2023INSC852 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1136 OF 2014

BALWINDER SINGH (BINDA) ….….. APPELLANT

VERSUS

THE NARCOTICS CONTROL BUREAU .…….. RESPONDENT

With

CRIMINAL APPEAL NO. 1933 OF 2014

SATNAM SINGH ….….. APPELLANT

VERSUS

THE NARCOTICS CONTROL BUREAU …….. RESPONDENT

J U D G E M E N T

HIMA KOHLI, J.

1. The present appeals arise from the common judgment dated 08

th July, 2013

passed by the Division Bench of the High Court of Punjab and Haryana at Chandigarh

deciding the Murder Reference

1 prepared by the Judge, Special Court for confirmation of

death sentence, appeal

2 preferred by Balwinder Singh

3 and the appeal

4 filed by Satnam

Singh

5.

1

Murder Reference No. 5 of 2012 titled Narcotics Control Bureau, Chandigarh Zonal Unit v. Balwinder Singh @ Binda

2

CRA No. D-365-DB of 2012

3

Appellant in Criminal Appeal No. 1136 of 2014

4

CRA No. D-371-DB of 2012

5

Appellant in Criminal Appeal No. 1933 of 2014

REPORTABLE

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1.1 By the impugned judgment, the death sentence imposed upon Balwinder Singh

3

was set aside under the Reference, thereby declining the Reference and imposed a

sentence on him to undergo rigorous imprisonment for 14 years and to pay a fine of

₹1,50,000/- [Rupees one lakh fifty thousand only] and in default, to undergo rigorous

imprisonment for one year for commission of offence under Section 21(c) of the Narcotic

Drugs and Psychotropic Substances Act, 1985

6. The appeals preferred by the accused

were dismissed except for the modification in the order of sentence. Both the accused

are before this Court in these appeals by way of special leave.

I. FACTUAL MATRIX:

(a) THE INCIDENT IN QUESTION

2. The incident in question relates back to 11

th December, 2005, when as per the

version of the prosecution, the Narcotics Control Bureau

7 received secret information

that some persons who were indulging in the sale of contraband, were travelling in a

white coloured Indica car from Amritsar to supply contraband at a bus stand at

Chandigarh. On 12

th December, 2005, at 01:00 am, a naka was laid by the NCB team at

Chandigarh and two independent witnesses [Mukesh Kumar and Sonu

8] were

associated in the investigation. At 03:15 am, the NCB team noticed that a car

9 coming

from Sector 25 and heading towards Sector 24, Chandigarh, stopped at a little distance

from the place of naka and two persons wearing turbans alighted from the car and ran

6

For short ‘NDPS Act’

7

For short ‘NCB’

8

PW-1

9

White coloured Indica Car bearing registration number HR-01-J-9639 (Marked as P-1)

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away. However, the third person, also wearing a turban who had later on disclosed his

name as Satnam Singh

5, remained seated in the car.

2.1. Members of the NCB team intercepted the vehicle and searched Satnam Singh

5

in the presence of the independent witnesses. On searching the car, they found two

packets wrapped in a khaki tape in the cavity of the door panel. On unzipping the seat

cover of the rear back seat of the vehicle, two more similar packets wrapped in khaki

tape were recovered. The prosecution claims that on inquiry, Satnam Singh

5 disclosed

that the packets contained heroin that he had brought from Amritsar with the assistance

of Balwinder Singh

3 and a person named Harpreet Singh alias Preet alias Sarpanch for

sale in Chandigarh. He further disclosed that Balwinder Singh

3 and Sarpanch ran away

when the car had stopped a few yards before the naka. The NCB officers seized all the

four packets and after taking out two representative samples, sealed them. The samples

of the packets were signed by Satnam Singh

5, the two independent witnesses,

Intelligence Officer - Balwinder Kumar

10 and O.P. Sharma, Superintendent, NCB

11.

(b) THE INVESTIGATION

2.2. A panchnama

12 in respect of the recovery made was prepared at the spot, read

over to Satnam Singh

5 who signed it. So did the independent witnesses. Thereafter,

Satnam Singh

5 was arrested and his statement

13 was recorded after issuing him a

notice

14 under Section 67 of the NDPS Act. He was also searched personally. The

10

PW-2

11

PW-5 (wrongly mentioned as PW-10 in the trial Court judgement)

12

Exhibit P-1/E

13

Exhibit PW-1/B

14

Exhibit P-5

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statements of the independent witnesses [Sonu

15 and Mukesh

16] were recorded. Satnam

Singh

5 was produced before the Illaqa Magistrate with the case property

17 and the

documents. The case property was handed over to the Superintendent Incharge of the

godown and the parcels of the samples

18 were sent to the Chemical Examiner

19 who

forwarded the report

20 later on.

