be tested by crossexamination." Their Lordships also point
out that it is "obviously evidence of a very
442 INDIAN LAW REPORTS ALLAHABAD SERIES
weak type......... It is a much weaker type of
evidence than the evidence of an approver,
which is not subject to any of those
infirmities."

They stated in addition that such
a
confession
cannot
be
made
tile
foundation of a conviction and can only be
used in "support of other evidence." In view
of these remarks it would be pointless to
cover the same ground, but we feel it is
necessary to expound this further as
misapprehension still exists. The question
is, in what way can it be used in support of
other evidence? Can it be used to fill in
missing
gaps?
Can
it
be
used
to
corroborate an accomplice or, as in the
present case, a witness who, though not an
accomplice, is placed in the same category
regarding credibility because the judge
refuses to believe him except in so far as he
is corroborated ? ....................

12. The law laid down in
Kashmira Singh (supra) was approved by a
Constitution Bench of this Court in Hari
Charan Kurmi and Jogia Hajam v. State of
Bihar, (1964) 6 SCR 623 at 631-633
wherein it was observed :

"As we have already indicated,
this question has been considered on
several occasions by judicial decisions and
it has been consistently held that a
confession cannot be treated as evidence
which is substantive evidence against a coaccused person. In dealing with a criminal
case where the prosecution relies upon the
confession of one accused person against
another
accused
person,
the
proper
approach to adopt is to consider the other
evidence against such an accused person,
and if the said evidence appears to be
satisfactory and the Court is inclined to
hold that the said evidence may sustain the
charge framed against the said accused
person, the court turns to the confession
with a view to assure itself that the
conclusion which it is inclined to draw
from the other evidence is right. As was
observed by Sir Lawrence Jenkins in
Emperor v. Lalit Mohan Chuckerburty a
confession can only be used to "lend
assurance to other evidence against a coaccused". In re Periyaswami Moopan
Reilly. J., observed that the provision of
Section 30 goes not further than this:
"where there is evidence against the coaccused sufficient, if believed, to support
his conviction, then the kind of confession
described in Section 30 may be thrown into
the scale as an additional reason for
believing that evidence". In Bhuboni Sahu
v. King the Privy Council has expressed the
same view. Sir John Beaumont who spoke
for the Board, observed that "a confession
of a co-accused is obviously evidence of a
very weak type. It does not indeed come
within
the
definition
of
"evidence"
contained in Section 3 of the Evidence Act.
It is not required to be given on oath, nor in
the presence of the accused, and it cannot
be tested by cross-examination. It is a much
weaker type of evidence than the evidence
of an approver, which is not subject to any
of those infirmities. Section 30, however,
provides that the court may take the
confession into consideration and thereby,
no doubt, makes it evidence on which the
court may act; but the section does not say
that the confession is to amount to proof.
Clearly there must be other evidence. The
confession is only one element in the
consideration of all the facts proved the
case; it can be put into the scale and
weighed with the other evidence". It would
be noticed that as a result of the provisions
contained in Section 30, the confession has
no doubt to be regarded as amounting to
evidence in a general way, because
whatever is considered by the court is
evidence;
circumstances
which
are
considered by the court as well as
3-5 All. Aashu Pandit @ Aashu Bajpai @ Aash Narayan Sharma Vs. Union of India
443
probabilities do amount to evidence in that
generic sense. Thus, though confession may
be regarded as evidence in that generic
sense because of the provisions of Section
30, the fact remains that it is not evidence
as defined by Section 3 of the Act. The
result, therefore, is that in dealing with a
case against an accused person, the court
cannot start with the confession of a coaccused person; it must begin with other
evidence adduced by the prosecution and
after it has formed its opinion with regard
to the quality and effect of the said
evidence, then it is permissible to turn to
the confession in order to receive assurance
to the conclusion of guilt which the judicial
mind is about to reach on the said other
evidence. That, briefly stated, is the effect
of the provisions contained in Section 30.
The same view has been expressed by this
Court in Kashmira Singh v. State of
Madhya Pradesh where the decision of the
Privy Council in Bhuboni Sahu case has
been cited with approval."

