http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

CASE NO.: Appeal (crl.)  788 of 2005

PETITIONER: Kanhaiyalal

RESPONDENT: Union of India

DATE OF JUDGMENT: 09/01/2008

BENCH: ALTAMAS KABIR & B.SUDERSHAN REDDY

JUDGMENT: J U D G M E N T

ALTAMAS KABIR,J.

1.      The appellant herein, along with one Phool Chand  and Ram Prasad, was accused of offences under the  Narcotic Drugs and Psychotropic Substances Act, 1985  (hereinafter referred to as \021the NDPS Act\022) and  ultimately charges were framed  against them by the  Special Judge under Section 8/18 and in the  alternative under Section 8/18/29 of the aforesaid  Act. On denying the charges framed against them the  accused persons were sent to trial. 2.      The learned Special Judge framed several issues  and ultimately held that the charges had been fully  proved against the accused Phool Chand, from whose  possession 19 kg 200 gms. of opium was seized. Phool  Chand was found guilty and convicted under Section  8/18 of the NDPS Act  and sentenced to suffer 10  years R.I. together with fine of Rs.1 lakh, in  default, to undergo 2 years\022 R.I. separately. 3.      As far as the appellant herein and Ram Prasad  are concerned, the learned Trial Judge found that  the charges against them had not been proved and  acquitted them of the charges under Section 8/18  read with Section 29 of the NDPS Act. 4.      Aggrieved by his conviction and sentence, Phool  Chand preferred Criminal Appeal No.47 of 2002 before  the Indore Bench of the Madhya Pradesh High Court.  On the other hand, the Union of India also preferred  Criminal Appeal No.108 of 2003 against the acquittal  of Ram Prasad and the appellant herein. 5.      The High Court heard both the appeals together  and ultimately dismissed the appeal preferred by  Phool Chand and relying on the statement made by Ram  Prasad and the appellant herein under Section 67 of  the NDPS Act, found them also guilty of the charges  framed  against them and allowed the appeal filed by  the Union of India. Ram Prasad  and Kanhaiyalal (the  appellant herein) were also sentenced to 10 years\022  R.I. each and fine of Rs. 1 lakh each, and in  default, to further undergo a jail sentence of 6  months R.I. 6.      It is against the said judgment of the High  Court that the instant appeal had been preferred by  Kanhaiyalal.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

7.      Since the appellant, Kanhiyalal was convicted  on the basis of the statement made by him under  Section 67 of the NDPS Act, a question has been  raised whether such statement made to an officer  within the meaning of Section 42 of the said Act  could be treated as a confessional statement and  whether the accused could be convicted on the basis  thereof in the absence of any other corroborative  evidence.   8.      As will appear from the records, the case of  the prosecution was that  on 22.2.1997 an  information had been received by Shri Rajesh Nagpal,  Assistant Narcotics Commissioner of the Central  Bureau of Narcotics, Neemuch, that accused  Phoolchand and Ram Prasad were involved in illegal   dealing in opium and they had entered into an  agreement to buy 25 kgs of opium from the appellant  and the delivery of the said contraband was to be  made at the site of the well of accused Ram Prasad  situated in Haspur.  On receipt of the said  information, Shri Nagpal went to his office and  reported the same. Subsequently, the same was  produced before the Deputy Commissioner, Shri Prem  Raj.  On the basis of the said information a  preventive party was constituted which proceeded to  the identified site.  The raiding party purportedly  reached village Hadipiplya Police Station, Manasa,  by a Government vehicle at about 3.00 p.m. on the  same day  and after calling two independent  witnesses, Madan Lal and Ram Rattan, who belonged to  Hadipatiya, the raiding party proceeded towards the  well in question belonging to Ram Prasad\022s father  Mangi Lal. The raiding party led by Lala Ram Dinkar,  Inspector, along with the said two witnesses reached  the said well at about 4.00 p.m. and found two  persons sitting there with 3 bags.  On seeing the  raiding/preventive party, one of the two persons  sitting there ran away and although he was chased by  some members of the raiding party, they did not  manage to catch him.  Inspector Lal Ram Dinkar went  up to the other person sitting near the well who  disclosed his name as Phool Chand son of Sita Ram  and resident of Bardiya. According to the  prosecution case, on being asked as to who was the  person who had fled, Phool Chand indicated the name  of the appellant herein. On being further asked as  to the ownership of the bags lying at the spot,  accused Phool Chand admitted  that the bags belonged  to him and to the appellant herein. 9.      Thereafter, Phool Chand was told about the  confidential information that had been received and  that the raiding party had reasons to believe that  the bags in question contained intoxicating  materials. He was also informed that for such  reasons  he would have to be searched along with the  bags. In keeping with the provisions of Section 50  of the NDPS Act Phool Chand was given the option of  the search being conducted by any nearby Magistrate  or before any Gazetted Officer. According to the  prosecution, Phool Chand was willing to have  the  bag searched before the Gazetted Officer.   Accordingly, Shri R.K. Sinha, Superintendent of the  Narcotics Department, who was present with the  raiding/preventive party introduced himself as a  competent Gazetted Officer to Phool Chand  who gave

