Supreme Court of India
RAJU PREMJIversusCUSTOMS NER SHILLONG UNIT
- Citation
- 2009 INSC 736
- Decided
- 6 May 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
Confessions made while the accused were in police custody are inadmissible under Section 26 of the Evidence Act, and the convictions cannot be sustained.
Summary
The appellants Raju Premji and Arun Kanungo were convicted under Sections 21, 28 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act for abetting possession of heroin, based primarily on confessional statements recorded while they were in police custody and later handed over to customs officers. The trial court and the High Court upheld the conviction, but the Supreme Court held that the statements were inadmissible because they were made in police custody, violating Section 26 of the Evidence Act, and because the procedural safeguards under the NDPS Act—such as a search warrant, compliance with Section 50, and serving summons—were not observed. The Court further noted that the appellants were never found in possession of the contraband, so the burden of proof never shifted to them. Consequently, the confessions could not be considered voluntary, and the convictions could not stand. The appeals were allowed and the appellants were ordered to be released.
Issues considered
- The admissibility of confessional statements made by the accused while in police/customs custody under Section 26 of the Evidence Act.
- Whether the procedural requirements of the NDPS Act, particularly Sections 50, 53 and 67, were complied with during the search, seizure and interrogation.
- Whether the burden of proof shifted to the accused in the absence of any seized contraband.
- Whether customs officers could lawfully record statements under Section 67 of the NDPS Act.
- The validity of convictions under Sections 21, 28 and 29 of the NDPS Act on the basis of the impugned statements.
Legislation cited
- Code of Criminal Procedures. 2(g)
- Indian Evidence Act, 1872s. 25, s. 26
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 21, s. 28, s. 29, s. 50, s. 53, s. 67
Subjects
NDPS ActconfessionevidenceSection 26 Evidence Actsearch and seizurecustomspolice custodyabetmentprocedural safeguards
Judgment
[2009] 7 S.C.R. 839
RAJU PREMJI A
V.
CUSTOMS NER SHILLONG UNIT
Criminal Appeal No. 1647 of 2007
MAY 6, 2009
B
[S.B. SINHA AND R.M. LODHA, JJ.]
•,
/
Narcotic Drugs and Psychotropic Substances Act, 1985:
;, '
ss.21, 28 and 29- Conviction under, based on confession
made in police custody - Held: Conviction not justified as c
conditions precedent for taking drastic action under the Act
were not complied with - No search warrant or authorisation
was obtained- Search of 'person' was without complying with
requirement of s.50 - There was no logic on part of police
.authorities to transfer the case to custom authorities - No
D
summons were served on them - Appellants were in custody
of police and therefore any statement made by them while in
police custody would be inadmissible in evidence under s. 26
of Evidence Act - In facts and circumstances of the case,
confession cannot be said to be made by the appellants
voluntarily - As they were never found to be in possession of E
•
contraband, burden of proof never shifted on them - Evidence
Act, 1872 - s. 26.
Prosecution case was that police party received
information that accused persons were in possession of F
_drugs. The police party nabbed the accused persons and
brought them to the office of Superintendent of Police.
On physical search, nothing was found. They were
interrogated whereupon they allegedly disclosed that the
drugs were in possession of accused no.1. Police party
G
informed the custom officers. Appellants were taken into
~ custody by the police officers and handed over to
customs officers. Statements were made by the accused
persons under s.67 of the NDPS Act. A formal FIR was
839 H
840 SUPREME COURT REPORTS [2009] 7 S.C.R.
A lodged next day. All the accused persons were formally
arrested and subject to further interrogation, both the
appellants made their statement. Thereafter they were
produced before the Magistrate. The accused persons
retracted from their confession.
-
B
-
Trial court convicted them under ss.21, 28 and 29 of
theNarcotic Drugs and Psychotropic Substance Act, 1985.
High Court affirmed the same. Hence the appeals. It was
contended for the appellants that the purported state- ,.
ments were made by the appellants before the authorised
c officers while in custody and therefore same were hit u/
s.26 of Evidence Act, 1872.
