1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  949    OF 2018 (Arising out of Special Leave Petition (Criminal) No.9816 of 2017)

Surinder Kumar Khanna  ……Appellant

Versus

Intelligence Officer Directorate  of Revenue Intelligence ..…. Respondent

J U D G M E N T  

Uday Umesh Lalit, J.

1. Special Leave to Appeal granted.

2. This appeal challenges the correctness of Judgment and Order dated

21.12.2016 passed by the High Court of Punjab and Haryana at Chandigarh

in Criminal Appeal No.798 of 2014 by which the High Court affirmed the

conviction of the appellant for the offences punishable under Section 21(c)

2 read with Section 29 of The  Narcotic Drugs and Psychotropic Substances

Act, 1985 (‘NDPC Act’, for short).

3. According to the Prosecution:-

a. On a specific information that narcotic drugs were going to be

transported from Jammu side to Chandigarh via Hoshiarpur in a white

colour Indica car bearing registration no.PB-02AJ-7288, the officers

of Directorate of Revenue Intelligence (for short ‘DRI’) laid picket at

toll  barrier  at  Hoshiarpur-Garhshankar  road.   At  10:35 hours,  they

intercepted  an Indica  car  of  white  colour  which was coming from

Hoshiarpur side bearing registration No.PB-02AJ-7288.  The car was

being driven by one Raj Kumar @ Raju whereas one Surinder Pal

Singh was sitting next to him.  To ensure safe search of the car and

personal  search  of  occupants,  the  car  was  taken  to  the  office  of

Superintendent, Central Excise Range, Model Town, Hoshiarpur.  The

officers of DRI served notice under Section 50 of the NDPS Act upon

said Raj Kumar @ Raju and Surinder Pal Singh.   

b. As desired by said suspects, their personal searches and that of

the car were conducted in the presence of independent witnesses and

Shri SJS Chugh, Senior Intelligence Officer.  Personal searches of the

suspects  did  not  result  in  recovery  of  any  incriminating  material.

3 However,  when  the  car  was  searched,  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 came to 4.300 kg.   

c. Each  of  those  packets  was  containing  white  colour

granules/powder which gave a very pungent smell.  The pinch of each

packet  was  tested,  which  showed  the  presence  of  heroin.   The

recovered heroin weighing 3.990 kgs was valued at Rs.19,95,000/-.

Those four packets were taken into possession.  Two representative

samples of 5 gms each were taken out from each of the packets as per

rules.  Indica car was also seized by the officers of DRI.  Statements

of  both  the  suspects  were  recorded.   From  their  statements,  it

transpired that four packets of heroin had been taken from one Mr.

Goldy r/o Vijaypur, Jammu and those packets were to be delivered to

a person of African origin near PGI Chandigarh.   

d. Initially a complaint under Sections 21, 22, 23, 28, 29 and 60 of

the  NDPS  Act  was  lodged  against  said  Raj  Kumar  @  Raju  and

Surinder  Pal  Singh.   During  investigation,  the  involvement  of  the

present appellant in the drug racket 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

4 complaint.  After hearing arguments, charges were framed against said

Raj Kumar @ Raju and Surinder Pal Singh and the appellant for the

offences under Sections 21, 29 and 60 of the NDPS Act.   

4. The prosecution, in support of its case examined four witnesses.  After

hearing  submissions,  the  trial  court  convicted  and  sentenced  all  three

accused.  The appellant was convicted under Section 21(c) read with Section

29 of the NDPS Act and was sentenced to undergo rigorous imprisonment

for 12 years and to pay a fine of Rs.1 lakh, in default whereof to undergo

further rigorous imprisonment for three years.  Similar orders for conviction

and sentence were recorded against other two accused namely Raj Kumar @

Raju and Surinder Pal Singh.  All three convicted accused preferred appeals;

namely Criminal  Appeal  No.D-955-DB-2013 was filed by Raj  Kumar @

Raju  and Surinder  Pal  Singh while  Criminal  Appeal  No.D-798-DB-2014

was preferred by the appellant.  Both these appeals were heard together by

the High Court.   

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 to indicate  the involvement  of  the appellant.   The High Court

5 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  1½ years.   Similar  orders  of

sentence were passed in respect of other co-accused namely Raj Kumar @

Raju and Surinder Pal Singh.