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

his consent in writing about such search in the  Panchnama which was drawn before Shri R.K. Sinha.  Pursuant to the above, search of the bags was  undertaken from which the contraband opium was found  and on measurement the bags were found to contain  the following amounts of opium:-

       i)      Bag \021A\022           11 kgs. 500 gms.         ii)  Bag \021B\022      4 kgs. 700 gms, and     iii) Bag \021C\022           300 gms         From each of the bags two samples of 25 grams  each were taken out for chemical examination while  the remaining opium was sealed under the Panchnama  (Exh.P.2) 10.     On the basis of the proceeding in terms of  Section 57 of the NDPS Act and the First Information  Report filed before the Narcotic Superintendent, one  Suresh Badlani was appointed as Investigating  Officer and the seized opium along with samples were  deposited in the Malkhana. At this point of time the  statement of accused Phool Chand was taken where he  confessed to the offence complained of. 11.     During investigation, accused Ram Prasad and  Kanhaiyalal(appellant herein) were served with  summons under Section 67 of the NDPS  Act. While Ram  Prasad was present in the Neemuch office on  24.2.1997 in pursuance of the summons, the appellant  herein did not appear before the concerned officer.  Accordingly, charge-sheet was filed before the  Special Judge under the NDPS Act against Phool Chand  and Ram Prasad on 20.5.1997. Subsequently, after  fresh summons were issued to the appellant herein,  he also appeared before the concerned officer and  his statement was taken under Section 67 of the NDPS  Act. In his statement the appellant confessed that  he too was involved in the smuggling of opium with  the co-accused.  According to the prosecution, on  the basis of his confessional statement, Kanhaiyalal  was also arrested in connection with the offence and  supplementary challan was filed against him before  the Special Judge on 7.8.1997. 12.     The defence of the accused was that they have  been falsely implicated and accused Phool Chand took  a specific plea that on 21.2.1997  he was playing  Kabbadi at the sports ground. 13.     The Trial Judge framed 4 questions for the  purpose of deciding the case, namely, :- i)      Whether seized material in the case is  opium? ii)     Whether aforesaid opium seized illegally  kept in possession of accused Phool Chand  in village Hadipipliya at about 4 o\022clock  on 22.2.1997 i.e. the day of incident ? iii)    Whether aforesaid opium was collected for  sale by all the three accused Ram Prasad  and Kanhaiya Lal with co-accused Phool  Chand in co-partnership ? and iv)     Whether in this case compliance of  necessary legal provisions of NDPS Act is  done ? 14.     The first question was answered by the learned  Trial Judge in the affirmative upon holding that the  seized material was proved to be opium. 15.     On the second question, the Trial Judge came to  the definite finding that it had been fully  proved

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

that the opium had been seized from the possession  of accused Phool Chand for which he did not have any  valid licence. 16.     The answer to the third question, which is   relevant to this appeal, was answered in favour of  the accused Ram Prasad and the appellant herein and  the Special Judge concluded that except for the  contradictory confession  of these two accused there  was no other corroborative evidence and the  prosecution had failed to prove that they were  included  in the smuggling operation. 17.     As far as the fourth question is concerned the  Special Judge was satisfied that all the provisions  of the NDPS Act had been duly complied with. 18.     On the basis of his findings on the first,  second and fourth questions, the Special Judge under  the NDPS Act convicted Phool Chand of the offences  under Section 8/18 of the NDPS Act, but acquitted  both Ram Prasad and the appellant herein  of the  said charge on his findings with regard to question  no.3. 19.     As mentioned hereinabove, the High Court while  dismissing the appeal filed by Phool Chand allowed  the appeal filed by the Union of India against the  acquittal  of Ram Prasad and Kanhaiyalal upon  holding that the statement made by Ram Prasad and  the appellant herein under Section 67 of the NDPS  Act did not require any corroboration and were  sufficient in themselves to convict the said two  accused. 20.     Mr. S.K. Gambhir, learned Senior Advocate,  contended on behalf of the appellant, Kanhaiyalal,  that the High Court had incorrectly stated the law  regarding statements made under Section 67 of the  NDPS Act before officers empowered under Section 42  thereunder. It was his specific case that once the  appellant had been summoned in an inquiry under  Section 67 of the aforesaid Act and was placed under  arrest, any statement made by him thereafter would  be hit by the provisions of Sections 24 to 27 of the  Indian Evidence Act, 1872. Apart from the above, Mr.  Gambhir also submitted that after making the  statement in terms of Section 67 of the NDPS Act the  appellant  had retracted such statement and in the  absence of  corroborative evidence, the said  retracted statement/confession could not be relied  upon in order to convict the appellant. Furthermore,  there was no independent evidence to corroborate the  retracted confession, which fact had weighed with  the trial court in acquitting the appellant. 21.     Mr. Gambhir submitted that although from the  arrest Memo it would be clear  that Kanhaiyalal was  arrested on 8.6.1997  at 5.30 p.m.,  he was produced  before the Magistrate on 9th June, 1997, and on the  same day he made an application in writing to the  Court that his signature had been forcibly obtained  on  blank papers under threat that if he did not  sign he would be involved in other serious cases and  the same were subsequently used  for preparing  statements under Section 67 of the aforesaid Act as  if the same had been voluntarily made by him.  Mr.  Gambhir submitted that the appellant had already  been arrested and detained in custody when the  statement under Section 67 of the NDPS Act was  recorded and, accordingly the same came within the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