14. In the present case it is
accepted that apart from the aforesaid
statements of co-accused there is no
material suggesting involvement of the
appellant in the crime in question. We are
thus left with only one piece of material
that is the confessional statements of the
co-accused as stated above. On the
touchstone of law laid down by this Court
such a confessional statement of a coaccused cannot by itself be taken as a
substantive piece of evidence against
another co-accused and can at best be used
or utilized in order to lend assurance to the
Court. In the absence of any substantive
evidence it would be inappropriate to base
the conviction of the appellant purely on
the statements of co-accused. The appellant
is therefore entitled to be acquitted of the
charges leveled against him. We, therefore,
accept this appeal, set aside the orders of
conviction and sentence and acquit the
appellant. The appellant shall be released
forthwith unless his custody is required in
connection with any other offence."

18. The Hon'ble Apex Court also
taken into account the law propounded by
the Hon'ble Apex Court in the case of
Kashmira Singh Vs. State of Madhya
Pradesh (supra) which was approved by
the Constitution Bench in Hari Charan
Kurmi and Jogia Hajam Vs. State of
Bihar (1964) 6 SCR 623 at 631-633. On
these assertion, learned counsel for the
appellant has argued that the Hon'ble Apex
Court in the case of Surinder Kumar
Khanna (supra) has held that the statement
of co-accused recorded under Section 67 of
NDPS Act cannot be made basis for
conviction
against
other
co-accused
persons.

19. Another case law cited by learned
counsel for the appellant is (2019) 3 SCC
(Cri) 684 : (2019) 8 SCC 811 Mohammed
Farsrin v. State. In this case also almost
similar view has been taken.

20. Encountering the arguments
advanced by learned counsel for the
appellant, learned counsel for the Union of
India
(DRI)
Shri
Deepak
Seth
has
submitted that from the facts enumerated in
this case, it is evident that 180 Kg. of
charas was recovered from the said truck of
which Rajesh Kumar Mishra was driver
and Raju Dubey was cleaner is not disputed
and both of them have been convicted for
10 Years' R.I. with a fine of Rs.1.00 Lakh
each. It is stated by learned counsel for the
DRI that from the statement of driver
Rajesh Kumar Mishra and Raju Dubey
recorded under Section 67 of NDPS Act,
complicity of the present appellant is fully
proved and this statement was proved
444 INDIAN LAW REPORTS ALLAHABAD SERIES
before the trial court as Ext. Ka-4 and Ext.
Ka-10, so these statements could be read
against the appellant and he could very well
be convicted merely on the basis of these
two statements. It is also stated that
statement of Rajesh Kumar Mishra and
Raju Dubey are not confessional statement
for the reason that a confession cannot be
made from any other person. Infact it is a
piece of evidence and if it is corroborated
with any other evidence, it is admissible as
evidence. If there is proof before the Court
that confession made by these two persons
is voluntary, truthful, reliable and beyond
reproach, then it is an effective piece of
evidence to establish the guilty.

21. It is also stated that so far as the
possession of the contraband is concerned,
the word "possession" has not been defined
under the provisions of NDPS Act. The
expression
"possession"
is
a
polymorphyous term. It does not mean only
the
physical
possession.
The
word
"conscious" means awareness brought on
fact. In the present case the appellant Ashu
Pandit was well aware of the entire fact and
was having actual control over the truck as
well as the contraband concealed in the
same
and,
therefore,
was
infact
in
conscious possession of the same. At the
time of trial of present appellant, neither
co-accused Rajesh Kumar Mishra, nor Raju
Dubey were accused in the case as their
trial was over and they were in jail after
conviction. Neither any evidence was led
by the appellant in support of his case nor
he ever tied to call Rajesh Kumar Mishra or
Raju Dubey for cross examining them. So,
their statement recorded under Section 67
of NDPS Act remain unrebutted.