Allowing the appeals, the Court
HELD: 1. The Narcotic Drugs and Psychotropic
D Substance Act, 1985 provides for stringent punishment.
Where a statute confers drastic power and provides for
stringent penal provisions including the matter relating
to grant of bail, the conditions precedent therefor must
be scrupulously complied with. [Para 11] (848-B-C]
E 2. An information was received by the police
authorities. The police officers were empowered officers
within the meaning of the provisions of the NDPSAct. They
were required to reduce the same into writing so as to
apprise the higher officers thereabout. No search warrant
F or authorisation was obtained. Some plain clothes
policemen were posted. A raid was conducted by S.I. , PW-
10. Appellants were taken in custody and brought to the
office of PW-9. Even then they were not asked to make
any statement. They were not even summoned. Their
G persons were searched without complying with the
provisions of Section 50 of the Act. They were evidently ..
interrogated. Only on interrogation they disclosed about
the address of accused No.1. In the aforementioned
situation, it is difficult to comprehend as to why the
H customs officers had to be informed. The police officers
RAJU PREMJI V 841
CUSTOMS NER SHILLONG UNIT
1 could themselves carry out the search and seizure. They A
being empowered therefor should have exercised their
own jurisdiction. Though customs officers may be
invested with the powers of an Officer lncharge of a Police
Station in terms of a Notification issued under Section 53
of the NDPS Act, but that does not mean, the police B
- ,;,
officers were denuded of their jurisdiction thereunder.
[Para 11] [848-C-G]
3.1. There was no logic on part of the police
authorities to transfer the case to the customs authorities.
It is admitted that appellants were taken to the village of c
the accused No.1 by the police officers including PWs. 9
and 10. Customs Officers joined them much later. Search
of the house of accused No.1 was not carried out by the
'
customs officers exclusively. All police officers present
joined in the search. Evidently the search was made after D
sunset. As information was received by PW-9 at about 6.30
pm; as is evident from the statement by him before the
Court he left the house of accused No.1 at about 10.00
p.m. while the customs officers were still carrying on some
other formalities. All four accused were brought to the E
police station for further interrogation and on the next date
the customs officers informed the police officers that both
of them were required to be arrested. It is at that time that
their custody was handed over to the customs officers.
PW-7 was the officer before whom the purported F
statements were made. There is nothing on record to
show that any summons were served on them. No such
summon was. brought on record. No deal was found to
have taken place. The accused persons and the informant
were only talking amongst themselves. He could not have
G
even heard their conversation. Admittedly the informant
J was not examined for which no explanation was offered.
Admittedly three statements were taken from each of the
accused. The first one was a narrative one. The second
was in question and answer form. The third statement was
H
842 SUPREME COURT REPORTS [2009] 7 S.C.R.
A taken admittedly after the formal First Information Report
was lodged. [Paras 12, 13, 14, 15] [848-H; 849-A-G]
3.2. It stands admitted that the officer concerned, PW-
7, thought that the accused could be examined times
without number unless they make replies to their
B satisfaction. An empowered officer, therefore, is entitled
to examine any person acquainted with the facts and
circumstances of the case, during the course of any
enquiry in connection with the contravention of any
provision of the Act. As the term 'enquiry' is not defined
k
-
c under the NDPS Act, its meaning assigned in Section 2(g)
of the Code of Criminal Procedure as also in an etymo-
logical sense and the manner may be held to be
applicable. [Paras 16, 18] (849-G; 850-D-F]
4.1. From the very beginning concededly the
D
appellants were in the police custody. They were put to
interrogation by the police officers. They were not free
persons. They were under orders of restraint and thus
would be in the custody of the police officers. Any statement
made by them while in custody of a police officer would be
E inadmissible in evidence in terms of Section 26 of the
Evidence Act, 1872. (Para 19] (850-F-G]
4.2. The customs officer as per the Notification issued
by the Central Government was an officer incharge of the
F police station. All powers available to an officer incharge
of a police station, therefore, were available to him. One of
the attributes of the power of an officer incharge is a power
to investigate into a commission of cognizable offence. He
can also file a charge sheet. [Para 20] (851-C-D]
G State of Punjab v. Baldev Singh (1999) 6 SCC 172;
Kanhaiyalal v. Union of India (2008) 4 SCC 668 - referred to.
