# Vijai Kumar @ Pyare Lal (In Jail) v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 1028
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-19
- **Case number:** Criminal Appeal No. 2704 of 2012
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijai-kumar-pyare-lal-in-jail-v-state-of-u-p-anr-46873
- **Pages:** 39

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section

374(2)
&
Narcotics
Drugs
and
Psychotropic
Substance
Act,1985-Sections
Sections
8/20/27A/29-challenge to-conviction-no
recovery
from
the
appellant-bare
verification of certain calls from PCO of his
brother will by itself not amount to a proof
of his guilt-no compliance of the section
52-A of the Act-the contraband seized
from the spot was never produced in
Court-sample that was sent to the lab for
examination on opening, the envelope
found less than half in quantity, this
creates doubt about the sample being the
same one-blind reliance upon confessional
statement under Section 67 of the Act
could not have been taken recourse to, to
bring home the charge-confession before
the Intelligence Officer cannot be used
against
the
accused
persons-the
statement recorded cannot be taken as
voluntary statement to robe it with
credibility-recovery is not a consequence
of the information given by the accused at
all to attract the applicability of section 27
of the Evidence Act,1872-the accused is
set at liberty.(Para 2 to 80)

B. That the officers who are invested with
powers u/s 53 of the NDPS Act are "Police
Officers" within the meaning of section 25
of the Evidence Act, as a result of which
any confessional statement made to them
would be barred under the provisions of
section 25 of the Evidence Act, and cannot
3 All. Vijai Kumar @ Pyare Lal Vs. State of U.P. & Anr.
1029
be taken into account in order to convict
an accused under NDPS Act.

The Appeal is allowed. (E-5)

List of Cases cited:-

## Text

_Characters 0–39,281 of 130,025. This is a partial read: ask again with offset=39281 for what follows._

1028 INDIAN LAW REPORTS ALLAHABAD SERIES
prove the charge of offences punishable
under Section 302 read with Section 34 and
Section 452 IPC against the appellants
Indrajit Mishra, Sanjit Mishra and Mukesh
Tiwari beyond reasonable doubt. As the
evidence on record does not bring home the
guilt of the appellants Indrajit Mishra,
Sanjit Mishra and Mukesh Tiwari, beyond
the pale of doubt, the appellants are entitled
to the benefit of doubt. Consequently, the
appellants are entitled to be acquitted of all
the charges for which they were tried.

91 . As a result, both of the criminal
appeals are allowed. The judgment and order
of conviction as well as sentence recorded by
the trial court is set aside. The appellants are
acquitted of all the charges for which they
have been tried. The appellants Indrajit
Mishra, Sanjit Mishra are on bail, therefore,
their personal bonds and sureties are hereby
discharged. The appellant Mukesh Tiwari is
in jail. He shall be set at liberty forthwith if
not required in connection with any other
case. The appellants Indrajit Mishra, Sanjit
Mishra and Mukesh Tiwari will fullfill the
requirement of section 437-A Cr.P.C. to the
satisfaction of the trial Court at the earliest.

92. The trial court record be returned
forthwith together with a certified copy of
this judgment for compliance. The office is
further directed to enter the judgment in
compliance register maintained for the
purpose of the Court.
----------
(2021)03ILR A1028
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2021

BEFORE

THE HON'BLE AJIT KUMAR, J.

Criminal Appeal No. 2704 of 2012
Connected with
Criminal Appeal No. 2803 of 2012

Vijai Kumar @ Pyare Lal
 ...Appellant(In Jail)
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Appellant:
Sri U.B.Singh, Sri D.S. Mishra

Counsel for the Opposite Party:
A.G.A., Sri Ashish Pandey, Sri Sanjay
Kumar Singh

A. Criminal Law - Code of Criminal
Procedure,1973-Section

374(2)
&
Narcotics
Drugs
and
Psychotropic
Substance
Act,1985-Sections
Sections
8/20/27A/29-challenge to-conviction-no
recovery
from
the
appellant-bare
verification of certain calls from PCO of his
brother will by itself not amount to a proof
of his guilt-no compliance of the section
52-A of the Act-the contraband seized
from the spot was never produced in
Court-sample that was sent to the lab for
examination on opening, the envelope
found less than half in quantity, this
creates doubt about the sample being the
same one-blind reliance upon confessional
statement under Section 67 of the Act
could not have been taken recourse to, to
bring home the charge-confession before
the Intelligence Officer cannot be used
against
the
accused
persons-the
statement recorded cannot be taken as
voluntary statement to robe it with
credibility-recovery is not a consequence
of the information given by the accused at
all to attract the applicability of section 27
of the Evidence Act,1872-the accused is
set at liberty.(Para 2 to 80)

B. That the officers who are invested with
powers u/s 53 of the NDPS Act are "Police
Officers" within the meaning of section 25
of the Evidence Act, as a result of which
any confessional statement made to them
would be barred under the provisions of
section 25 of the Evidence Act, and cannot
3 All. Vijai Kumar @ Pyare Lal Vs. State of U.P. & Anr.
1029
be taken into account in order to convict
an accused under NDPS Act.

