Francis Stanly Alias Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram .

Markandey Katju, J.— This appeal has been filed against the impugned judgment of the Kerala High Court dated 5-4-2004 in Criminal Appeal No. 217 of 2002.

2. Heard learned counsel for the parties and perused the record.

3. The appellant was Accused 2 in the criminal case under the NDPS Act with which we are concerned.

4. The prosecution case briefly stated is that on 1-10-2000 at 3.45 p.m, PW 7, Radhesh, Intelligence Officer, received information that one person was standing in the parking area between Gandhi Park and Pattomthanu Pillai Park at East Fort, Thiruvananthapuram waiting for somebody to dispose of about one kilogram of heroin which was in his possession. PW 7 recorded the information and submitted Ext. P-10 report to PW 5, the Superintendent, Narcotic Control Bureau Regional Intelligence Unit, Thiruvananthapuram. PW 7 along with the informant proceeded to the place where the 1st accused was waiting and the 1st accused was shown to PW 7 by the informant. PW 5 along with PW 4 and PW 6 reached near Pattomthanu Pillai Park at about 4.30 p.m and PW 7 pointed out the 1st accused to them. PWs 4, 5 and 6 along with the witnesses approached the accused who was holding M.O 2(a) bag. PWs 4 to 6 disclosed their identity and expressed their desire to search the 1st accused. He was also informed of his right to be searched in the presence of a gazetted officer or a Magistrate. The 1st accused waived the right and expressed his willingness to be searched by the officers. When PW 1 asked the 1st accused whether he was possessing any narcotic drug, the 1st accused handed over M.O 2(a) bag to PW 4. The bag was found to contain M.O 2(d) white full shirt and a bundle of M.O 2(b) and M.O 2(c) lungies. When the lungies were removed, a transparent polythene cover containing brownish powder was recovered. PW 4 opened the polythene packet and took a pinch of the powder and tested it with a Field Drug Detection Kit. Since the test gave positive result, PW 4 seized the narcotic drug. The polythene cover and the drug were found to weigh 1.110 kilograms. Two samples were taken and the samples were separately packed and sealed. The remaining drug was also separately packed and sealed. PW 4 prepared Ext. P-1 mahazar. At the request of PW 4, PW 6 served Ext. P-2 summons on the 1st accused directing him to appear in the NCB office at 7 p.m on the same day. Since the 1st accused did not know the place, PW 7 was asked to accompany the 1st accused to the NCB office. In obedience to the summons the 1st accused appeared before the NCB office and gave Ext. P-12 statement in Tamil which was recorded by PW 6. Thereafter PW 6 arrested the 1st accused. On the next day the 1st accused was produced before the Magistrate who remanded him to the sub-jail. Since the name of the 2nd accused was also mentioned in Ext. P-12 statement, PW 5 proceeded to Idinthikara of Thirunalveli District on the morning of 2-10-2000 and Ext. P-15 summons was served on the 2nd accused directing him to appear before the NCB office at Thiruvananthapuram at 5 p.m on that day. The 2nd accused appeared before the NCB office in the evening and gave Ext. P-16 statement in his own handwriting. PW 6 arrested the 2nd accused. The 2nd accused was also produced before the Magistrate, who remanded him to the sub-jail. The investigation was handed over to PW 7. The samples were sent to the Customs Laboratory, Cochin and Ext. P-5 report was obtained. After completing the investigation, PW 7 lodged the complaint before the court.

5. The accused denied the charge. Thereupon the prosecution examined PWs 1 to 7, marked Exts. P-1 to P-20 and identified M.Os 1 to 4. After the close of the prosecution evidence the accused were examined under Section 313 CrPC. They denied the prosecution evidence and pleaded that they were innocent.

6. A perusal of the facts of the case would show that there is no allegation that the appellant himself was found in possession of any narcotics. The allegation was only that he handed over some narcotics to Accused 1. The only evidence against the appellant is the retracted statement of Accused 1 and the appellant's own retracted confession.

7. In Chonampara Chellappan v. State of Kerala (1979) 4 SCC 312, AIR 1979 SC 1761 it has been held (in that:

“It is equally well settled that one tainted evidence cannot corroborate another tainted evidence because if this is allowed to be done then the very necessity of corroboration is frustrated.”

8. In para 5 of the same judgment this Court relied on a decision in Piara Singh v. State of Punjab (1969) 1 SCC 379, (1969) 3 SCR 236 in which it was observed: (Chonampara Chellappan case (1979) 4 SCC 312, AIR 1979 SC 1761)

“An accomplice is undoubtedly a competent witness under the Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.”

9. Thus, it appears from the above decision that there is some taint in the evidence of an accomplice, and the reason for this obviously is that an accomplice's evidence is looked upon with suspicion because to protect himself he may be inclined to implicate the co-accused.

10. We make it clear that we are not of the opinion that the evidence of the accomplice can never be relied upon, since such evidence is admissible under Section 133 of the Evidence Act. However, Section 133 has to be read along with Section 114(b) of the Evidence Act, and reading them together the law is well settled that the rule of prudence requires that the evidence of an accomplice should ordinarily be corroborated by some other evidence vide Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80, AIR 1994 SC 2420.

11. Learned counsel for the respondent relied upon a decision of this Court in M. Prabhulal v. Asstt. Director, Directorate of Revenue Intelligence (2003) 8 SCC 449 wherein it has been held that if the confessional statement is found to be voluntary and free from pressure, it can be accepted. This is no doubt true, but it all depends on the facts and circumstances of each case and no hard-and-fast rule can be laid down in this connection whether a particular alleged confessional statement should be accepted.

12. Learned counsel for the respondent then relied upon a decision of this Court in T. Thomson v. State of Kerala (2002) 9 SCC 618 wherein it was held that the confession in question was voluntary. In this connection we reiterate that it all depends on the facts and circumstances of each case, and no hard-and-fast rule can be laid down as to when a confession can be regarded as voluntary and when it should not.

13. In State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 (vide this Court observed:

“A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances can such a conviction be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars.”

14. It is true that in the present case the confession was made by the accused not before an ordinary police officer, but before an officer under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) who is an officer of the Department of Revenue Intelligence, and it is held by this Court in Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 that such a confession is not hit by Section 25 of the Evidence Act.

15. We are of the opinion that while it is true that a confession made before an officer of the Department of Revenue Intelligence under the NDPS Act may not be hit by Section 25 in view of the aforesaid decisions, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act. Hence the alleged confession made by the same appellant must be subjected to closer scrutiny than would otherwise be required.

16. We have carefully perused the facts of the present case, and we are of the opinion that on the evidence of this particular case it would not be safe to maintain the conviction of the appellant, and he must be given the benefit of reasonable doubt.

17. We make it clear that we are not laying down any general principle in this case, and are deciding it only on the particular facts and circumstances of this case. Hence, this case cannot be a precedent for other cases which may be on their own facts.

18. We are informed that the appellant has already undergone more than six years' imprisonment.

19. On the facts and circumstances of the case, we allow this appeal and set aside the orders of the courts below. The appellant who is in jail shall be set free forthwith unless required in connection with some other case.