REPORTABLE

IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.296 OF 2014

MOHAMMED FASRIN                             APPELLANT(S)

                            VERSUS

STATE REP. BY THE INTELLIGENCE OFFICER     RESPONDENT(S)

J U D G M E N T

DEEPAK GUPTA, J.

This appeal by the accused is directed against the

judgment  dated  19.02.2008  of  the  Madras  High  Court

whereby it upheld the judgment dated 16.12.2005 of the

District  and  Sessions  Judge,  Madurai  acting  as  the

Special  Court  for  Narcotic  Drugs  and  Psychotropic

Substances Act, 1985 (NDPS Act) cases and convicted the

accused  along  with  three  others  for  having  committed

offences under the NDPS Act. As far as the appellant is

concerned, he was convicted for having committed offences

under Section 8(c) read with 29, 21 and 23(c) and 27(A)

of  the  NDPS  Act  and  apart  from  that  appellant  had

committed the offence punishable under Section 8(c) read

with 27(A) of the Act and sentenced to undergo rigorous

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imprisonment for a period of 15 years and to pay fine of

Rs.1,50,000/- and in default of payment to undergo simple

imprisonment for one year. Offence under Section 27A of

the  Act  relates  to  punishment  for  financing  illicit

traffic and harbouring offenders and reads as follows:

27A. Punishment for financing illicit traffic and harbouring offenders.- Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person  engaged  in  any  of  the  aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall  not  be  less  than  one  lakh  rupees  but which may extend to two lakh rupees:  

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees"

The essential ingredient of this offence is that

the prosecution must prove that the accused has financed

directly or indirectly any of the activities falling in

sub-clause (i) to (v) of Clause (viiia) of Section 2 of

the  Act  or  has  harbored  any  person  engaged  for  the

aforesaid  activities.  As  far  as  the  case  of  the

prosecution is concerned, it is only of financing and not

of harboring.

Section 8(c) of the NDPS Act reads as follows:

8.  Prohibition  of  certain  operations.-  No person shall- (a) ......... (b) .........

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(c)  produce,  manufacture,  possess,  sell, purchase,  transport,  warehouse,  use,  consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance,  

except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence,  permit  or  authorisation  also  in accordance  with  the  terms  and  conditions  of such licence, permit or authorisation:  

Provided  that,  and  subject  to  the  other provisions  of  this  Act  and  the  rules  made thereunder,  the  prohibition  against  the cultivation  of  the  cannabis  plant  for  the production  of  ganja  or  the  production, possession,  use,  consumption,  purchase,  sale, transport, warehousing, import inter-State and export  inter-State  of  ganja  for  any  purpose other than medical and scientific purpose shall take  effect  only  from  the  date  which  the Central Government may, by notification in the Official Gazette, specify in this behalf:

[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]"

This  is  basically  an  offence  for  exporting  or

importing into India or exporting from India contraband

substance. Though, the charges against the appellant were

of financing and of indulging in international smuggling

of contraband, virtually no evidence in this regard has

been found.  

We  now  may  refer  to  the  facts  necessary  for

disposal of this case. On 04.01.2003, the Intelligence

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Officer, Narcotic Department received information that at

the instance of the present appellant 7.4 kgs. of heroin

would be carried in a Toyota Qualis vehicle bearing No.TN

31  C  9117.  This  vehicle  was  apprehended  when  it  was

parked at Tamil Nadu Hotel of Madurai - Alagar Koil road

and 7.4 kgs. of heroin was recovered from it. At that

time accused no.2 to 6 were sitting in the car. Accused

nos.2 to 4 have been convicted under various provisions

of the NDPS Act. We are not concerned with them since, to

our knowledge, no appeal has been filed by them.  

As far as the present appellant is concerned, the

only evidence, if it can be called that, is the statement

of  a  co-accused  (accused  no.2)  and  his  own  alleged

confession. As far as statement of co-accused (Ext.P41)

is  concerned,  in  that  the  co-accused  states  in  great

detail as to how he came into contact with one other

person also called Mohammed in Bombay who had instructed

him to go to Manglapuram from Bombay. There he was again

asked to come to Hotel Airline at Manglapuram where he

met the said Mohammed of Bombay. It was that Mohammed of

Bombay, who handed over the vehicle to him and told him

that 7.4 kgs of heroin is kept hidden in 7 packets in a

false compartment beneath the front seat of the car. The

only allegation with regard to appellant is that after

taking  delivery  of  the  contraband  from  Mohammed  of

Bombay, the co-accused was to take the heroin and hand it

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over  to  one  Nalliappan.   The  said  Nalliappan  was  to