The Appeal is allowed. (E-5)

List of Cases cited:-

1. Kanahiyia Lal Vs U.O.I., (2008) 4 SCC 668

2. Toofan Singh Vs St. of T.N. (2020), CRLA No.
152 of 2013

3. Noor Aga Vs St. of Punj., (2008) 16 SCC 417

4. Rajesh Jagdamba Avasthi Vs St. of Goa,
(2005) AIR SC 1389

5. Jitendra & anr. Vs St. of M.P., (2003) AIR SC
4236

6. Vijay Pandey Vs St. of U.P., (2019) Supreme
(SC) 799

7. Mohinder Vs St. of Har., (2013) Cri.L.J. 3662

8. Gian Chand & ors. Vs St. of Har., (2018)
LawSuit (SC) 655

9. Jarnail Singh Vs St. of Punj., (2011) 1 SCC
(Cri.) 1191

10. Dehal Singh & ors. Vs St. of H.P. (2010)
LawSuit (SC) 592

11. St. of Raj. Vs Sahi Ram, (2019) AIR SC 4723

12. Madan Lal & anr. Vs St. of Har., (2003) 47
ACC 763

13. Dhananjay Reddy Vs St. of Karn., (2001) 4
SCC 9

14. St. of Ker. & Ors. Vs Kurian Abraham (P) Ltd.
& anr.(2008) 3 SCC 582

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

1. Heard Sri D.S.Mishra, learned
Advocate assisted by Sri U.B.Singh and Sri
Chandrakesh Mishra, learned counsel for
the respective appellants, Sri Ashish
Pandey, learned counsel for the Narcotics
Control Board and Sri B.A.Khan, learned
Additional Government Advocate for the
State.

2. These two above noted criminal
appeals have been listed together under the
order of this Court dated 20th August, 2019
as they arise out of common judgment
dated 3rd July, 2012 passed in Sessions
Trial No. 188 of 2003 (State v. Pyare Lal)
under Section 8/20/27A/29 of the Narcotics
Drugs and Psychotropic Substance Act,
1985 passed by Additional District and
Sessions Judge, Court No. 24/Special
Judge, Allahabad. Accordingly both the
appeals have been heard together and are
being decided by this common judgment.