5. Whether a confessional statement is voluntary and
free from any pressure must be judged from the facts and
circumstances of each case. In any event if they were in
H
RAJU PREMJI V. 843 '
CUSTOMS NER SHILLONG UNIT
~
custody of the police officers as also the customs officers, A
although they were not accused in strict sense of the term,
any confession made by them would not be admissible in
terms of Section 26 of the Evidence Act, 1872. The
confession was retracted by accused No.4 only after a few
' days. The Special Judge has taken into consideration the B
,
-·
- .,.
fact of such retraction. Taking into consideration the facts
and circumstances of the case, the confession cannot be
said to have been made by the appellants voluntarily. As
the appellants were not found to be in possession of the
contraband, the burden of proof never shifted on them. c
[Paras 23, 24, 26] [852-H; 853-A, E; 854-8-C]
Mohtesham Mohd. Ismail v. Sp/. Director, Enforcement
Directorate (2007) 8 SCC 254; Noor Aga v. State of Punjab
:1
and another 2008 (9) SCALE 681 ; Kochan Velayudhan v. State
o(Kera/a AIR 1961 Kerala 8 - referred to. D
~
Case Law Reference
(1999) 6 sec 112 referred to Para 21
(2008) 4 sec 668 referred to Para 22
E
(2007) 8 sec 254 referred to Para 23
2008 (9) SCALE 681 referred to Para 23
AIR 1961 Kerala 8 referred to Para 25
F
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1647 of 2007
From the Judgement and Order dated 06.09.2007 of the
Hon'ble High Court of Gauhati, Shillong Bench in Criminal
Appeal No. 4(SH) of 2006. G
+ WITH
Criminal Appeal No. 956 of 2009
U. U. Lalit, Debjani Das Purkaystha, Anu Gupta, Vikas
H
844 SUPREME COURT REPORTS [2009] 7 S.C.R.
A Mahajan, Vinod Sharma, Bhaskar Y. Kulkarni, with him for the
Appellant.
Shrabani Charkrabarty, Asha G. Nair, Anil Katiyar (for B.V.
Balaram Das), for the Respondent.
B The Judgement of the Court was delivered by
•
S.B. SINHA, J.
Leave granted.
-
1. These two appeals involving common questions of law
" ""
c and fact are directed against a judgment and order dated 6th
September, 2007 passed by a Division Bench of the Gauhati
High Court in Criminal Appeal Nos. 3(SH) of 2006 and 4 )SH)
of 2006 affirming a judgment of conviction and sentence dated
21st June, 2006 passed by the learned Special Judge, NDPS,
D Shillong in Criminal (NDPS) Case No.26/2003 whereby both ~
the appellants were convicted under Section 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short 'the
NDPS Act') and were sentenced to undergo rigorous
imprisonment for ten years each and to pay a fine of
E Rs.1,00,000/- each; in default of payment of fine, to further
undergo a rigorouis imprisonment for one year.
2. Appellant Raju Premji (A-4) was a resident of Shillong.
He, however, had been carrying on business in shoes in West
Bengal. Appellant Arun Kanungo (A-3), however, is a resident
F of Meghalaya. They along with two other accused, namely
Yashihey Yobin (A-1) and Lishihey Ngwazah Ngwazah (A-2) were
prosecuted for commission of offences under the NDPS Act.
3. Before placing on record the factual matrix of the matter,
G we may notice that whereas accused Nos. 1 and 2 have been
convicted for possession of 380 gms. of heroin, appellants
herein were convicted under Section 25 of the Act for abetment •
thereof as they purported to have associated themselves with
finding prospective buyers in disposing of the contraband.