2.3. Till this stage, the co-accused named by Satnam Singh

5, i.e., Balwinder Singh

3

was nowhere in the picture. The prosecution claims that sometime later, the NCB

officers came across a newspaper report stating that Balwinder Singh

3 had been

arrested by Amritsar Police in an NDPS case and was lodged in the Central Jail,

Amritsar. Based on the said information, Balwinder Singh

3 was arrested and a notice

21

was served on him under Section 67 of the NDPS Act. Thereafter, his voluntary

statement

22 was recorded and duly signed by him and he was arrested.

2.4 On conclusion of the investigation, the NCB submitted a complaint

23 before the

Judge, Special Court, Chandigarh stating that Satnam Singh

5 and Balwinder Singh

3 had

committed offences punishable under Sections 8, 21, 27A and 60 of the NDPS Act.

Charges were framed against the two accused under Section 21 r/w Sections 8, 27A and

60 of the NDPS Act. On 02

nd July, 2007, both the accused pleaded not guilty and

claimed trial.

15

Exhibit PW-1/D

16

Exhibit P-9

17

Exhibit P-1

18

Exhibit P-12

19

Chemical Examiner Shri. S.K. Mittal, PW-4

20

Exhibit P-11

21

Exhibit P - 6

22

Exhibit – P-17

23

Exhibit P-13

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(c) PROCEEDINGS BEFORE THE TRIAL COURT

2.5. On its part, the NCB examined five witnesses namely Sonu

8 who was an

independent witness and joined the investigation when the naka was laid on 12

th

December, 2005; Constable Balwinder Singh

10 whose deposition related to deposit of

the samples

18 of the contraband with the Central Revenue Control Laboratory, Delhi

24;

P.K. Sharma

25, the then Intelligence Officer, NCB who had received the secret

information based on which the naka was laid and Satnam Singh

5 was arrested; S.K.

Mittal

19, the Chemical Examiner who deposed about receiving the sample in the Narcotic

Section of the CRCL, New Delhi from the PW- 2

10 and his report

20 dated 24

th February,

2006 to the effect that on testing, the sample was found positive for heroin and

contained 73.5% of dialectical Morphine by weight and O.P. Sharma

11, Superintendent,

NCB who narrated the sequence of events leading to the laying of the naka, search of

the Indica car being driven by the accused Satnam Singh

5 wherefrom the contraband

was recovered, preparation of Recovery-cum-Seizure Memo

26 and forwarding of the

seized contraband to Delhi for a chemical analysis

27, ending with the receipt of the

report

20 of the Chemical Examiner

19.

2.6. After the prosecution closed its evidence, both the accused were examined under

Section 313 of the Criminal Procedure Code

28. They denied the charges levelled against

them, pleaded not guilty and alleged false implication in the case. In their defence, the

24

For short, the CRCL, New Delhi’

25

PW 3

26

Exhibit PW-1/C

27

Exhibit PW-1/A

28

For short ‘Cr.P.C’

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accused examined four witnesses, namely, Soravdeep Singh

29; Naresh Kumar

30;

Parkash Ram

31 and Ravi Kant Pawar

32. DW-1

29 and DW-2

30 were summoned by

Satnam Singh

5 to prove that a call for 27 seconds was made by him from his mobile

number at 9.45 p.m. on 11

th December, 2005 to a landline number installed in the office

of the Zonal Director in Chandigarh, when he was actually in police custody.

2.7. It was argued on behalf of the applicants that PW-1 – Sonu

8 was the real culprit

from whom recovery of heroin was made and he had managed to bribe the officers of

the NCB team due to which they planted the contraband in the car driven by Satnam

Singh

5. It was also contended on behalf of Satnam Singh

5 that one of the two

independent witnesses, namely, Mukesh Kumar, was a stock witness of NCB and was

on its pay rolls as a daily wager. The testimonies of DW-3

31 and DW-4

32 was referred to,

wherein it was deposed that Mukesh Kumar was joined in as a witness in another

complaint registered by the NCB.

2.8. After discussing the entire evidence, vide judgment dated 10

th March, 2012, the

learned Judge, Special Court, Chandigarh held both the accused guilty and convicted

them under Section 21 read with Section 8 of the NDPS Act. Subsequently, on 15

th

March, 2012, after hearing arguments on the quantum of sentence, noting that Balwinder

Singh

3 had been previously convicted under Section 21(c) of the NDPS Act for the

offence involving commercial quantity of narcotic drugs and applying the provisions of

29

DW 1

30

DW 2

31

DW 3

32

DW 4

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Section 31A of the NDPS Act, he was sentenced to death under Section 21(c) read with

Section 31A(1a) of the NDPS Act.

2.9. Coming to the co-accused Satnam Singh

5, the learned Judge, Special Court,

Chandigarh took note of the fact that he was a government servant working as a Warden

in Punjab Jail and was posted at Sangrur at the time of committing the offence, which

added to the gravity of the offence. Therefore, he was sentenced under Section 21(c) of

the NDPS Act to undergo rigorous imprisonment for a period of twelve years and to pay

a fine of ₹1,50,000/- (Rupees One lakh and fifty thousand) and in default thereof to

further undergo rigorous imprisonment for a period of three years.