3. The prosecution case in the
complaint is that on receiving information
from some reliable confidential sources, Sri
Kaushal Kant Mishra, an intelligence
officer of the Narcotics Control Bureau
Control, Varanasi landed at Allahabad on
2nd June, 2003 alongwith a team of
officers at around 5:00 pm directly at the
gate of M/s Gati Transport Private Ltd. a
private transport service for carriage of
goods and articles (for short transport
company). At the very gate of Transport
Company, he and his team happened to
meet two persons namely, Mrinmay Das
Gupta and Sandip Kumar Sharma, who
claimed themselves to be employees of the
Transport Company. The team of officers
led
by
Mr.
Mishra
apprised
these
employees about the purpose of their
arrival at Allahabad and persuaded them to
be their witnesses, to which they readily
agreed.
Thus,
having
obtained
their
consent, the team alongwith those two
witnesses reached at the spot where 20
plywood boxes were lying and they
approached the person as well who was
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
standing by side these boxes. Upon an
enquiry, he told the team that his name is
Vijay Kumar S/o Sukru Ram, a resident of
police
Station
Nizamabad,
district
Azamgarh and upon further enquiry from
him, he informed them that these 20 boxes
were full of Ganja (fruiting top of Cannabis
plant), a psychotropic substance. He
admitted that these boxes belonged to one
Vinod Singh S/o Shiv Nath Singh a
resident of village Ronwa, Post Fariha P.S.
Nizamabad, District Azamgarh, who had
asked him to get these boxes released and
for that purpose he had been paid Rs.
14,969/- and was also having the papers to
get these boxes released, and further that he
was directed by said Vinod Singh to get
these boxes delivered at his shop situate in
Ronwa village. He also informed the team
that he was waiting there for a proper
carriage to get these boxes loaded for the
desired destination. As usual, the officers
asked Vijay Kumar that should he wanted
these boxes and himself also to be searched
in front of a Gazetted Officer or Magistrate,
he would be permitted to do so but he
refused in writing for the same and
authorized the officers of the team to carry
out the search. The search was carried out
on the spot and said Vijay Kumar also
refused to get the independent witnesses to
be searched prior to search being carried
out. As agreed by Vijay Kumar, the search
of 20 plywood boxes was undertaken and
these boxes were found fully filled with
brown colour leaves etc. and when they
were tested on a testing tool kit, the team
had carried with it, it was found to be ganja
a psychotropic substance. On enquiry,
Vijay Kumar admitted to have prior
knowledge of psychotropic substance being
there inside those boxes and admitted to
have knowledge that he was carrying the
contraband quite unauthorizedly and that it
was a punishable offence under the Act,
1985, however, he claimed that he was
doing so for a monthly payment of Rs.
2000/-. The boxes thus were emptied as the
material was taken out of the boxes and
was all weighed and it all turned out to be
630 Kg in weight. The entire material was
kept in 22 jute bags and two sets of samples
were collected of 25 grams each from each
jute bag. The samples were separately
sealed in envelopes marking with separate
numbers as S1 and S 2 and were got duly
signed by the officers of the bureau who
were part of the team, independent
witnesses and said Vijay Kumar, one of the
appellants before this Court. All the 22 jute
bags were properly sealed and numberd
from 1 to 22 and papers pasted upon all
those were duly signed by the officers,
witnesses and the appellant Vijay Kumar.
The recovery memo was prepared and was
duly signed by the members of the team,
two independent witnesses, who claimed to
be employees of the Transport Company
and also by Vijay Kumar, one of the
appellants. Immediately after the task of
search and seizure of the boxes and
material was accomplished, a recovery
memo was prepared on the spot and the
information was sent to Varanasi about the
other accused namely Vinod Kumar. A
team in the leadership of Sri Ram Akbal
Dubey
of
Narcotics
Control
Bureau
Varanasi was constituted and with the help
of local police force the team carried out
search of person and the house of the said
Vinod
Kumar
in
presence
of
two
independent witnesses, namely Shiv Murat
Tiwari and Khaderu Ram, both resident of
village Dilauri, P.S. Rani Ki Sarai.
However, during search carried out of the
person and the house of Vinod Kumar no
incriminating material was found relating
to any contraband including the one in
respect of which one of the appellants
Vijay Kumar was taken into custody as said
3 All. Vijai Kumar @ Pyare Lal Vs. State of U.P. & Anr.
1031
contraband was seized at Allahabad on 2nd
June, 2003.

4. It transpires from the record that
while recovery memo was prepared on 2nd
June, 2003, the contraband and the jute
bags were taken to Varanasi and were
submitted for safe custody in Malkhana
only on 5.6.2003. The sample that was sent
for chemical examination and report to the
Central Laboratory at Delhi, on 05.06.2003
and the reports prepared on 16.07.2003
were received in September 2003, in which
the alleged sample was found to be a
psychotropic substance namely Ganja.

5. The prosecution led its witnesses
Ram Akbal Dubey as PW-1, the officer
who had conducted search and raid at the
residence of Vinod Kumar one of the
appellants, K.K.Mishra prosecution witness
no. 2 who had conducted search and
seizure of the boxes from the alleged
possession of appellant Vijay Kumar and
prepared recovery memo and other officers
of the team, Krishna Kant Srivastava and
Pradip Kumar Gunwant, the statements
recorded under Section 67 of the appellants
Vijay Kumar and Vinod Kumar, the
recovery memo, statements of independent
witnesses Mrinmay Das Gupta, Sandip
Kumar
Sharma,
Shiv
Murat
Tiwari,
Yashwant
Singh
and
Smt.
Basmati
recorded under Section 67 of the Act were
also
produced.
The
documents
qua
statements of Vinod Kumar and Vijay
Kumar about their having been duly
apprised of their rights to be searched
before the Gazetted Officer or Magistrate
were also produced and were duly marked
as exhibits. The laboratory reports were
also produced and duly marked as exhibits
A-10 to A-31. The physical verification
report of contraband kept in the Malkhana
by a judicial Magistrate, claimed as the one
prepared in compliance of Section 52-A of
the Act, 1985 was already there on record
of the trial court.

6. The trial court examined these
above named witnesses except Mrinmay
Das Gupta and Sandip Kumar Sharma, who
were not produced by the prosecution to
prove the recovery memo of 20 plywood
boxes and so also independent witness Shiv
Murat was not produced. Khaderu Ram
appeared as defence witness. Statements of
accused appellants under Section 313 of
Cr.P.C. were also recorded.