H 4. The prosecution case in brief is that D. Pakyntein, PW-
RAJU ,PREMJI V. 845
CUSTOMS NER SHILLONG UNIT [S.B. SINHA, J]
i
11, an Inspector in the Office of the Commissioner of Customs, A
NER Shillong, received an information from Special Operation
Team of Meghalaya Police through N.K. Bhandari, PW-4, at
1
about 7.50 p.m. on 19 h August, 2003 that one Yasihey Yobin of
Oum Oum, Nogthymmai, accused No.1, had kept some heroin
at his residence and if a search is conducted immediately, the B
contraband may be recovered. Thereafter Pakyntein contacted
R.M. Chyne, Superintendent (PW-7), B. Kar, Inspector (PW-2)
and N.K. Bhandari, PW-4. All of them proceeded towards the
residence of accused No.1 to conduct the search. On reaching
there, they met the members of the Special Operation Team c
alongwith Yobin. After the particulars ofYobin were ascertained,
his house was searched in pre,sence of independent witnesses
R.V. Okha, PW-3 and 0. Khyriem, PW-8, in course whereof he
took out one suitcase wherein he had allegedly kept the packet
of heroin. However, no heroin was found therein. On interrogation
0
+- on the spot, Yobin informed that his brother-in-law, Lisihey
Ngwazah, accused No.2, must have removed the same. He
instructed his wife to contact him and ask him to come back
immediately with goods. Accused No.2 after sometimes turned
up with a black bag on his shoulder. On being asked, he opened
the bag and took out the contents thereof which included one E
suit case cover of camouflage, denim made of synthetic fabric
and one green polythene bag, on opening whereof, one plastic
packet containing white powder wrapped with two pieces of
~
English newspaper was recovered.
F
5. Indisputably, however, the information was received by
M. Kharkrang, Additional Superintendent of Police, PW-9, from
his source who informed that he had been offered to sell drugs
by some people and they have to meet him at Keating Road,
whereupon plain clothes policemen were posted, who nabbed
G
the appellants therefrom. They were brought to the office of the
+ Superintendent of Police. Physical search was made of the
appellants but nothing was found. They were interrogated
whereupon they allegedly disclosed that the drugs were in
possession of accused No.1.
H
846 SUPREME COURT REPORTS [2009) 7 S.C.R. ·
A At that point of time, the Customs Officers were informed.
Whereas the police officers reached the village of accused No.1
first, the Customs Officers joined them later.
6. Appellants herein were in the custody of the police .
officers since evening of 19th August, 2003. Their custody was
B handed over to the customs officers. flll
It is now borne out from the record that whereas all the
th
accused made two statements each on 20 August, 2003
purported to be under Section 67 of the Act. So far as accused
C No.4 is concerned the statements made by him were marked
as Exts 17 and 18 whereas those of the accused No.3 are
concerned, they were marked as Exts. 13 and 14. A formal first
1
information report was lodged only in the afternoon of 20 h
August, 2003. All the accused persons were formally arrested
at 4.30 p.m. They were subjected to further interrogation and
1
D both the appellants made a third statement on 21• August, 2003
which were marked as Exts. 19 and 15 respectively. They were
produced before the Magistrate on the same day.
Whereas accused No.4 retracted from his confession on
4th November, 2003, other accused including accused No.3
E retracted therefrom while making their statements under Section
313 of the Code of Criminal Procedure.
7. A charge sheet was filed against the appellants for
commission of offences under Section 21, 28 and 29 of the Act
1
F on 21• November, 2003. They were convicted, as stated
aforesaid. Appeal preferred by them before the High Court have
been dismissed by the reason of the impugned judgment.
Accused Nos. 1 and 2 have not preferred any appeal
before this Court against the judgment of the High Court.
G
8. Mr. U.U. Lalit, senior counsel and Mr. Vikas Mahajan,
Advocate, in support of these appeals would raise the following
contentions :-
a. The purported statements having been made by the
H appellants before the authorized officers while in
RAJU PREMJI V. 847
CUSTOMS NER SHILLONG UNIT [S.B. SINHA, J.]