(d) PROCEEDINGS BEFORE THE HIGH COURT

3. Aggrieved by the aforesaid judgment, both the appellants approached the High

Court. A Murder Reference under Section 366 Cr.P.C. was also forwarded to the High

Court in view of the death sentence awarded by the Special Court, Chandigarh to the

appellant – Balwinder Singh

3. The entire evidence was analysed afresh by the High

Court and relying on the decisions of this Court in Kanhaiyalal vs. Union of India

33,

Ram Singh vs. Central Bureau of Narcotics

34 and Raj Kumar Karwal vs. Union of

India

35 wherein, it was held that an order of conviction can be passed solely on the basis

of the confession made by the accused under Section 67 of the NDPS Act and that such

a confession before the officer of the NCB was admissible in evidence since the NCB

officer is not considered as a “police officer” within the meaning of Section 25 of the

33

2008 (4) SCC 668

34

(2011) 11 SCC 347

35

(1990) 2 SCC 409

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Indian Evidence Act, 1872, both the appellants were convicted under the NDPS Act.

For arriving at the said conclusion, the High Court took into consideration the statements

of Balwinder Singh

3 and Satnam Singh

5 recorded under Section 67 of the Act and held

them to be admissible in evidence for being used as confession against them. The

deposition of the prosecution witnesses, namely, PW-1

8, PW-2

10 and PW-5

11, who had

searched the car of Satnam Singh

5 that had resulted in the recovery of 4 kgs. of heroin,

was also relied on by the High Court and it was observed that Satnam Singh

5

was

apprehended by the NCB Officers in the vehicle in question and there was sufficient

evidence to hold that he was guilty of possession of 4 kgs. of heroin.

3.1. Similarly, in the case of Balwinder Singh

3, the High Court held that his

confession

19 recorded under Section 67 of the NDPS Act was admissible in view of the

law laid down by this Court in Kanhaiyalal

33 (supra). The Court noted that neither

Satnam Singh

5 nor Balwinder Singh

3 had moved any formal application for retracting the

confessions made and there was no reason to discard their confessional statements or

to reject the testimonies of the prosecution witnesses [PW-1

8, PW-2

10 and PW-5

11]. Even

though Balwinder Singh

3 was not identified by PW-3

25 and PW-5

11, his statement

22 was

duly recorded under Section 67 of the NDPS Act and the co-accused, Satnam Singh

5

had also stated in his confessional statement that Balwinder Singh

3 was involved in the

crime. Both the confessional statements when read together, were held to be sufficient

to hold that Balwinder Singh

3 was guilty of the offence committed. Added to this was the

fact that Balwinder Singh

3 had already been convicted and sentenced in a case under

the NDPS Act and his appeal against the said conviction was pending at that time in the

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High Court. Therefore, he had a propensity towards committing such crimes. The High

Court opined that merely because Balwinder Singh

3 had escaped from the car just

before the point where the naka had been laid and could not be apprehended, would not

be a ground to acquit him or exonerate him of the charge of conscious possession of

heroin.

3.2. The High Court went on to reject the defence version sought to be projected by

Satnam Singh

5 that Sonu

8 [PW-1] was the real culprit and it was from him that the

contraband was recovered but he got away by bribing the NCB team who cleverly

planted the contraband in the car driven by Satnam Singh

5. The plea taken that the other

independent witness, Mukesh Kumar though arrayed as a prosecution witness and not

produced, was a stock witness of the NCB, was also found to be meritless. The High

Court observed that Mukesh Kumar was not examined during the trial since he had been

won over by the appellants. As a result of the aforesaid discussion, both, Balwinder

Singh

3 and Satnam Singh

5 were found to be in conscious possession of commercial

quantity of heroin on the relevant date and the findings returned by the trial Court holding

them guilty of the commission of offences punishable under Section 21(c) read with

Section 8 of the NDPS Act, were upheld. The order of sentence imposed on Satnam

Singh

5 of rigorous imprisonment for a period of 12 years was affirmed by the High Court.

However, the death penalty awarded to the appellant – Balwinder Singh

3 for being a

repeat offender under Section 31A of the NDPS Act, was held to be too harsh a

punishment. Resultantly, the death sentence awarded to Balwinder Singh

3 was set aside

and the High Court sentenced him to undergo rigorous imprisonment for a period of 14

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years along with fine of ₹1,50,000/- [Rupees one lakh fifty thousand only] and in default

of payment of fine, suffer imprisonment for one year. Dissatisfied by the aforesaid

decision, the appellants have preferred the present appeals.

II ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE PARTIES

(a) SUBMISSIONS MADE BY COUNSEL FOR BALWINDER SINGH

3 AND

SATNAM SINGH

5

4. Mr. Mayank Dahiya, learned counsel for the appellant – Balwinder Singh

3, argued

that his client had been convicted solely on the basis of the purported statement of

confession made by the co-accused, Satnam Singh

5 before the NCB officials which is no

longer admissible in law, in the light of the decision of this Court in the case of Tofan

Singh v. State of Tamil Nadu

36. It was stated that the High Court was swayed by the

fact that at that time, Balwinder Singh

3 was facing three other cases for offences under

the NDPS Act but subsequently, he has been acquitted in all the said cases on being

extended benefit of doubt. However, in the instant case, he has already undergone the

sentence awarded by the High Court during the pendency of the present appeal.

4.1. Besides a similar argument advanced by learned counsel for Balwinder Singh

3

that the statement of confession made by Satnam Singh

5 before the NCB officials is not

admissible in law and could not be read in evidence against him in view of the recent

decision of this Court in Tofan Singh

36 (supra), Mr. Akshay Nagarajan, learned counsel

for the said appellant has assailed the impugned judgement primarily on five counts.

Firstly, that an offence committed under the NDPS Act being a grave one, all the

36

(2021) 4 SCC 1

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procedural safeguards provided under the Statute to the accused require strict

compliance and strict scrutiny and in the instant case, as the prosecution failed to

establish a prima facie case, the burden did not shift to the accused. To buttress the said

submission, learned counsel has cited Ritesh Chakarvarti v. State of M.P.

37; Noor Aga

v. State of Punjab and Another

38; Bhola Singh v. State of Punjab

39; State of Delhi v.

Ram Avatar alias Rama

40; and Gorak Nath Prasad v. State of Bihar

41.

4.2 The second plea taken is that the entire story setup by the prosecution is shaky

inasmuch as the independent witnesses who were joined in, have a murky background

and their testimonies ought to be disbelieved. The testimony of Sonu

8 has been

questioned as untrustworthy and it is stated that he could not be treated as an

independent witness in terms of Section 100(4) of the Cr.P.C. It was contended that the

High Court has erred in failing to re-evaluate the credibility of the said witness and satisfy

itself as to whether he was in fact an independent witness. Thirdly, it was argued that

the other independent witness, Mukesh Kumar was arrayed in the list of witnesses but

not examined by the prosecution for the reason that he was a stock witness, as would

emerge from the deposition of DW-3

31 and DW-4

32. Next, it was argued that the case

property

17, mainly the contraband that was allegedly recovered, was not handled

properly which is apparent from the fact that in the panchnama

12 the contraband was

described as a substance that was white in colour but in his testimony, the Chemical

37

(2006) 12 SCC 321

38

(2008) 16 SCC 417

39

(2011) 11 SCC 653

40

(2011) 12 SCC 207

41

(2018) 2 SCC 305

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Examiner

19, described the contraband to be of light brown colour with lumps. This

discrepancy in the contraband pointed out by the defence goes to the root of the matter.

4.3 Lastly, it was argued on behalf of Satnam Singh

5 that the High Court ought not to

have discarded outright the defence version that it was Sonu

8 [PW-1] who was found to

be in possession of the contraband and on his bribing the NCB officers, he was let off

whereas Satnam Singh

5, who was innocent, was framed. Learned counsel submitted

that the deposition of DW-2

30 proved that the landline number on which a phone call was

made by the NCB officers from the mobile phone of Satnam Singh

5 at 09.45 pm on 11

th

December, 2005, was the official number belonging to the Zonal Director, NCB,

Chandigarh and the said evidence once brought on record, was sufficient for the High

Court to have discounted the version of the NCB that they had met Satnam Singh

5 for

the first time at the naka on 12

th December, 2005, at 03.00 am. Learned counsel

concluded by submitting that though Satnam Singh

5 has already undergone the

sentence imposed on him, he is pressing the appeal for an acquittal on merits because

the appellant was a Government servant who was dismissed from service on having

been convicted which order, if reversed, would entitle him to relief in relation to his

service benefits.

(b) SUBMISSIONS MADE BY LEARNED COUNSEL FOR THE RESPONDENT,

NCB

5. On the other hand, learned counsel for the respondent-NCB has supported the

impugned judgement and stated that there was ample evidence brought on record by the

NCB for indicting Balwinder Singh

3 and Satnam Singh

5. He asserted that none of the

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witnesses produced by the NCB were planted, as alleged; that NCB had successfully

established a prima facie case against the appellants whereafter the burden had shifted

on them to prove their innocence and that they had miserably failed to discharge the said

burden; that the prosecution had amply proved the foundational facts to attract the

rigours of the NDPS Act and the actus reus, namely possession of contraband by the

appellants was convincingly established for holding them guilty of the offence for which

they were charged. It was thus stated that the impugned judgement does not deserve

interference.

III ANALYSIS AND DISCUSSION

(a) SIGNIFICANCE OF TOFAN SINGH’S DECISION

6. We have perused the impugned judgement and the records and given our

thoughtful consideration to the arguments advanced by learned counsel for the parties.

