REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1647 OF 2007

Raju Premji …. Appellant

Versus

Customs NER Shillong Unit …. Respondent

WITH CRIMINAL APPEAL NO.  956   OF 2009

(Arising out of SLP (Crl.) No. 2047 of 2008)

Arun Kanungo …. Appellant

Versus

D. Pakyntein …. Respondent

J U D G M E N T

S.B. SINHA, J.  

Leave granted.

1. These two appeals involving common questions of law 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, 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  

Rs.1,00,000/-  each;  in  default  of  payment  of  fine,  to  further  undergo  a  

rigorous 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 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,  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.

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4. The  prosecution  case  in  brief  is  that  D.  Pakyntein,  PW-11,  an  

Inspector  in the  Office of  the Commissioner  of  Customs,  NER Shillong,  

received an information from Special Operation Team of Meghalaya Police  

through N.K. Bhandari, PW-4, at about 7.50 p.m. on 19th August, 2003 that  

one Yasihey Yobin of  Dum Dum, Nogthymmai,  accused No.1,  had kept  

some heroin at his residence and if a search is conducted immediately, the  

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 alongwith Yobin.  After the particulars of Yobin were ascertained, his  

house was searched in presence of independent witnesses R.V. Dkha, PW-3  

and D. 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 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 suit case cover of camouflage denim made of  

synthetic  fabric  and  one  green  polythene  bag,  on  opening  whereof,  one  

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plastic packet containing white powder wrapped with two pieces of English  

newspaper was recovered.  

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 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.   

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  handed  over  to  the  

customs officers.  

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It is now borne out from the record that whereas all the accused made  

two statements each on 20th August, 2003 purported to be under Section 67  

of the Act.  So far as accused 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 information  

report  was  lodged  only  in  the  afternoon  of  20th August,  2003.   All  the  

accused persons were formally arrested at 4.30 p.m.  They were subjected to  

further interrogation and both the appellants made a third statement on 21st  

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  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 on 21st 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.  

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Accused Nos. 1 and 2 have not preferred any appeal before this Court  

against the judgment of the High Court.  

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  appellants  

before the authorized officers while in custody, the same were hit  

under Section 26 of the 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, 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.   

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 to be set  

aside.

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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  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  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  commission  of  the  crime,  it  was  for  them  to  offer  

reasonable explanation in relation thereto.  

10. Chapter  III  of  the  NDPS Act  provides  for prohibition,  control  and  

regulation.  Chapter IV provides for offences and penalties.   

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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 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.   

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.  Some plain clothes policemen were posted.  In the own words  

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 in custody and brought to the office of PW-9.  

Even then they were not asked to make any statement.  They were not even  

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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 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  

have exercised their own jurisdiction.  Customs Officers, we would assume,  

were invested with the powers of an Officer Incharge 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  case  to  the  

customs authorities  defies  any logic.   It  is  admitted  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  

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  

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the customs officers had still been carrying on some other formalities.  All  

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.   

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 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.   

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.

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16. It  stands  admitted  that  the  officer  concerned,  R.M.  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 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  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 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;

(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 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  

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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 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 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  to  be  proved  against  him  -  No  confession made by any person whilst he is in the  custody of a police-officer, unless 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  or  elsewhere,  unless  such  headman  is  a  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  the  Central  

Government  was  an  officer  incharge  of  the  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  

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to investigate into a commission of cognizable offence.  He can also file a  

charge sheet.   

21. A constitution Bench of this Court in State of Punjab v. Baldev Singh,  

[(1999) 6 SCC 172 ], held as under :-  

“28. This  Court  cannot  overlook the  context  in  which the NDPS Act operates and particularly the  factor  of  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 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  if  he  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  the  compliance  with  the  procedural  safeguards  contained  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 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 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 come  under a cloud if the court is seen to condone acts  of  lawlessness  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  

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administration  of  justice.  That  cannot  be  permitted.”

22. We would, for this purpose, assume that such 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 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  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 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.”

23. Whether  a  confessional  statement  is  voluntary  and  free  from  any  

pressure must be judged from the facts and circumstances of each case.  

This Court in Mohtesham Mohd. Ismail v. Spl. Director, Enforcement  

Directorate, [(2007) 8 SCC 254 ], has held as under :-  

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“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 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) SCALE 681],  

this Court held:-

“102. Section 25 of the Evidence Act was enacted  in the words of Mehmood J. in Queen Empress  v.   Babulal [ ILR (1884) 6 All. 509 ] to put a stop the  extortion of 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 as also the  

customs officers, 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.

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25. Leaned counsel has relied upon a decision of the Kerala High Court in  

Kochan Velayudhan  v.  State of Kerala, [AIR 1961 Kerala 8], wherein it  

was observed :-

“21. In Ramrao Ekoba v. The Crown, AIR 1951  Nag 237 Hemeon, J., held that:

"Although  the  failure  to  comply  with  the  provisions  regulating  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 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 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.  

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.   

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………………………J.  [ S.B. SINHA ]

………………………J.  [ R.M. LODHA ]

New Delhi. May 6, 2009

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