7. The trial court found statement
recorded by the officers of the department
under Section 67 of the Act to be fully
proved by the officers of the department
through their respective testimonies given
before the trial court. Though arguments
were advanced before the trial court that
two independent witnesses of the search
and seizure / recovery memo of the 20
plywood boxes, recovery of contraband,
collection of samples and proper sealing of
samples and jute bags, were not produced
before the Court and, therefore, the
recovery was doubtful and that independent
witness Khaderu Ram having completely
denied the search carried out of the person
and house of Vinod Kumar and that
confessional statements of the accused
persons recorded by the officers of the
Bureau could not have been taken to be
conclusive evidence and were surely hit by
Section 25 of the Indian Evidence Act
1872, but the said argument was rejected
by the trial court holding that in the light of
the authority of the Apex Court in the case
of Kanahiyia Lal v Union of India (2008)
4 SCC 668, the statements recorded under
Section 67 of the Act, are not the
statements to be taken as one recorded by
the police under the Indian Evidence Act,
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
1872 and, therefore, on the basis of
statement recorded under Section 67 of the
NDPS Act, the accused can be convicted.

8. The trial court proceeded to hold
that statements that have been recorded of
Vijay Kumar under Section 67 of the
NDPS Act, 1985 marked as Exhibit A-35
and that of Vinod Kumar marked as Exhibit
A-1 and the recovery memo marked and
Exhibited as Exhibit- A-34, it was apparent
that they were all involved in the
smuggling
of
contraband
that
was
recovered on 2nd June, 2003 at the gate of
godown of Transport Company from the
possession of said Pyare Lal @ Vijay
Kumar who took the name of the other
accused Vinod Kumar and thus both of
them were liable to be held guilty, and
accordingly awarded them with sentence as
prescribed under the law.

9. Learned Senior Advocate who
appeared in both the appeals as instructed
by the counsel appearing in the respective
appeals raised basically three arguments:

a. (first) The statements of the
accused persons recorded under Section 67
of the NDPS Act, 1985, by the officers of
the Narcotics Control Bureau, Varanasi,
was no better than the one recorded by the
police under Section 161 of the Cr.P.C.
and, therefore, does not have evidenciary
value and is hit by Section 25 of the Indian
Evidence Act, 1872;

b. (second) In the absence of
compliance of procedure as prescribed for
under Section52-A of the Act, 1955 and non
production of the original material kept safe
in sealed jute bags in Malkhana, during trial
in court to prove that sample collected was
the same as stored in the sealed jute bags,
clearly establishes that the entire theory of
contraband tested positive psychotropic
substance, remained uncorroborated and
unproved. Adding further, it is argued that
the link between the recovery of contraband
and submission of it in Malkhana suffers from
vice of questionable time lag of more than
two days and so also sending of the sample to
the Laboratory.

c. (third) In the absence of call
details of the outgoing calls from WLL and
phone numbers of Assam for want of STD
facility and further absence of call details
pertaining to the crucial period and so also in
the absence of credentials of those in whose
names telephone numbers were allotted qua
their involvement in the illicit trade of
contraband, mere call details to and fro
between a PCO number and such numbers,
would not by itself amount to conclusive
proof of illicit inter-state trade of contraband
by the accused persons so as to hold them
guilty of the offence under the NDPS Act,
1985.

10. In support of above arguments
raised by learned Senior Advocate, he has
relied upon recent judgment of the Apex
Court in the case of Toofan Singh v State of
Tamil Nadu delivered on 29th October, 2020
in Criminal Appeal no. 152 of 2013 and
other connected appeals, Noor Aga vs. State
of Panjab 2008 (16) SCC 417, Rajesh
Jagdamba Avasthi v State of Goa, AIR 2005
SC 1389, Jitendra and Another v State of
Madhya Pradesh AIR 2003 SC 4236, Vijay
Pandey v State of U.P. 2019 0 Supreme (SC)
799, Mohinder v. State of Haryana 2013
CRI.L.J. 3662.

11. Learned Senior Advocate thus
argued that order of conviction and
sentence impugned herein these two
criminal appeals was clearly unsustainable
and deserved to be set aside.
3 All. Vijai Kumar @ Pyare Lal Vs. State of U.P. & Anr.
1033

12. Per contra, learned counsel
appearing for the department Sri Ashish
Kumar Pandey vehemently opposed the
appeals and raised arguments justifying the
conviction and sentence of the accused
appellants. He argued that confessional
statement recorded under Section 67 of the
1985 Act, was not the only conclusive
evidence in the present case. There were
evidence like recovery memo etc. and the
documents recovered from the possession
of the said Vijay Kumar which related to
release of plywood boxes and the fact that
both the accused belonged to Azamgarh,
there was no occasion for the accused Vijay
Kumar to be here at Allahabad. In support
of his argument Sri Pandey has claimed
Gian Chand, and Others v. State of
Haryana 2018 LawSuit (SC) 655, Jarnail
Singh v. Stae of Panjab (2011)1 SCC (Cri.)
1191, Mohinder v. State of Haryana 2013
(Cri. L.J.) 3662, State of Rajasthan v. Sahi
Ram AIR 2019 (SC) 4723. Dehal Singh
and Others. v. State of Himachal Pradesh
2010 Law Suit (SC) 592.