7. When the present matter was considered by the High Court in the year 2013, it

had accepted the arguments advanced by learned counsel for the respondent-NCB that

officers of the Department of Revenue Intelligence who are vested with the powers of an

officer-in-charge of the police station under Section 53 of the Act, are not “police officers”

within the meaning of Section 25 of the Evidence Act and therefore held that a

confessional statement of a person accused of an offence under the NDPS Act recorded

by such an officer in the course of investigation, is admissible against him. The said

argument had found favour with the High Court in the light of the decisions of this Court

in Kanhaiyalal

33 (supra) and Raj Kumar Karwal

35 (supra) where it was held that a

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confession made by the accused before an officer of the NCB, is admissible in evidence

because the said officer cannot be treated as a “police officer” within the meaning of

Section 25 of the Evidence Act. It was further held that a conviction can be maintained

on the sole confession made by an accused under Section 67 of the NDPS Act. A similar

view taken by this Court in Ram Singh

34 (supra), was cited by the High Court to fortify its

decision that the confessions made by the appellants herein before the officers of the

NCB were admissible in evidence, being of voluntary nature.

8. However, much water has flown under the bridge since the year 2013. In the

year 2020, a three-judges Bench of this Court answered a Reference Order of a Division

Bench in Tofan Singh v. State of Tamil Nadu

42 and re-examined the ratio of

Kanhaiyalal

33 (supra) and Raj Kumar Karwal

35 (supra) to decide as to whether the

officer investigating a matter under the NDPS Act would qualify as a ‘police officer’ or

not. The other related issue which was examined by the larger Bench in Tofan Singh

36

(supra) was whether the statement recorded by the investigating officer under Section 67

of the NDPS Act can be treated as a confessional statement or not even if the officer is

not treated as a “police officer”.

9. After a detailed examination of the legal position in the light of the provisions of

the NDPS Act, vis-à-vis revenue Statutes like the Customs Act, 1962 and the Central

Excise Act, 1944 as also the Cr.P.C and Section 25 of the Evidence Act, the majority

decision authored by Justice Nariman, arrived at the following conclusion:

42

(2013) 16 SCC 31

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“155. Thus, to arrive at the conclusion that a confessional statement made before

an officer designated under Section 42 or Section 53 can be the basis to convict a

person under the NDPS Act, without any non obstante clause doing away with

Section 25 of the Evidence Act, and without any safeguards, would be a direct

infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21

of the Constitution of India.

156. The judgment in Kanhaiyalal [Kanhaiyalal v. Union of India, (2008) 4 SCC 668 :

(2008) 2 SCC (Cri) 474] then goes on to follow Raj Kumar Karwal [Raj Kumar

Karwal v. Union of India, (1990) 2 SCC 409 : 1990 SCC (Cri) 330] in paras 44 and

45. For the reasons stated by us hereinabove, both these judgments do not state

the law correctly, and are thus overruled by us. Other judgments that expressly refer

to and rely upon these judgments, or upon the principles laid down by these

judgments, also stand overruled for the reasons given by us.

157. On the other hand, for the reasons given by us in this judgment, the judgments

of Noor Aga [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri)

748] and Nirmal Singh Pehlwan v. Inspector, Customs [Nirmal Singh

Pehlwan v. Inspector, Customs, (2011) 12 SCC 298 : (2012) 1 SCC (Cri) 555] are

correct in law.

158. We answer the reference by stating:

158.1. That the officers who are invested with powers under Section 53 of the

NDPS Act are “police officers” within the meaning of Section 25 of the

Evidence Act, as a result of which any confessional statement made to them

would be barred under the provisions of Section 25 of the Evidence Act, and

cannot be taken into account in order to convict an accused under the NDPS

Act.

158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used

as a confessional statement in the trial of an offence under the NDPS Act.”

[emphasis laid]

10. In view of the aforesaid decision that declares that any confessional statement

made by an accused to an officer invested with the powers under Section 53 of the

NDPS Act, is barred for the reason that such officers are “police officers” within the

meaning of Section 25 of the Evidence Act, a statement made by an accused and

recorded under Section 67 of the NDPS Act cannot be used as a confessional statement

in the trial of an offence under the NDPS Act.

