MOHAMMED FASRINversusSTATE REP. BY THE INTELLIGENCE OFFICER

                          [2019] 12 S.C.R. 465                           465


                      MOHAMMED FASRIN                                    A
                                  v.
        STATE REP. BY THE INTELLIGENCE OFFICER
                 (Criminal Appeal No. 296 of 2014)
                       SEPTEMBER 04, 2019                                B
      [DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
       Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.8(c) r/w ss.29, 21, 23(c), 27(A) and s.67 – Intelligence Officer,
Narcotic Department received information that at the instance of
                                                                         C
the appellant 7.4 kgs of heroin would be carried in a Toyota Qualis
vehicle – Vehicle apprehended – In terms of the statement of the
accused no.2 (co-accused), he met one ‘M’ from Bombay who told
him that after taking delivery of the contraband from him, the co-
accused was to take the heroin and hand it over to one ‘N, who was
to further hand over the heroin to the appellant – Confessional          D
statement of the appellant recorded by PW-1 – Appellant convicted
u/s. 8(c) r/w ss.29, 21, 23(c) and 27(A) – Held: Allegation with
regard to the appellant is only in the nature of hearsay that ‘M’ had
told the co-accused that he had to deliver the contraband to the
appellant – Neither the said ‘M’ from Bombay nor ‘N’ have been
                                                                         E
examined in the case nor they have been arrayed as accused –
Therefore, the link evidence is totally missing– Further, admittedly
the confession of the appellant was recorded after he was arrested–
Issue, whether statement recorded u/s.67 of the NDPS Act can be
construed as confessional statement even if the officer who recorded
such statement was not to be treated as a police officer, has been       F
referred to larger Bench in Tofan Singh v. State of Tamil Nadu –
Present case is proceeded 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
                                                                         G
confession – No such material has been brought on record –
Confession, especially a confession recorded when the accused is
in custody, is a weak piece of evidence and there must be some
corroborative evidence –Other than the two confessional statements,

                                                                         H
                                 465
466            SUPREME COURT REPORTS                      [2019] 12 S.C.R.


A     one of the co-accused and the other of the appellant, the prosecution
      has gathered no evidence to link the appellant with the commission
      of the offence – Confession of the co-accused, which was said to
      be a corroborative piece of evidence is of no material value –
      Evidence not sufficient to convict the appellant – Both the Trial
      Court and the High Court wrongly convicted the appellant –
B
      Judgment of both the Courts below, set aside.
            Evidence – Confession – Admissibility of – Discussed.
            Allowing the appeal, the Court
            HELD: 1.1 As far as the present appellant is concerned,
C     the only evidence, if it can be called that, is the statement of a co-
      accused (accused no.2) and his own alleged confession. The only
      allegation with regard to appellant is that after taking delivery of
      the contraband from ‘M’ of Bombay, the co-accused was to take
      the heroin and hand it over to one ‘N’. The said ‘N’ was to further
D     hand over the heroin to the appellant. Neither the said ‘M’ from
      Bombay nor ‘N’ 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 ‘M’ had told the co-accused that he had to deliver
      the contraband to the present appellant. Even if the confession
E     of the co-accused, A-2 is taken into consideration, it would only
      prove that ‘M” (from Bombay) had told the co-accused that ‘N’
      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
F     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. Admittedly, the confessional
G     statement of the appellant recorded by PW-1 was recorded after
      he was arrested. The issue, whether a statement recorded under
      Section 67 of the NDPS Act can be construed as a 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
H
MOHAMMED FASRIN v. STATE REP. BY THE INTELLIGENCE                             467
                    OFFICER

larger Bench in the case of Tofan Singh v. State of Tamil Nadu.               A
The decision of this case is therefore proceeded 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
                                                                              B
brought on the record of this case. 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                    C
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, it is
held that even if these confessions are admissible then also
                                                                              D
the evidence is not sufficient to convict the accused. [Paras 5-7]
[469-H; 470-A-H; 471-A-C]
      Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31 :
      [2013] 9 SCR 962 – referred to.
                        Case Law Reference                                    E
[2013] 9 SCR 962                  referred to               Para 7
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 296 of 2014.
     From the Judgment and Order dated 19.02.2008 of the Madurai
                                                                              F
Bench of Madras High Court in Criminal Appeal No. 204 of 2007.
      Shikhil Suri, Shiv Kumar Suri, Shilpa Saini, Advs. for the Appellant.
      Ajit Kumar Sinha, Sanjay Kumar Tyagi, Rajan Kumar Chaurasia,
Mrs. Rekha Pandey, T.A. Khan, Divyansh Rai, B.V. Balaram Das,
B. Krishna Prasad, Advs. for the Respondent.                                  G
      The Judgment of the Court was delivered by
      DEEPAK GUPTA, J.
      1. This appeal by the accused is directed against the judgment
dated 19.02.2008 of the Madras High Court whereby it upheld the
                                                                              H
468                SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A     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
B
      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 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
C     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
D            (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:
E
                   Provided that the court may, for reasons to be recorded in
             the judgment, impose a fine exceeding two lakh rupees”
             2. The essential ingredient of this offence is that the prosecution
      must prove that the accused has financed directly or indirectly any of
F     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:
G            8. Prohibition of certain operations.- No person shall-
             (a)       .........
             (b)       .........
             (c) produce, manufacture, possess, sell, purchase, transport,
H            warehouse, use, consume, import inter-State, export inter-State,
MOHAMMED FASRIN v. STATE REP. BY THE INTELLIGENCE                              469
          OFFICER [DEEPAK GUPTA, J.]

      import into India, export from India or tranship any narcotic drug       A
      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       B
      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,     C
      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:
                                                                               D
      [Provided further that nothing in this section shall apply to the
      export of poppy straw for decorative purposes.]”
       3. 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      E
smuggling of contraband, virtually no evidence in this regard has been
found.
       4. We now may refer to the facts necessary for disposal of this
case. On 04.01.2003, the Intelligence Officer, Narcotic Department
received information that at the instance of the present appellant 7.4         F
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,              G
no appeal has been filed by them.
        5. 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    H
470               SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A     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
B
      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 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
C     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
D
      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
E     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.
             6. That brings us to the confessional statement of the appellant
F     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
      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.
G
            7. 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
      1
H         (2013) 16 SCC 31
MOHAMMED FASRIN v. STATE REP. BY THE INTELLIGENCE                               471
          OFFICER [DEEPAK GUPTA, J.]

recording the confession. No such material has been brought on the              A
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
                                                                                B
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.                                              C
       8. 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.
                                                                                D
Divya Pandey                                                  Appeal allowed.




                                                                                E




                                                                                F




                                                                                G




                                                                                H