-i
custody, the same were hit under Section 26 of the A
Evidence Act, 1872.
b. Keeping in view the fact that the accused were not
summoned to make any statement' and such
statements were made when they were in custody; .... B,
the same were wholly inadmissible in evidence. ·
c In any event, the appellants having retracted from
their earlier statements, no reliance could have been
"' placed thereupon in absence of any corroboration in
material particulars. c
d. Even if the statements made by the accused are
taken into consideration, they purported to have
offered sale of the contravention to one Bhiya Ji,,
who had not been put on trial, although summoned,
the impugned judgments are liable tc:i be set aside. D
t-
9. Ms. Shrabani Chakrabarty, learned counsel appearing
on behalf of the respondent, on the other hand, urged:-
a. Appellants having made statements before the
officers of the customs authorities who were not police E
officers in terms of Section 67 of the Act, bar.in regard
to inadmissibility of the statement as contained in
Section 26 of the Evidence Act, 1872 would not apply.
+ b Statements of the appellants having been
corroborated by the statements of other accused F
persons, the impugned judgment is unassailable.
c. Accused Nos. 1 and 2 having been found to be in
... possession of the contraband and the appellants
having been found to have abetted them in G
-4' commission of the crime, it was for them to offer
' f reasonable explanation in relation thereto.
10. Chapter Ill of the NDPS Act provides for prohibition,
control and regulation. Chapter IV provides for offences and
penalties. H
848 SUPREME COURT REPORTS [2009] 7 S. C.R.
A Section 8 of the Act inter alia prohibits certain operations,
except for the purposes mentioned therein. Section 21 provides
for punishment for contravention in relation to manufactured
drugs and preparations. Section 28 provides for punishment
for attempt to commit offences. Section 29 provides for
B punishment for abetment and criminal conspiracy.
11. The Act provides for stringent punishment. Where a
statute confers drastic power and provides for stringent penal
provisions including the matter relating to grant of bail, the "'
conditions precedent therefor must be scrupulously complied with.
c
An information was received by the police authorities. The
police officers were empowered officers within the meaning of
the provisions of the NDPS Act. They were required to reduce
the same into writing so as to apprise the higher officers
thereabout. No search warrant or authorisation was obtained.
D
Some plain clothes policemen were posted. In th13 own words i
of prosecution witnesses and particularly those of PWs. 9 and
10, M. Kharkrang, Additional Superintendent of Police, S.I. N.
Thapa, respectively, the appellants were nabbed. Raid was
conducted inter alia by S.I. N. Thapa, PW-10. They were taken
E in custody and brought to the office of PW-9. Even then they
were not asked to make any statement. They w1ere not even
summoned. Their persons were searched without complying
with the provisions of Section 50 of the Act. They were evidently
interrogated. Only on interrogation they disclosed about the
F address of accused No.1. In the aforementioned situation, it is
difficult to comprehend as to why the customs officers had to be
informed. The police officers could themselves carry out the
search and seizure. They being empowered therefor should
G
have exercised their own jurisdiction. Customs Officers, we
would assume, were invested with the powers of an Officer
...
lncharge of a Police Station in terms of a Notification issued
under Section 53 of the NDPS Act, but that does not mean, the
police officers were denuded of their jurisdiction thereunder.
12. Why the police authorities should have transferred the
-;
-
.....
H
RAJU PREMJI V. 849
CUSTOMS NER SHILLONG UNIT [S.B. SINHA, J.]
case to the customs authorities defies any logic. It is admitted A
that appellants were taken to Village Nonghymmai of which the
accused No.1 was 'a resident by the police officers including
PWs. 9 and 10. Customs Officers joined them much later. Search
of the house of accused No.1 was not carried out by the customs
officers exclusively. All police officers present joined in the B
search. Evidently the search was made after sunset. As
information was received by PW-9 at about 6.30 pm; as is
evident from the statement by him before the Court he left the
)( house of accused No.1 at about 10.00 p.m. while the customs
officers had still been carrying on some other formalities. All c
four accused were brought to the police station for further
interrogation and on the next date the customs officers informed
the police officers that both of them were required to be arrested.
It is at that time that their custody was handed over to the customs
officers.
D
13. PW-7, R.M. Chyne, indisputably was the officer before
whom the purported statements were made. There is nothing
on record to show that any summons were served on them. No
such summon had been brought on record.