22. To substantiate the argument,
learned counsel for the DRI has relied upon
a case law (2011) 11 SCC 347 : Ram Singh
Vs. Central Bureau of Narcotics. In the
said case law before the Apex Court
following question fall for determination :

"8.
In
view
of
the
rival
submissions questions which fall for
determination in this appeal are as follows
:

(i) Whether the confessions made
before the officers of the Central Bureau of
Narcotics are admissible in evidence;

(ii) Whether the confessions made
were voluntary in nature and if so without
corroboration, can it form the basis for
conviction; and

(iii) Whether the appellant can be
said to be in possession of the opium or
selling the same."

23. While considering these question
Hon'ble Apex Court has, after taking into
consideration the earlier pronouncements,
held as under : -

13. This Court had the occasion
to consider this question further in the case
of Kanhaiyalal vs. Union of India, 2008
(4) SCC 668, wherein it has been held as
follows :

"44. In addition to the above, in
Raj Kumar Karwal v. Union of India 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 conferred on officers under the
NDPS Act in relation to arrest, search and
seizure were similar to powers vested on
3-5 All. Aashu Pandit @ Aashu Bajpai @ Aash Narayan Sharma Vs. Union of India
445
officers under the Customs Act. Nothing
new has been submitted which can
persuade us to take a different view.

45. Considering the provisions of
Section 67 of the NDPS Act and the views
expressed by this Court in Raj Kumar
Karwal case 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 NDPS 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 NDPS Act to be used as a
confession against the person making it
and excludes it from the operation of
Section 24 to 27 of the Evidence Act."

14. From what has been observed
above, the officers vested with the powers
of investigation under the Act are not police
officers and, therefore, the confessions
recorded by such officers are admissible in
evidence. Therefore, the question posed at
the outset is answered in the affirmative
and it is 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. In view of aforesaid there is no
escape from the conclusion that the
confessions made by the appellant before
PW 6, Jagdish Mawal and PW 8, Mahaveer
Singh are admissible in evidence and
cannot be thrown out of consideration.

15. Now we proceed to consider
the second question set out at the outset
and in order to answer that we deem it
appropriate to reproduce Section 24 of the
Indian Evidence Act which reads as
follows:

"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."

From the plain reading of the
aforesaid provision it is evident that a
confession made by an accused is 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.

16. A confession, if it is voluntary,
truthful, reliable and beyond reproach is an
efficacious piece of evidence to establish
the guilt of the accused. 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 be said that a
conviction cannot be maintained solely on
the basis of the confession made under
Section 67 of the Act.

17.
Bearing
in
mind
the
principles aforesaid, now, we proceed to
consider the facts of the present case.
Appellant's first confession was recorded
by PW 6, Jagdish Mawal on 19th July,
1997 and he was produced before the Court
on 20th July, 1997 and he made no
grievance in regard to the confession
recorded. Another confession was recorded
446 INDIAN LAW REPORTS ALLAHABAD SERIES
on 20th July, 1997 and, thereafter, he was
produced before the Special Judge on 21st
July, 1997 and a copy of the police diary
was handed over to him. This obviously
would had contained the confessions made
by him. No complaint about the same was
made then also. Thereafter appellant was
produced before the Court several times but
he never retracted his confession. The
appellant retracted the confession made by
him for the first time in his statement under
Section 313 of the Code of Criminal
Procedure. In our opinion, when an
accused is made aware of the confession
made by him and he does not make
complaint within a reasonable time, same
shall be a relevant factor to adjudge as to
whether the confession was voluntary or
not. Here in the present case appellant was
produced before the Court on several dates
and at no stage he made any complaint
before the Special Judge of any torture or
harassment in recording the confession. It
is only when his statement was recorded
under Section 313 of the Code of Criminal
Procedure that he retracted and denied
making such a confession and went to the
extent of saying that his signatures were
obtained on blank pages. In the facts and
circumstances of the case we are of the
opinion that the confessional statements
made by the appellant were voluntary in
nature and could form the basis for
conviction. The view which we have taken
above finds support from the judgment of
this Court in the case of M. Prabhulal v.
Assistant Director, Directorte of Revenue
Intelligence, 2003 (8) SCC 449, in which it
has been held as follows:

"It has been established that the
Customs Office was about 20 km from the
place where the truck and the car were
apprehended. Having regard to the large
quantity of the heroin, the said vehicles
with Accused 2, 3 and 6 were brought to the
Customs Office. Further, Accused 1 and 2
did not know Tamil. A Hindi-knowing
officer had to be arranged. There was,
under the circumstances no delay in
recording the statements of the appellants.
Further, it is also to be borne in mind that
the appellants did not make any complaint
before the Magistrate before whom they
were produced complaining of any torture
or harassment. It is only when their
statements were recorded by the trial Judge
under Section 313 of the Code of Criminal
Procedure that a vague stand about the
torture
was
taken.
Under
these
circumstances, the confessional statements
cannot be held to be involuntary. The
statements were voluntarily made and can,
thus, be made the basis of the appellants'
conviction."

20.
Same
view
has
been
reiterated by this Court in the case of
Kanhaiyalal (supra) in which it has
been observed as follows :

"Since it has been held by this
Court that an officer for the purposes of
Section 67 of the NDPS Act read with
Section 42 thereof, is not a police
officer, the bar under Section 24 and 27
of the Evidence Act cannot be attracted
and the statement made by a person
directed to appear before the officer
concerned may be relied upon as a
confessional statement against such
person. Since a conviction can be
maintained solely on the basis of a
confession made under Section 67 of the
NDPS Act, we see no reason to interfere
with the conclusion of the High Court
convicting the appellant."

The second question posed at
the outset is thus answered accordingly.

21. Now we proceed to consider
the last question, i.e, whether the appellant
can be held guilty for being in possession
or involved in selling the opium so as to
3-5 All. Aashu Pandit @ Aashu Bajpai @ Aash Narayan Sharma Vs. Union of India
447
attract the mischief of Section 8/18 of the
Act.

22. In sum and substance the
confession of the appellant is that he was
working in the hotel for the last two months
and brought the opium from the house of
the hotel-owner to the hotel, where it was
being sold in tablets to the truck-drivers. In
the confession appellant has not stated or
for that matter none of the witnesses have
deposed that he was involved in selling the
opium-tablets. Therefore, the appellant
cannot be held guilty for selling opium.

23. Whether in the state of
evidence appellant can be held guilty for
possessing the opium only on the ground
that he brought the opium from the house of
the owner to the hotel is another question
which requires adjudication.

24. It is trite that to hold a person
guilty, possession has to be conscious.
Control over the goods is one of the tests to
ascertain conscious possession so also the
title. Once an article is found in possession
of an accused it could be presumed that he
was in conscious possession. Possession is
a
polymorphous
term
which
carries
different meaning in different context and
circumstances and, therefore, it is difficult
to lay down a completely logical and
precise definition uniformly applicable to
all situations with reference to all the
statutes. A servant of a hotel, in our
opinion, cannot be said to be in possession
of contraband belonging to his master
unless it is proved that it was left in his
custody over which he had absolute
control.

25.
Applying
the
aforesaid
principle when we consider the facts of the
present case it is difficult to hold that
opium was in possession of the appellant.
There is no evidence on record to suggest
that the appellant was in occupation of the
room from where opium was recovered.
Further the evidence clearly points out that
title to the opium vested in the owners of
the hotel. The confession given by the
appellant was only that he was servant of
the owners of the hotel from where the
opium was recovered.