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(b) EFFECT OF TOFAN SINGH’S VERDICT ON BALWINDER SINGH’S CASE

11. Now that it has been declared in Tofan Singh’s case

36 (supra) that the

judgements in the case of Kanhaiyalal

33 (supra) and Raj Kumar Karwal

35 (supra) did

not state the correct legal position and they stand overruled, the entire case set up by

the prosecution against Balwinder Singh

3, collapses like a House of cards. It is not in

dispute that Balwinder Singh

3 was not apprehended by the NCB officials from the spot

where the naka was laid and that Satnam Singh

5 alone was apprehended in the Indica

car. The version of the prosecution is that after Satnam Singh

5 was arrested, his

statement

13 was recorded under Section 67 of the NDPS Act wherein he ascribed a

specific role to the co-accused - Balwinder Singh

3 and the Sarpanch. The NCB officers

claimed that they were on the lookout for both of them since they had managed to run

away from the spot. While Sarpanch could not be apprehended, the NCB officers learnt

from reports in the newspaper that Balwinder had been arrested by the Amritsar Police

in an NDPS case and was lodged in the Central Jail, Amritsar. Permission was taken

from the concerned Court to take Balwinder Singh

3 into custody in the instant case and

he was arrested. A notice

21 was served on him under Section 67 of the NDPS Act and

his statement

22 was recorded. Treating his statement

22 as a confessional statement,

Balwinder Singh

3 was arrested.

12. Once the confessional statement

13 of the co-accused, Satnam Singh

5 recorded

by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to

Balwinder Singh

3 and the subsequently recorded statement

22 of Balwinder Singh

3

himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in

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Page 17 of 25

Tofan Singh

36 (supra), there is no other independent incriminating evidence that has

been brought to the fore by the prosecution for convicting Balwinder Singh

3 under the

NDPS Act. On ignoring the said confessional statements

13&22 recorded before the

officers of the NCB in the course of the investigation, the vital link between Balwinder

Singh

3 and the offence for which he has been charged snaps conclusively and his

conviction order cannot be sustained.

13. As a result of the above discussion, we are of the opinion that Balwinder Singh

3

deserves to be acquitted of the charge of being in conscious possession of commercial

quantity of heroin under the NDPS Act. Ordered accordingly.

(c) HOW IS SATNAM SINGH’S CASE PLACED ON A DIFFERENT FOOTING

14. We next come to the case of the appellant, Satnam Singh

5. Again, as in the case

of Balwinder Singh

3, the statement

13 made by Satnam Singh

5 and recorded under

Section 67 of the NDPS Act will have to be discarded outright as it cannot be used as a

confessional statement having been recorded by the NCB officials who, in terms of the

verdict in Tofan Singh’s case

36 (supra) are to be treated as “police officers” under the

provisions of Section 25 of the Evidence Act. But unlike the case of Balwinder Singh

3,

the conviction of Satnam Singh

5 does not hinge solely on his confessional statement

13

made to the NCB officials. His case is on a different footing because it also rests on

other relevant factors including the testimonies of three prime prosecution witnesses

namely, Sonu

8 [PW-1], P.K. Sharma

25 [PW-3] and O.P. Sharma

11 [PW-5]. We propose

to discuss below that their testimonies when examined carefully, show that they had

Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014

Page 18 of 25

remained consistent and unfailing. There appear no material contradictions or

deviations in their depositions for this Court to extend any benefit to the appellant –

Satnam Singh

5.

(d) “PROOF BEYOND REASONABLE DOUBT VIS-À-VIS “PREPONDERANCE OF

PROBABILITY” : LEGAL POSITION

15. We may first test on the anvil of settled law, the plea taken by learned counsel for

the appellant – Satnam Singh

5 that the prosecution had failed to establish a prima facie

case against the accused and therefore, the burden of proving his innocence did not shift

back to him. In the case of Noor Aga

38 (supra), a two-Judges Bench of this Court was

required to decide several questions, including the constitutional validity of the NDPS Act

and the standard and extent of burden of proof on the prosecution vis-à-vis the accused.

After an extensive discussion, this Court upheld the constitutional validity of the

provisions of Sections 35 and 54 of the NDPS Act

43, but went on to hold that since the

provisions of the NDPS Act and the punishments prescribed therein are stringent, the

extent of burden to prove the foundational facts cast on the prosecution, would have to

be more onerous. The view taken was that courts would have to undertake a

43

35. Presumption of culpable mental state—(1) In any prosecution for an offence under this Act which requires a culpable mental

state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact

that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation—In this section “culpable mental state” includes intention motive, knowledge of a fact and belief in, or reason to believe, a

fact.

(2) For the purpose of this section , a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not

merely when its existence is established by a preponderance of probability.

54. Presumption from possession of illicit articles—In trials under this Act, it may be presumed, unless and until the contrary is

proved, that the accused has committed an offence under this Act in respect of—

(a) any narcotic drug or psychotropic substance or controlled substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;

(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic

substance or controlled substance; or

(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled

substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been

manufactured, for the possession of which he fails to account satisfactorily.

Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014

Page 19 of 25

heightened scrutiny test and satisfy itself of “proof beyond all reasonable doubt”.

Emphasis was laid on the well-settled principle of criminal jurisprudence that more

serious the offence, the stricter would be the degree of proof and a higher degree of

assurance would be necessary to convict an accused. [Also refer: State of Punjab v.

Baldev Singh

44, Ritesh Chakarvarti v. State of M.P.

45 and Bhola Singh

39 (supra)].