14. It had been accepted that no deal was found to have E
taken place. The accused persons and the informant were only
talking amongst themselves. He could not have even heard their
conversation. Admittedly the informant was one Bhaiya Ji. He
had not been examined for which no explanation has been
• offered. F
15. Admittedly three statements were taken from each of
the accused. The first one was a narrative one. The second
was in question and answer form. The third statement was taken
admittedly after the formal First Information Report was lodged.
G
16. It stands admitted that the officer concerned, R.M.
r
t Chyne, PW-7, thought that the accused could be examined times
-- without number unless they make replies to their satisfaction.
17. The application of the provisions of Section 67 of the
H
850 SUPREME COURT REPORTS [2009] 7 S.C.R.
A Act is required to be considered in the aforementioned factual ,
backdrop. It reads as under :-
"Section 67 - Power to call for information, etc.
Any officer referred to in section 42 who is authorised in ·
B this behalf by the Central Government or a State
Government may, during the course of any enquiry in
connection with the contravention of any provisions of this
Act,-
(a) call for information from any person for the purpose of
c satisfying himself whether there has been any contravention
of the provisions of this Act or any rule or order made
thereunder;
(b) require any person to produce or deliver any document
or thing useful or relevant to the enquiry;
D
(c) examine any person acquainted with the facts and
circumstances of the case."
18. An empowered officer, therefore, is entitled to examine
any person acquainted with the facts and circumstances of the
E case, inter alia during the course .of any enquiry in connection
with the contravention of any provision of the Act. As the term
'enquiry' is not defined under the NDPS Act, its meaning
assigned in Section 2(g) of the Code of Criminal Procedure as
also in an etymological sense and the manner may be held to
F be applicable.
...
19. From the very beginning concededly the appellants
were in the police custody. They were put to interrogation by the
police officers. They were not free persons. They were under
G orders of restraint and thus would be in the custody of the police
officers. Any statement made by them while in custody of a police
officer would be inadmissible in evidence in terms of Section - ....
26 of the Indian Evidence Act, 1872, which reads as under :-
"26. Confession by accused while in custody of police not
H to be proved against him - No confession made by any
RAJU PREMJI V. 851
CUSTOMS NER SHILLONG UNIT [S.B. SINHA, J.]
person whilst he is in the custody of a police-officer, unless A
~
it be made in the immediate presence of a Magistrate,
shall be proved as against such person.
Explanation - In this section. "Magistrate" does not include
the head of,a village discharging magisterial functions in
the Presidency of Fort St. George br elsewhere, unless B
a
such headman is Magistrate exercising the powers of a
_.. Magistrate under the Code of Criminal Procedure, 1898
. (V of 1898)."
•
20. The customs officer as per the Notification issued by. c
the Central Government was an officer incharge of .the police
a
. station. All powers available to an officer incharge of police
· station, therefore, were available to him. One of the attributes of
the power of an officer incharge is a power to investigate into a
commission of cognizable offence. He can also file a charge
D
sheet. ·
21. A constitution Bench of this Court in State of Punjab v.
Baldev Singh, [(1999) 6 sec 172 ], held as under:-
"28. This Court cannot overlook the context in which the
NDPS Act operates and particularly the factor of E
widespread illiteracy among persons subject to
investigation for drug offences. It must be borne in mind
that severer the punishment, greater has to be the care
taken to see that all the safeguards provided in a statute
are scrupulously followed. We are not able to find any' F
reason as to why the empowered officer should shirk from
affording a real opportunity to the suspect, by intimating to
him that he has a right ''that. ifhe requires" to be searched
in the presence of a gazetted officer or a Magistrate, he
shall be searched only in that manner. As already observed G
the compliance with the procedural safeguards contained
t in Section 50 are intended to serve a dual purpose - to
protect a person against false accusation and frivolous
charges as also to lend creditability to the search and
seizure conducted by the empowered officer. The H
852 SUPREME COURT REPORTS [2009] 7 S.C.R.
A argument that keeping in view the growing drug menace,
an insistence on compliance with all the safeguards
contained in Section 50 may result in more acquittals does
not appeal to us. If the empowered officer fails to comply
with the requirements of Section 50 and an order or
B acquittal is recorded on that ground, the prosecution must
thank itself for its lapses. Indeed in every case the end
result is important but the means to achieve it must remain
above board. The remedy cannot be worse than the
disease itself. The legitimacy of the judicial process may
c come under a cloud if the court is seen to condone acts
of ~awlessness conducted by the investigating agency
during search operations and may also undermine respect
for the law and may have the effect of unconscionably
compromising the administration of justice. That cannot
be permitted."