13. Sri Basharat Ali Khan, learned
AGA has adopted the arguments of Sri
Pandey.

14 . Besides above, it was also
submitted on behalf of the respondents that
there was no reason to disbelieve or caste
doubt over the testimonies of the officers of
the department who had given conclusive
proof qua recovery memo prepared on the
spot, sample collected and sent to the
laboratory. It was argued that there could
not be any motive attached to the officers
for false implication of the accused
appellants. It was also argued that even
there was compliance of Section 52-A of
the Act, 1985 as judicial Magistrate had
visited
the
malkhana
and
physically
examined the contraband and prepared the
report on 22.12.2005 in compliance of the
order of the Court dated 03.12.2005 and
submitted the same which was on record
before the trial court and needed no further
proof and was to be taken as primary piece
of evidence.

15. Having gone through the records
and the arguments raised across the bar by
the learned counsel appearing for the
respective parties and having thoroughly
perused the records, I proceed to deal with
arguments raised by the learned Senior
Advocate appearing for the appellants with
due consideration of the arguments raised
by the learned Advocate Sri Pandey
appearing for the department.

16. Coming to the first argument,
the
question
is
as
to
whether
the
confessional statement of the accused
appellants by the officers of the department
under Section 67 of the Act, 1985 would be
no better than the statement recorded under
Section 161 and, therefore, hit by Section
25 of the Indian Evidence Act, 1872, the
legal position as has emerged in the recent
judgment of Toofan Singh (supra) by the
Supreme Court needs to be referred to. The
reference as noticed by the Supreme Court
in its judgment is reproduced hereunder:

"1.
Whether
an
officer
empowered under Section 42 of the NDPS
Act and/or the officer empowered under
Section 53 of the NDPS Act are Police
Officers and therefore statements recorded
by such officers would be hit by Section 25
of the Evidence Act; and

2. What is the extent, nature,
purpose and scope of the power conferred
under Section 67 of the NDPS Act available
to and exercisable by an officer under
section 42 thereof, and whether power
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 67 is a power to record
confession capable of being used as
substantive
evidence
to
convict
an
accused?"

17. Having referred to the arguments
of the respective counsel in detail and
having discussed the various authorities
cited before it, vide paragraph 147 to 152,
the Court has observed thus:

"147. What remains to be
considered is Kanhaiyalal (supra). In this
judgment, the question revolved around a
conviction on the basis of a confessional
statement made under section 67 of the
NDPS Act. This Court, after setting out
section 67, then drew a parallel between
the provisions of section 67 of the NDPS
Act and sections 107 and 108 of the
Customs Act, 1962, section 32 of the
Prevention
of
Terrorism
Act,
2002
(POTA) and section 15 of the TADA - see
paragraph 41. These provisions are as
follows:

Customs Act, 1962 107. Power to
examine persons.--Any officer of customs
empowered in this behalf by general or
special
order
of
the
Principal
Commissioner
of
Customs
or
Commissioner of Customs may, during the
course of any enquiry in connection with
the smuggling of any goods,

(a) require any person to produce
or deliver any document or thing relevant
to the enquiry;

(b)
examine
any
person
acquainted
with
the
facts
and
circumstances of the case.

108. Power to summon persons to
give evidence and produce documents.(1)
Any Gazetted Officer of customs shall have
power to summon any person whose
attendance he considers necessary either to
give evidence or to produce a document or
any other thing in any inquiry which such
officer is making under this Act. (2) A
summons to produce documents or other
things may be for the production of certain
specified documents or things or for the
production of all documents or things of a
certain description in the possession or
under the control of the person summoned.

(3) All persons so summoned
shall be bound to attend either in person or
by an authorised agent; as such officer may
direct and all persons so summoned shall
be bound to state the truth upon any subject
respecting which they are examined or
make
statements
and
produce
such
documents and other things as may be
required: Provided that the exemption
under section 132 of the Code of Civil
Procedure, 1908 (5 of 1908), shall be
applicable to any requisition for attendance
under this section. (4) Every such inquiry
as aforesaid shall be deemed to be a
judicial proceeding within the meaning of
section 193 and section 228 of the Indian
Penal Code, 1860 (45 of 1860).

