REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.451-452 OF 2005

RAM SINGH      … APPELLANT

VERSUS

CENTRAL BUREAU OF NARCOTICS      …RESPONDENT

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. Appellant  aggrieved  by  his  conviction  and  sentence  is  

before us with the leave of the Court.

2. According to the prosecution a secret information led to  

recovery of  2.1  Kgms.  of  opium by PW.7,  Abdul  Mazid,  the  

District Opium Officer from a room adjoining the kitchen of a  

hotel situated at Sagrana on Neemuch-Chittor road. Appellant  

was  working  as  servant  in  the  said  hotel.  Jagdish  Mawal  

(PW.6) the then Deputy Commissioner of Narcotics was one of  

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the members of the search party, who had seized the opium,  

drawn the seizure memo and recorded the statement (Ex.P/12)  

of the appellant on the same day.  PW.8, Mahaveer Singh, at  

the  relevant  time  was  working  as  Inspector  in  the  Central  

Bureau of Narcotics and on 19th July, 1997 itself at 23:45 hrs.,  

he was appointed as the Investigating Officer of the case.  He  

produced the appellant before the Special Judge on 20th July,  

1997  and  at  his  request  appellant  was  remanded  to  his  

custody  till  21st July,  1997.  He  recorded  the  statement  

(Ex.P/15) of the appellant on 20th July, 1997. In the statement  

(Ex.P/12)  appellant  confessed  that  the  opium  seized  was  

brought  by  him  in  the  hotel.   In  another  confessional  

statement  (Ex.P/15)  recorded  by  the  Investigating  Officer  

appellant confessed that he had been working in the hotel for  

the last two months and brought the opium to the hotel from  

the house of its owner on his direction.  He further confessed  

that opium tablets used to be sold to the truck drivers at the  

rate of Rs.30/- per tola.   

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3. Opium  seized  was  sent  to  the  Forensic  Science  

Laboratory for examination which found presence of  4.31 per  

cent  of  morphine  in  it.   After  the  confessional  statement  

recorded  by  the  Investigating  Officer  on 20th July,  1997 he  

produced the appellant before the Special Judge on 21st July,  

1997 along with the case diary and the copy of the same was  

furnished to him.  

4. Both  the  confessional  statements  of  the  appellant  

recorded  by  the  officers  of  the  Central  Bureau  of  Narcotics  

were  considered  admissible  in  evidence  and  relying  on  the  

same the trial court held that the appellant was in possession  

of opium and accordingly convicted him under Section 8 read  

with  Section  18  of  the  Narcotic  Drugs  and  Psychotropic  

Substances  Act  (hereinafter  referred  to  as  the  “Act”)  and  

sentenced him to undergo rigorous imprisonment for ten years  

and  fine  of  Rs.1  lakh,  in  default  to  suffer  rigorous  

imprisonment  for  two  years.   The  order  of  conviction  and  

sentence has been affirmed by the High Court in appeal.

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5. Mr.  Sushil  Kumar Jain,  learned Counsel  appearing on  

behalf  of  the  appellant  submits  that  the  two  confessional  

statements  made  by  the  appellant  before  the  authorities  of  

Central  Bureau  of  Narcotics  are  not  only  inadmissible  in  

evidence but also not voluntary and further not corroborated  

by any other evidence and, therefore, the order of conviction  

and sentence is fit to be set aside.  He further submits that if  

the  confessional  statements  are  taken  in  their  entirety  the  

appellant  cannot  be  held  to  be  in  possession  of  opium  or  

selling the opium so as to attract the mischief of Section 8/18  

of the Act.  

6. Mr.  Ashok  Kumar  Shrivastava,  learned  Counsel  

appearing on behalf of the respondent, however, contends that  

confessional statements made by the appellant are admissible  

and  voluntary  and  that  clearly  establish  the  guilt  of  the  

appellant  and,  therefore,  he  was  rightly  convicted  and  

sentenced.   

7. In view of the rival submissions questions which fall for  

determination in this appeal are as follows:

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(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.  