6. In  this  appeal  challenging  the  correctness  of  the  conviction  and

sentence rendered as against the appellant, it was submitted by Mr. Jayant

Bhushan, learned Senior Advocate that apart from the so called statements of

co-accused Raj Kumar @ Raju and Surinder Pal Singh there was nothing

against the appellant and that he was neither arrested at the site nor was the

6 contraband material in any way associated with him.  Mr. Maninder Singh,

learned Additional Solicitor General appearing for the respondent however

supported  the  judgment  of  conviction  and  sentence  rendered  against  the

appellant.  He placed on record call data reports showing that around the

time when the co-accused was arrested, the appellant was in touch with a

person  named Chaudhary  from Dubai.   The  learned  Additional  Solicitor

General however fairly accepted that apart from the statements of the co-

accused there was nothing to link the appellant with said convicted accused.

The call  data reports also did not indicate that around the time when co-

accused were apprehended, the appellant was in touch with either of them.   

7. For  the  present  purposes,  we  will  proceed  on  the  footing  that  the

statements of co-accused were recorded under and in terms of Section 67 of

the NDPS Act. As regards such statements, a bench of two Judges of this

Court after referring to and relying upon the earlier Judgments, observed in

Kanhaiyalal v. Union of India1, as under:

“45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case2 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

1 (2008) 4 SCC 668 2 (1990) 2 SCC 409

7 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.”

8. Later, another bench of two Judges of this Court in  Tofan Singh v.

State  of  Tamil  Nadu3 was  of  the  view  that  the  matter  required

reconsideration and therefore, directed that the matter  be placed before a

larger bench.  It was observed in Tofan Singh (supra) as under:

“40. In our view the aforesaid discussion necessitates a re-look into the ratio of  Kanhaiyalal case.  It  is  more so when this  Court  has already doubted the dicta in Kanhaiyalal in Nirmal Singh Pehlwan4 wherein after noticing both Kanhaiyalal as well as Noor Aga5, this Court  observed thus:  (Nirmal Singh Pehlwan case,  SCC p.  302, para 15)

“15.  We  also  see  that  the  Division  Bench  in Kanhaiyalal case had not examined the principles and the  concepts  underlying  Section  25  of  the  Evidence Act,  1872 vis-à-vis  Section 108 of  the  Customs Act and  the  powers  of  a  Customs  Officer  who  could investigate and bring for trial an accused in a narcotic matter.  The  said  case  relied  exclusively  on  the judgment in  Raj Kumar case. The latest judgment in point of time is  Noor Aga case which has dealt very elaborately with this matter. We thus feel it would be proper  for  us to  follow the ratio  of  the  judgment in Noor  Aga case particularly  as  the  provisions  of Section 50 of the Act which are mandatory have also not been complied with.”

3 (2013) 16 SCC 31 4 (2011) 12 SCC 298 5 (2008) 16 SCC 417

8 41. For the aforesaid reasons,  we are of the view that  the matter needs to be referred to a larger Bench for reconsideration of the issue as to whether the officer investigating the matter under the NDPS Act would qualify as police officer or not.

42. In this context, the other related issue viz. whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer also needs to be referred to the larger Bench, inasmuch  as  it  is  intermixed  with  a  facet  of  the  1st  issue  as  to whether such a statement is to be treated as statement under Section 161  of  the  Code  or  it  partakes  the  character  of  statement  under Section 164 of the Code.”

9. Thus the issue whether statement recorded under Section 67 of the

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,  19876 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 co-

6 Similarly: Section 18 of Maharashtra Control of Organised Crime Act, 1999

9 accused.  The matter therefore has to be seen in the light of the law laid

down by this Court as regards general application of a confession of a co-

accused as against other accused.

11. In  Kashmira Singh v.  State of Madhya Pradesh7,  this Court relied

upon the decision of the Privy Council in Bhuboni Sahu v.  The King8 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  cross- examination."  Their  Lordships  also  point  out  that  it  is "obviously  evidence  of  a  very  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 ?

7 (1952) SCR 526 8 (1949) 76 Indian Appeal 147 at 155

11 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  co-accused”.  In  re Periyaswami  Moopan Reilly.  J.,  observed  that  the  provision  of Section  30  goes  not  further  than  this:  “where  there  is  evidence against  the  co-accused  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 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  co-accused  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

12 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.”

13. The law so laid down has always been followed by this Court except

in cases where there is a specific provision in law making such confession of

a co-accused admissible against another accused.12

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  co-accused  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

12 For example: State vs. Nalini, (1999) 5 SCC 253, paras 424 and 704

13 and acquit the appellant.  The appellant shall be released forthwith unless his

custody is required in connection with any other offence.

…...……..…………….J.           (Abhay Manohar Sapre)

..…..………….……….J.  (Uday Umesh Lalit)  

New Delhi, July 31, 2018