POTA

32. Certain confessions made to
police
officers
to
be
taken
into
consideration.-
(1)
Notwithstanding
anything in the Code or in the Indian
Evidence Act 1872 (1 of 1872), but subject
to the provisions of this section, a
confession made by a person before a
police officer not lower in rank than a
Superintendent of Police and recorded by
such police officer either in writing or on
any mechanical or electronic device like
3 All. Vijai Kumar @ Pyare Lal Vs. State of U.P. & Anr.
1035
cassettes, tapes or sound tracks from out of
which sound or images can be reproduced,
shall be admissible in the trial of such
person for an offence under this Act or the
rules made thereunder.

(2) A police officer shall, before
recording any confession made by a person
under sub-section (1), explain to such person in
writing that he is not bound to make a
confession and that if he does so, it may be used
against him: Provided that where such person
prefers to remain silent, the police officer shall
not compel or induce him to make any
confession.

(3) The confession shall be recorded
in an atmosphere free from threat or
inducement and shall be in the same language
in which the person makes it.

(4) The person from whom a
confession has been recorded under sub-section
(1), shall be produced before the Court of a
Chief Metropolitan Magistrate or the Court of a
Chief Judicial Magistrate along with the
original statement of confession, written or
recorded on mechanical or electronic device
within forty-eight hours.

(5)
The
Chief
Metropolitan
Magistrate or the Chief Judicial Magistrate,
shall, record the statement, if any, made by the
person so produced and get his signature or
thumb impression and if there is any complaint
of torture, such person shall be directed to be
produced for medical examination before a
Medical Officer not lower in rank than an
Assistant Civil Surgeon and thereafter, he shall
be sent to judicial custody.

TADA

"15. Certain confessions made
to police officers to be taken into
consideration:
(1)
Notwithstanding
anything in the Code or in the Indian
Evidence Act, 1872 (1 of 1872), but subject
to the provisions of this section, a
confession made by a person before a
police officer not lower in rank than a
Superintendent of Police and recorded by
such police officer either in writing or on
any mechanical device like cassettes, tapes
or sound tracks from out of which sounds
or images can be reproduced, shall be
admissible in the trial of such person or coaccused, abettor or conspirator for an
offence under this Act or Rules made
thereunder:

Provided that co-accused, abettor
or conspirator is charged and tried in the
same case together with the accused.

(2) The police officer shall, before
recording any confession under sub-section
(1), explain to the person making it that he is
not bound to make a confession and that, if
he does so, it may be used as evidence
against him and such police officer shall not
record any such confession unless upon
questioning the person making it, he has
reason to believe that it is being made
voluntarily."

148. Even a cursory look at the
provisions of these statutes would show that
there is no parallel whatsoever between
section 67 of the NDPS Act and these
provisions. In fact, section 108 of the
Customs Act, 1962 expressly states that the
statements made therein are evidence, as
opposed to section 67 which is only a section
which enables an officer notified under
section 42 to gather information in an
enquiry in which persons are "examined".

149. Equally, Section 42 of
POTA and section 15 of TADA are
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
exceptions to section 25 of the Evidence
Act in terms, unlike the provisions of the
NDPS Act. Both these Acts, vide section
32 and section 15 respectively, have nonobstante clauses by which the Evidence
Act has to give way to the provisions of
these
Acts.
Pertinently,
confessional
statements made before police officers
under the provisions of the POTA and
TADA are made admissible in the trial of
such person see section 32(1), POTA, and
section 15(1) TADA. This is distinct from
the evidentiary value of statements made
under the NDPS Act, where section 53A
states
that,
in
the
circumstances
mentioned therein, statements made by a
person before any officer empowered
under
section
53
shall
merely
be
"relevant" for the purpose of proving the
truth of any facts contained in the said
statement. Therefore, statements made
before the officer under section53, even
when relevant under section 53A, cannot,
without corroborating evidence, be the
basis for the conviction of an accused.

150.
Also,
when
confessional
statements are used under the TADA and
POTA, they are used with several
safeguards which are contained in these
sections themselves. So far as TADA is
concerned, for example, in Kartar Singh
(supra)
the
following
additional
safeguards/guidelines were issued by the
Court to ensure that the confession
obtained in the course of investigation by
a police officer "is not tainted with any
vice but is in strict conformity with the
well-recognised and accepted aesthetic
principles and fundamental fairness":

"263(1) The confession should
be recorded in a free atmosphere in the
same language in which the person is
examined and as narrated by him;

(2) The person from whom a
confession has been recorded under Section
15(1) of t he Act, should be produced before
the Chief Metropolitan Magistrate or the
Chief Judicial Magistrate to whom the
confession is required to be sent under Rule
15(5) along with the original statement of
confession,
written
or
recorded
on
mechanical device without unreasonable
delay;