16. Thus, it can be seen that the initial burden is cast on the prosecution to establish

the essential factors on which its case is premised. After the prosecution discharges

the said burden, the onus shifts to the accused to prove his innocence. However, the

standard of proof required for the accused to prove his innocence, is not pegged as high

as expected of the prosecution. In the words of Justice Sinha, who speaking for the

Bench in Noor Aga

38 (supra), had observed that:

“58. ……. Whereas the standard of proof required to prove the guilt of the accused

on the prosecution is “beyond all reasonable doubt” but it is “preponderance of

probability” on the accused. If the prosecution fails to prove the foundational facts

so as to attract the rigours of Section 35 of the Act, the actus reus which is

possession of contraband by the accused cannot be said to have been established.”

The essence of the discussion in the captioned case was that for attracting the

provisions of Section 54 of the NDPS Act, it is essential for the prosecution to establish

the element of possession of contraband by the accused for the burden to shift to the

accused to prove his innocence. This aspect of possession of the contraband has to be

proved by the prosecution beyond reasonable doubt.

44

(1999) 6 SCC 172

45

(2006) 12 SCC 321

Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014

Page 20 of 25

(e) PLEA OF FAILURE TO ESTABLISH FOUNDATIONAL FACTS

17. The submission made by learned counsel for the appellant – Satnam Singh

5 that

the prosecution failed to establish the underlying facts of possession of the contraband

by Satnam Singh

5 and therefore, the burden of proof could not have shifted to the

accused, is found to be devoid of merits having regard to the evidence placed on record

by the prosecution. The prosecution was successful in establishing the fact that it was

the appellant – Satnam Singh

5 who was driving the car

9, when he was accosted at the

spot where the naka was laid by the NCB Officers on the relevant date. A photocopy of

the registration certificate of the car

9 was recovered on a search of the appellant –

Satnam Singh

5. He was the owner of the car

9

. The car

9 was searched by the NCB

Officers in the presence of two independent witnesses. The contraband was recovered

from the car

9 being driven by the appellant – Satnam Singh

5 in the presence of the

independent witnesses and P.K. Sharma, a Gazetted Office

25, who was part of the NCB

team. Even though one of the two independent witnesses [Mukesh Kumar] had turned

hostile and was dropped by the prosecution, the testimony of the other independent

witness [Sonu

8] was consistent and nothing material could be elicited by the accused

during his cross-examination.

18. Through the deposition of the Chemical Examiner [S.K. Mittal

22], the prosecution

successfully proved the report

20 submitted by him stating inter alia that on testing the

samples

18, the substances drawn from the bags recovered from the car

9 of the appellant

– Satnam Singh

5, were heroin. The samples

18 drawn and sealed were found

untampered and the testimony of Constable Balwinder Kumar

10 corroborated the fact

Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014

Page 21 of 25

that he had carried the samples

18 with him and deposited them with the CRCL, New

Delhi on 14

th December, 2005 with all the seals intact.

19. Given the aforesaid narrative, we are of the opinion that the prosecution was able

to discharge the onus cast on it to prove the foundational facts. Thus, the initial burden of

proving that the appellant – Satnam Singh

5 had the knowledge that the car

9 owned and

being driven by him at the relevant point in time was being used for transporting

narcotics, stood discharged. Once it is concluded that the prosecution had produced

adequate evidence to prove beyond reasonable doubt that the accused – Satnam Singh

5

had the knowledge, the presumption contemplated under Section 35 of the NDPS Act

would have to be drawn against him to hold that he had a culpable mental state for

indicting him for the offence for which he had been charged.

20. As has been observed by this Court in the case of Ram Avatar alias Rama

40

(supra), that possession of the contraband is a sine qua non to secure a conviction

under Section 21 of the NDPS Act and that such a contraband article should be

recovered in accordance with the provisions of Section 50 of the NDPS Act, being a

statutory safeguard favouring the accused; otherwise the recovery itself shall stand

vitiated in law.

21. The argument advanced on behalf of the appellant – Satnam Singh

5 that both the

courts below have erred in discarding the defence taken by him to the effect that it was

Sonu

8 who was the real culprit and was apprehended by the NCB officers with the

contraband, but he was let off on bribing the NCB officers, does not meet the test of

Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014

Page 22 of 25

preponderance of probability and has rightly been disbelieved by both the courts in the

absence of any corroboration through cogent evidence.

(f) PLEA OF THE ACCUSED BEING IN THE CUSTODY OF THE NCB MUCH

BEFORE THE NAKA WAS LAID

22. Another plea taken by the appellant – Satnam Singh

5 is that he was in the

custody of the NCB officers much before the point in time when the naka was laid on 11

th

December, 2005. The deposition of witness produced by him, Soravdeep Singh

19 [DW-

1] to substantiate that a call was made from his mobile number at 09.54 PM on 11

th

December, 2005 when he had already been detained by the NCB officers, to a landline

number installed in the Office of the Zonal Director at Chandigarh, was not of any

assistance as the mobile phone bills summoned by the appellant were not proved in

accordance with law. The trial Court observed that the bill in question

46 was only a

computer-generated one. The records pertaining to the bill were not produced by the

witness summoned and the bill did not bear the signature of any authority even to prove

that the mobile phone number asserted by the appellant – Satnam Singh

5 as belonging

to him, stood in his name. We see no reason to take a different view.