further hand over the heroin to the appellant. Neither

the said Mohammed from Bombay nor Nalliappan have been

examined  in  the  case  nor  they  have  been  arrayed  as

accused.   Therefore,  the  link  evidence  is  totally

missing.  Furthermore,  the  allegation  is  only  in  the

nature of hearsay that Mohammed had told the co-accused

that  he  had  to  deliver  the  contraband  to  the  present

appellant.  Even  if  we  take  the  confession  of  the  co-

accused Hasan Mohamed (A-2) into consideration, it would

only prove that Mohammed (from Bombay) had told the co-

accused that Nalliappan would handover the contraband to

the present appellant. This evidence of a co-accused is a

very  weak  type  of  evidence  which  needed  to  be

corroborated by some other evidence. The confession of a

co-accused gives a clue to the investigating authorities

as to how to investigate the matter and against whom to

investigate  the  matter.  Thereafter,  it  is  for  the

investigating  officers  to  collect  evidence  against  the

said person who has been named by the co-accused. In the

present case no such corroborative evidence has been led.

That brings us to the confessional statement of the

appellant recorded by PW-1.  Admittedly, this confession

was recorded after the appellant was arrested.  It is

true that the issue, whether a statement recorded under

Section  67  of  the  NDPS  Act  can  be  construed  as  a

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confessional  statement  even  if  the  officer  who  has

recorded such statement was not to be treated as a police

officer, has been referred to a larger Bench in the case

of Tofan Singh v. State of Tamil Nadu1.   

We,  for  the  decision  of  this  case,  therefore,

proceed on the premise that the confession is admissible.

Even if it is admissible, the Court has to be satisfied

that it is a voluntary statement, free from any pressure

and  also  that  the  accused  was  apprised  of  his  rights

before recording the confession.  No such material has

been brought on the record of this case.  It is also well

settled  that  a  confession,  especially  a  confession

recorded when the accused is in custody, is a weak piece

of  evidence  and  there  must  be  some  corroborative

evidence.  The confession of the co-accused, which was

said to be a corroborative piece of evidence, has been

discussed above and is of no material value.  Therefore,

other than the two confessional statements – one of the

co-accused and the other of the accused, the prosecution

has gathered no evidence to link the appellant with the

commission of the offence.  As such, without going into

the legality of the admissibility of the confession, we

hold that even if these confessions are admissible then

also  the  evidence  is  not  sufficient  to  convict  the

accused.   

1 (2013) 16 SCC 31

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We, accordingly, find force in the appeal.  We hold

that  both  the  Trial  Court  and  the  High  Court  wrongly

convicted the accused. We set aside the judgment of both

the  Courts  below.  Appeal  is  accordingly  allowed.  The

accused  is  already  on  bail.  His  bail  bonds  are

discharged.     

...................J.  (DEEPAK GUPTA)

...................J.  (ANIRUDDHA BOSE)

New Delhi September 04, 2019

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ITEM NO.120               COURT NO.13               SECTION II-C

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal No(s).296/2014

MOHAMMED FASRIN                                    Appellant(s)

                               VERSUS

STATE  REP. BY THE INTELLIGENCE OFFICER     Respondent(s)

(IA No. 20994/2013 - EXEMPTION FROM FILING O.T.)   Date : 04-09-2019 This matter was called on for hearing today.

CORAM :           HON'BLE MR. JUSTICE DEEPAK GUPTA          HON'BLE MR. JUSTICE ANIRUDDHA BOSE

For Appellant(s) Mr. Shikhil Suri, Adv. Mr. Shiv Kumar Suri, AOR Mr. Shilpa Saini, Adv.

                   For Respondent(s)

Mr. Ajit Kumar Sinha, Adv. Mr. Sanjay Kumar Tyagi, Adv. Mr. Rajan Kumar Chaurasia, Adv. Mrs. Rekha Pandey, Adv. Mr. T.A. Khan, Adv. Mr. Divyansh Rai, Adv. Mr. B.V. Balaram Das, AOR

                   Mr. B. Krishna Prasad, AOR                      

         UPON hearing the counsel the Court made the following                              O R D E R

The  appeal  is  allowed  in  terms  of  the  signed  reportable

judgment.

Pending application(s), if any, stands disposed of.

(ARJUN BISHT)                                   (RENU KAPOOR) COURT MASTER (SH)                        BRANCH OFFICER

(signed reportable judgment is placed on the file)

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