(3)
The
Chief
Metropolitan
Magistrate or the Chief Judicial Magistrate
should scrupulously record the statement, if
any, made by the accused so produced and
get his signature and in case of any
complaint of torture, the person should be
directed to be produced for medical
examination before a Medical Officer not
lower in rank than of an Assistant Civil
Surgeon;

(4)
Notwithstanding
anything
contained
in
the
code
of
Criminal
Procedure, 1973, no police officer below
the rank of an Assistant Commissioner of
Police in the Metropolitan cities and
elsewhere of a Deputy Superintendent of
Police or a police officer of equivalent
rank, should investigate any offence
punishable under this Act of 1987.

This is necessary in view of the
drastic provisions of this Act. More so
when the Prevention of Corruption Act,
1988 under Section 17 and the Immoral
Traffic Prevention Act, 1956 under section
13, authorise only a police officer of a
specified rank to investigate the offences
under those specified Acts.

(5) The police officer if he is
seeking the custody of any person for preindictment or pre-trial interrogation from
the judicial custody, must file an affidavit
3 All. Vijai Kumar @ Pyare Lal Vs. State of U.P. & Anr.
1037
sworn by him explaining the reason not
only for such custody but also for the delay,
if any, in seeking the police custody;

(6) In case, the person, taken for
interrogation, on receipt of the statutory
warning that he is not bound to make a
confession and that if he does so, the said
statement may be used against him as
evidence, asserts his right to silence, the
police officer must respect his right of
assertion without making any compulsion
to give a statement of disclosure;

The Central Government may
take
note
of
these
guidelines
and
incorporate
them
by
appropriate
amendments in the Act and the Rules."

151.
Insofar
as
POTA
is
concerned, procedural safeguards while
recording confessions have been discussed
by this Court in State (NCT of Delhi) v.
Navjot Sandhu (2005) 11 SCC 600 as
follows:

"Procedural safeguards in POTA
and their impact on confessions

156. As already noticed, POTA
has absorbed into it the guidelines spelt out
in Kartar Singh and D.K. Basu in order to
impart
an
element
of
fairness
and
reasonableness into the stringent provisions
of POTA in tune with the philosophy of
Article
21
and
allied
constitutional
provisions. These salutary safeguards are
contained in Sections 32 and 52 of POTA.
The peremptory prescriptions embodied in
section 32 of POTA are:

(a) The police officer shall warn
the accused that he is not bound to make the
confession and if he does so, it may be used
against him [vide sub-section (2)].

(b)
The
confession
shall
be
recorded in an atmosphere free from threat
or inducement and shall be in the same
language in which the person makes it [vide
sub-section (3)].

(c) The person from whom a
confession has been recorded under subsection (1) shall be produced before the Chief
Metropolitan Magistrate or Chief Judicial
Magistrate along with the original statement
of confession, within forty-eight hours [vide
sub-section (4)].

(d) The CMM/CJM shall record
the statement, if any, made by the person so
produced and get his signature and if there is
any complaint of torture, such person shall
be directed to be produced for medical
examination. After recording the statement
and after medical examination, if necessary,
he shall be sent to judicial custody [vide sub-
section (5)].

The mandate of sub-sections (2)
and (3) is not something new. Almost similar
prescriptions were there under TADA also. In
fact, the fulfilment of such mandate is
inherent in the process of recording a
confession by a statutory authority. What is
necessarily implicit is, perhaps, made
explicit. But the notable safeguards which
were lacking in TADA are to be found in subsections (4) and (5).

157. The lofty purpose behind the
mandate that the maker of the confession
shall be sent to judicial custody by the CJM
before whom he is produced is to provide
an atmosphere in which he would feel free
to make a complaint against the police, if
he so wishes. The feeling that he will be
free from the shackles of police custody
after production in court will minimise, if
not remove, the fear psychosis by which he
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
may be gripped. The various safeguards
enshrined in Section 32 are meant to be
strictly observed as they relate to personal
liberty of an individual. However, we add a
caveat here. The strict enforcement of the
provision as to judicial remand and the
invalidation of the confession merely on the
ground of its non-compliance may present
some
practical
difficulties
at
times.
Situations may arise that even after the
confession is made by a person in custody,
police custody may still be required for the
purpose of further investigation. Sending a
person to judicial custody at that stage may
retard the investigation. Sometimes, the
further steps to be taken by the investigator
with the help of the accused may brook no
delay. An attempt shall however be made to
harmonise this provision in Section 32(5)
with the powers of investigation available
to the police. At the same time, it needs to
be emphasised that the obligation to send
the confession maker to judicial custody
cannot be lightly disregarded. Police
custody cannot be given on the mere asking
by the police. It shall be remembered that
sending a person who has made the
confession to judicial custody after he is
produced before the CJM is the normal
rule and this procedural safeguard should
be given its due primacy. The CJM should
be satisfied that it is absolutely necessary
that the confession maker shall be restored
to police custody for any special reason.
Such a course of sending him back to
police custody could only be done in
exceptional cases after due application of
mind. Most often, sending such person to
judicial
custody
in
compliance
with
Section32(5) soon after the proceedings are
recorded by the CJM subject to the
consideration of the application by the
police after a few days may not make
material
difference
to
the
further
investigation. The CJM has a duty to
consider whether the application is only a
ruse to get back the person concerned to
police custody in case he disputes the
confession or it is an application made
bona fide in view of the need and urgency
involved. We are therefore of the view that
the non-compliance with the judicial
custody requirement does not per se vitiate
the confession, though its non-compliance
should be one of the important factors that
must be borne in mind in testing the
confession.