23. Reliance placed by learned counsel on the decisions in Dudh Nath Pandey v.

State of Uttar Pradesh

47, State of Haryana v. Ram Singh

48, Adambhai Sulemanbhai

Ajmeri and Others v. State of Gujarat

49 and Jumi and Others v. State of Haryana

50

to urge that defence witnesses are entitled to equal treatment with those produced by

46

Ex.DW-1/A

47

(1981) 2 SCC 166

48

(2002) 2 SCC 426

49

(2014) 7 SCC 716

50

(2014) 11 SCC 355

Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014

Page 23 of 25

the prosecution and different yardsticks cannot be prescribed for prosecution witnesses

as compared to defence witnesses is a well-settled principle of criminal jurisprudence,

but cannot take the case of the appellant – Satnam Singh

5 any further inasmuch as the

trial Court has carefully analysed the testimonies of the defence witnesses before

drawing an adverse presumption against the accused. The High Court has also taken

pains to go through the entire testimonies of the defence witnesses and only thereafter

endorsed the view taken by the trial Court. There has been no arbitrariness or undue

favour shown to the prosecution witnesses from the appellant-Satnam Singh

5 to claim

any bias.

(g) PLEA OF UNRELIABILITY OF THE TESTIMONY OF THE INDEPENDENT

WITNESS, SONU

24. As for the contention of learned counsel for the appellant – Satnam Singh

5 that

the testimony of Sonu

8 cannot be treated as that of an independent witness in view of

the provisions under Section 100 (4) of the Cr.P.C., we are of the view that the said plea

does not hold any water. Section 100 (4) of the Cr.P.C. that falls under Chapter VII titled

“Process to Compel the Production of Things”, states as follows :

“100. Persons in charge of closed place to allow search –

(4). Before making a search under this Chapter, the officer or other person about to make it

shall call upon two or more independent and respectable inhabitants of the locality in which

the place to be searched is situate or of any other locality if no such inhabitant of the said

locality is available or is willing to be a witness to the search, to attend and witness the

search and may issue an order in writing to them or any of them so to do.”

25. It can be discerned from a bare reading of the aforesaid provision that it is a

general provision relating to search and applies to a closed place, as for example, a

residence, office, shop, a built-up premises etc, where a search is required to be

Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014

Page 24 of 25

conducted by the investigation. It is in this context that sub-section (4) of Section 100

Cr.P.C. provides that to maintain the purity of the process, before undertaking a search,

a couple of independent and respectable inhabitants of the locality where the place to be

searched is located, be joined as witnesses to the search.

26. In the case at hand, the naka was laid by the officials of the NCB in an open area

near the roundabout of Sectors 24/25, Chandigarh. Such was the location that there

was no inhabitant in the vicinity and the time of the naka was an unearthly hour of 01.00

a.m. on 12

th December, 2005. In this background, the two independent witnesses who

were driving from Jalandhar towards Chandigarh, were flagged down by the NCB

officers and joined in the investigation. Therefore, the shadow of doubt sought to be cast

on the testimony of Sonu

8 by claiming that he was the real culprit, is clearly a trumped up

story that cannot be sustained. The other independent witness, Mukesh Kumar, had

turned hostile and the prosecution did not examine him. As a consequence, the two

defence witnesses, Parkash Ram

31 and Ravi Kant Pawar

32 produced by the appellant –

Satnam Singh

5 to demonstrate that Mukesh Kumar was a stock witness, would hardly be

of any assistance. The other procedural discrepancies sought to be pointed out by

learned counsel for the appellant – Satnam Singh

5 and referred to in paras 4.3 and 4.4

above, are not considered so vital in nature as to unsettle or demolish the entire case set

up by the prosecution against the appellant – Satnam Singh

5.

(IV) CONCLUSION

27. In view of the aforesaid discussion, we are of the opinion that the appellant –

Satnam Singh

5 has failed to make out a case for acquittal. Therefore, the order of

Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014

Page 25 of 25

conviction and the sentence imposed on Satnam Singh

5 is maintained. Criminal Appeal

No. 1933 of 2014 is accordingly dismissed and the order of conviction and the sentence

imposed on Satnam Singh

5 by trial Court and upheld by the High Court is affirmed.

However, Criminal Appeal No.1136 of 2014 is allowed and the appellant, Balwinder

Singh

3 is acquitted.

…............................................ J.

[B.R.GAVAI]

……….....................................J.

[HIMA KOHLI]

………....................................J.

[PRASHANT KUMAR MISHRA]

New Delhi,

September 22, 2023