mischief of Sections 24 to 27 of the Evidence Act.  Mr. Gambhir pointed out that since the Trial Court  had taken cognizance of the said application and  recorded a finding in the judgment itself that  Kanhaiyalal had retracted his confession, it would  be incorrect to say that the said  application made  by Kanhaiyalal had not been considered by the Court.  It was also pointed out by Mr. Gambhir that although  on behalf of the prosecution it had been submitted  that Kanhaiyalal in his statement under Section 313  of the Criminal Procedure Code had stated that he  had been compelled to sign on blank papers under  threat, the truth was otherwise since in his  statement under Section 313 Kanhaiyalal answered  \023galat hai\024 which had to be taken as a denial that  he had given such statement. Mr. Gambhir submitted  that the appellants positive response had to be read  along with his application dated 9.6.1997 retracting  his confessional statement. 22.     Mr. Gambhir submitted that the High Court had  erred in relying upon the appellant\022s statement made  under Section 67 of the NDPS Act, although, not only  had the same been retracted immediately thereafter  before the learned Magistrate, but the same was not  admissible under the above-mentioned provisions of  the Evidence Act.  It was submitted that since apart  from the above statement there was no other  evidence, which linked the appellant with the  alleged offence, the High Court should have  maintained the judgment of the acquittal passed by  the learned trial court. 23.  In support of his aforesaid submission that in  the absence of other corroborating evidence the  retracted confession had been wrongly relied upon by  the High Court to convict the appellant,   Mr.  Gambhir referred to the three Judge Bench decision  of this Court in Muthuswami vs. State of Madras (AIR  1954 SC 4) in which, it was indicated that no hard  and fast rule could be laid down regarding the  necessity of corroboration in the case of a  retracted confession in order to base conviction  thereupon.  But apart from the general rule of  prudence, if the circumstances of a particular case  raised doubts as to the genuineness of a confession,  it would be sufficient to require corroboration of a  retracted confession. 24. In Puran vs. State of Punjab (AIR 1953 SC 459)  the same view has been expressed as follows:- \023It is a settled rule of evidence that  unless a retracted confession is  corroborated in material particulars, it  is not prudent to base a conviction in a  criminal case on its strength alone.\024

25.  The same view was also expressed by this Court  in Parmananda Pegu vs. State of Assam (2004 (7) SCC  779), which involved a conviction made on the basis  of a confession made before a Judicial Magistrate in  accordance with Section 164 of the Code of Criminal  Procedure. 26.     In the same context Mr. Cambhir strongly relied  on the decision of this Court in State (NCT of  Delhi) vs. Navjot Sandhu (2005 11 SCC 600) (commonly  known as the Parliament Attack case)wherein while  hearing several appeals, this Court had occasion to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