158. These provisions of Section
32, which are conceived in the interest of
the accused, will go a long way to screen
and exclude confessions, which appear to
be involuntary. The requirements and
safeguards laid down in sub sections (2) to
(5) are an integral part of the scheme
providing for admissibility of confession
made to the police officer. The breach of
any one of these requirements would have a
vital bearing on the admissibility and
evidentiary
value
of
the
confession
recorded under section 32(1) and may even
inflict a fatal blow on such confession. We
have another set of procedural safeguards
laid down in Section 52 of POTA which are
modelled on the guidelines envisaged by
D.K.Basu [(1997) 1 SCC 416]. Section 52
runs as under:

"52. (1) Where a police officer
arrests a person, he shall prepare a
custody memo of the person arrested.

(2) The person arrested shall be
informed of his right to consult a legal
practitioner as soon as he is brought to the
police station.

(3) Whenever any person is
arrested, information of his arrest shall be
immediately communicated by the police
3 All. Vijai Kumar @ Pyare Lal Vs. State of U.P. & Anr.
1039
officer to a family member or in his
absence to a relative of such person by
telegram, telephone or by any other means
and this fact shall be recorded by the police
officer under the signature of the person
arrested.

(4) The person arrested shall be
permitted to meet the legal practitioner
representing him during the course of
interrogation of the accused person:

Provided that nothing in this subsection shall entitle the legal practitioner to
remain present throughout the period of
interrogation."

Sub-sections (2) and (4) as well
as sub-section (3) stem from the guarantees
enshrined in Articles 21 and 22(1) of the
Constitution. Article 22(1) enjoins that no
person who is arrested shall be detained in
custody without being informed, as soon as
may be, of the grounds for such arrest nor
shall he be denied the right to consult, and
to be defended by, a legal practitioner of
his choice. They are also meant to
effectuate the commandment of Article
20(3) that no person accused of any offence
shall be compelled to be a witness against
himself.

152. Thus, to arrive at the
conclusion that a confessional statement
made before an officer designated under
section 42 or section 53 can be the basis to
convict a person under the NDPS Act,
without any non obstante clause doing
away with section 25 of the Evidence Act,
and without any safeguards, would be a
direct infringement of the constitutional
guarantees contained in Articles 14, 20(3)
and 21 of the Constitution of India. "

18. And finally, vide paragraphs 153,
154 and 155, the majority view has
emerged thus:

"153.
The
judgment
in
Kanhaiyalal (supra) then goes on to
follow Raj Kumar Karwal (supra) in
paragraphs 44 and 45. For the reasons
stated by us hereinabove, both these
judgments do not state the law correctly,
and are thus overruled by us. Other
judgments that expressly refer to and rely
upon these judgments, or upon the
principles laid down by these judgments,
also stand overruled for the reasons given
by us.

154.On the other hand, for the
reasons given by us in this judgment, the
judgments of Noor Aga (supra) and
Niramal Singh PehlwanSingh v. Inspector
Customs (2011) 12 SCC 298 are correct in
law.

155. We answer the reference by
stating:

(i) That the officers who are
invested with powers under section 53 of
the NDPS Act are "police officers" within
the meaning of section 25 of the Evidence
Act, as a result of which any confessional
statement made to them would be barred
under the provisions of section 25 of the
Evidence Act, and cannot be taken into
account in order to convict an accused
under the NDPS Act.

(ii) That a statement recorded under
section 67 of the NDPS Act cannot be
used as a confessional statement in the
trial of an offence under the NDPS Act."
 (Emphasis added)
1040 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Coming back to the case in hand
the trial court in its findings part has
observed thus:-