8. In  order  to  answer  these  questions  it  is  expedient  to  

examine the scheme of the Act. Section 42 of the Act confers  

on  specified  categories  of  officers  power  of  entry,  search,  

seizure and arrest without warrant or authorization. Section  

43 thereof confers the power of seizure and arrest. Section 51  

of the Act, inter alia, provides application of the provisions of  

Code of Criminal Procedure to all warrants issued and arrests,  

searches and seizures made under the Act in so far as they are  

not  inconsistent  with  its  provisions.  Power  to  call  for  

information to the officers specified is conferred by Section 67  

of the Act and the confessions in the present case have been  

recorded  in  exercise  of  the  said  power.   Section  25  of  the  

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Evidence  Act  makes  confessional  statement  given  by  an  

accused before police officers inadmissible in evidence which  

cannot  be  brought  on  record  by  the  prosecution  to  obtain  

conviction.  Further  Section  26  of  the  Evidence  Act  in  no  

uncertain terms provides that the confession made while in  

custody of police officer cannot be proved against accused to  

support  the  criminal  charge.  Therefore,  what  needs  to  be  

considered is as to whether the officers of the Central Bureau  

of  Narcotics,  who  had  recorded  the  confessions,  are  police  

officers  within  the  meaning  of  Section  25  and  26  of  the  

Evidence  Act.  True  it  is  that  Section  53 of  the  Act  confers  

powers  to  the  Central  Government  to  invest  officers  of  the  

specified categories, the powers of an officer-in-charge of police  

station but that itself, in our opinion, shall not make them the  

police officers within the meaning of Section 25 and 26 of the  

Evidence Act.  The officers with whom lie the powers of search,  

seizure  and  investigation  under  the  Act  have  not  been  

conferred with the power to submit report under Section 173  

of the Code of Criminal Procedure. Such officer is required to  

lay complaint in the Court of Special Judge for prosecuting an  

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accused.  In our opinion  the power to submit  report  under  

Section 173 of the Code of Criminal Procedure is necessary to  

make the officers  of  the  Central  Bureau of  Narcotics  police  

officers  within  the  meaning  of  Section  25  and  26  of  the  

Evidence Act. The important attribute of Police Officer is not  

only to investigate but also to launch prosecution by filing a  

report or charge-sheet. In view of the pronouncement of this  

Court in the case of  Raj Kumar Karwal vs. Union of India  

and others, 1990 (2) SCC 409,  this question does not need  

much discussion. This was a case under the Narcotic Drugs  

and Psychotropic Substances Act itself and on review of large  

number  of  authorities,  this  Court  came  to  the  following  

conclusion in paragraph 22 of the judgment which reads as  

follows:

“………The important attribute of police power is not  only the power to investigate into the commission of   cognizable  offence but also  the  power  to  prosecute  the  offender  by  filing  a  report  or  a  charge-sheet   under  Section  173  of  the  Code.  That  is  why  this   Court has since the decision in Badku Joti Savant v.   State  of  Mysore  AIR  1966  SC  1746, accepted  the  ratio  that  unless  an  officer  is  invested  under  any  special  law with  the  powers of  investigation  under  the  Code,  including  the  power  to  submit  a  report   under Section 173, he cannot be described to be a  ‘police officer’ under Section 25, Evidence Act……...”

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9. 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  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 Sections 24 to   27 of the Evidence Act.”

10. From what has been observed above, the officers vested  

with the powers of investigation under the Act are not police  

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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 Section 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.

11. 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   

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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.”   

12. 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.  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.  

13. Bearing  in  mind  the  principles  aforesaid,  now,  we  

proceed to consider the facts of the present case. Appellant’s  

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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 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  

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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,  

Directorate 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  

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and can, thus, be made the basis of the appellants’   conviction.”

    (underlining ours)

14. 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 Sections 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.   

15. 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 attract the  

mischief of Section 8/18 of the Act.  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  

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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.  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.  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  

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unless it is proved that it was left in his custody over which he  

had absolute control.  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. In the face of the  

state of evidence it is difficult to hold that the appellant was in  

conscious  possession  of  the  opium.   Section  18  of  the  Act  

prescribes punishment for possession and that possession, in  

our opinion, has to be conscious.   In the facts of the present  

case it is difficult to hold that the appellant was in possession  

of  the  opium  and,  therefore,  his  conviction  and  sentence  

cannot be sustained.  

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16. In  the  result,  the  appeals  are  allowed,  impugned  

judgment of conviction and sentence is set aside. Appellant is  

on bail, his bail bonds are discharged.  

……….………………………………..J.                              (HARJIT SINGH BEDI)

..........………………………………..J.                                           (CHANDRAMAULI KR. PRASAD)

NEW DELHI, APRIL 28, 2011.  

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