D
22. We would, for this purpose, assume that such t
confessions are not hit with Section 25 of the Evidence Act,
1872 but even then they must receive strict scrutiny.
This Court in Kanhaiyalal v Union of India, [(2008) 4 SCC
E 668], upon taking into consideration number of decisions, held
as under:-
"43. The law involved in deciding this appeal has been
considered by this Court from as far back as in 1963 in
F Pyare Lal Bhargava case. The consistent view which has
been taken with regard to confessions made under
provisions of Section 67 of the NDPS Act and other .
criminal enactments, such as the Customs Act, 1962, has
been that such statements may be treated as confessions
for the purpose of Section 27 of the Evidence Act, but with
G
the caution that the court should satisfy itself that such
statements had been made voluntarily and at a time when
the person making such statement had not been made an
accused in connection with the alleged offence."
H 23. Whether a confessional statement is voluntary and free
RAJU PREMJI V. 853
CUSTOMS NER SHILLONG UNIT [S.B. SINHA, J.]
from any pressure must be judged from the facts and A
circumstances of each case.
This Court in Mohtesham Mohd. Ismail v. Sp/. Director,
Enforcement Directorate, [(2007) 8 SCC 254 ], has held as
under:-
B
"20. We may, however, notice that recently in Francis Stanly
v. Intelligence Officer, Narcotic Control Bureau,
Thiruvananthapuram this Court has emphasised that
... confession only if found to be voluntary and free from
pressure, can be accepted. A confession purported to c
.. have been made before an authority would require a closer
scrutiny. It is furthermore now well settled that the court
must seek corroboration of the purported confession from
independent sources."
In Noor Aga v. State of Punjab and another, [2008 (9) D
SCALE 681], this Court held:-
"102. Section 25 of the Evidence Act was enacted in
the words of Mehmood J. in Queen Empress v. Babula/
[ ILR (1884) 6 All. 509 ] to put a stop the extortion of
E
confession, by taking away from the police officers as the
advantage of providing such extorted confession during
the trial of accused persons. It was, therefore, enacted to
subserve a high purpose."
24. In any event if they were in custody of the police officers F
as also the customs officers, although they were not ac_cused in
strict sense of the term, any confession made by them would
not be admissible in terms of Secti.on 26 of the Evidence Act,
1872.
25. Leaned counsel has relied upon a decision of the G
Kerala High Court in Kochan Velayudhan v. State of Kera/a,
[AIR 1961 Kerala 8], wherein it was observed:-
"21. In Ramrao Ekoba v. The Crown, AIR 1951 Nag 237
Hemeon, J., held that:
H
854 SUPREME COURT REPORTS [2009] 7 S.C.R.
A "Although the failure to comply with the provisions regulating
1-.
searches may cast doubts upon the bona fide of the officers
conducting the search, there is nothing .in law which makes
the evidence relating to an irregular search inadmissible ·'
and a conviction based on such evidence is not invalid on
B that ground alone".
26. The confession was retracted by accused No.4 only
after a few days. The learned Special Judge has taken into
consideration the fact of such retraction. Taking into
consideration the facts and circumstances of the case, we are >
c of the firm opinion that confession cannot be said to have been
made by the appellants voluntarily.
As the appellants were not found to be in possession of
the contraband, the burden of prove never shifted on them.
D 27. For the reasons abovementioned these appeals are
allowed; The appellants are directed to be released forthwith if !-
not required in connection with any other case.
D.G. Appeals allowed.
-
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