go into the question of confessions and retracted  confessions in some detail.   Referring to  confessions in general, this Court made a  distinction between \023confession\024 and \023admission\024.   It observed that \023an admission is a statement oral  or documentary which enables the Court to draw an  inference as to any fact in issue or relevant fact.   It is trite to say that every confession must  necessarily be an admission, but, every admission  does not necessarily amount to a confession.\024  This  Court also cautioned that before acting upon a  confession, the Court has to satisfy itself that it  was freely and voluntarily made, having regard to  the language of Section 24 of the Evidence Act.   However, while examining the evidentiary value of a  retracted confession against the confessor, the  learned Judges had occasion to consider three  previous decisions of this Court in Bharat vs. State  of U.P. (1971 3 SCC 950) and Haroon Hazi Abdulla vs.  State of Mahrashtra (1968 2 SCR 641) and Pyare Lal  Bhargava vs. State of Rajasthan (1963 Suppl.1 SCR  689).   The learned Judges extracted paragraph 7 of  the judgment in Bharat vs. State of U.P. (supra)  wherein a comparison has been made between  \023confession\024 and \023retracted confession\024.  While in  the former case, it was observed that confessions  could be acted upon, if the Court was satisfied that  they were voluntarily made and they were true,  retracted confessions, stood on a slightly different  footing.   In that context, it was observed that \023a  Court may take into account the retracted  confession, but it must look for the reasons for the  making of the confession as well as for its  retraction, and must weigh the two, to determine  whether the retraction affects the voluntary nature  of the confession or not.\024  The learned Judges of  the three Judge Bench went on to observe that upon  being satisfied, it was for the court to decide  whether to use the retracted confession or not, but  all the same, the courts did not normally act upon a  retracted confession without finding some other  evidence as to the guilt of the accused.  The  learned Judges concluded that a true confession  voluntarily made could be acted upon with slight  evidence to corroborate the same, but a retracted  confession requires the Court to be assured that the  retraction was an after-thought and that the earlier  statement was true. 27. Similar views were expressed in the other two  cases referred to hereinabove, but it would be  profitable to reproduce the views of the four Judge  Bench in Pyare Lal Bharagava\022s case (supra) which  has been reproduced in Navjot Sandhu\022s case, in the  following terms :- \023A 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 conviction without  corroboration.  It is not a rule of law,  but is only rule of Prudence.  If cannot  even be laid down as an inflexible rule  of practice of prudence that under no  circumstances can such a conviction be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

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 voluntary made and  has been corroborated in material  particulars.\024

28.     While the above mentioned decisions dealt with  other criminal enactments, the next case referred  to by Mr. Gambhir, namely, A.K. Mehaboob vs.  Intelligence Officer, Narcotics Control Bureau,  (2001 10 SCC 203) is a decision under the NDPS Act  with due regard to the provisions of Sections 42  and 67 thereof.  The criminal appeal of Shri A.K.  Mehaboob was heard alongwith the appeal filed by  Shri P.K. Naushad, who were the second and third  accused facing charges for having committed an  offence under Sections 21 and 29 of the NDPS Ac.   While the first accused, Divakaran, was found  guilty and convicted on the strength of recovery of  brown sugar from him, the two appellants before  this Court were acquitted by the trial court but  were convicted by the High Court in appeal  preferred by the Narcotics Control Bureau.  From  the facts of the said case, it appears that apart  from the statement made by Naushad under Section 67  of the NDPS Act there was other evidence to  indicate that business in Narcotic drugs was being  transacted from his house.  His appeal was  therefore rejected.  As far as Mehaboob was  concerned, his statement did not contain any  statement, which could involve him in the offence.   The High Court, therefore, allowed the appeal filed  by Mehaboob and set aside his conviction. 29. On this line of decisions, Mr. Gambhir lastly  referred to a decision of this Court in Pon  Adhithan vs. Deputy Director, Narcotics Control  Bureau, Madras (1999 6 SCC 1) wherein, in fact, the  confessional statement made by the accused- appellant while in custody of the Intelligence  Officer, Narcotics Intelligence Bureau, was relied  upon to convict the said accused, on it being held  that the said statement had been voluntarily made  as no complaint of threat or pressure had been made  by the accused when he was produced before the  Magistrate.  Mr. Gambhir sought to distinguish the  said decision on the ground that while in Pon  Adhithan\022s case, no complaint had been made by the  accused of any threat or compulsion for making such  statement, in the present case the confession made  by the appellant herein was immediately retracted  on the very next date when the appellant was  produced before the Magistrate and that, too, in  writing by way of an application.  Mr. Gambhir  reiterated that the said application was referred  to by the learned trial court in its judgment.  Mr.  Gambhir also submitted that since the trial court  had chosen not to rely on the statement made by the  appellant under Section 67 of the NDPS Act, in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

absence of any corroborating evidence, the  evidentiary value of the retracted confession had  not been gone into by the learned trial court.   

30. Reliance was also placed by Mr. Gambhir on the  Constitution Bench decision in Haricharan Kurmi vs.  State of Bihar (1964 6 SCR 623) in support of his  submission that apart from the statement of  Phoolchand, the main accused, there was no other  evidence to connect the appellant with the alleged  offence under the NDPS Act.  In the said case, the  Constitution Bench, held that though a confession  within the meaning of Section 30 of the Indian  Evidence Act, cannot strictly speaking be treated  as evidence as defined in Section 3, it is an  element which may be taken into consideration by  the criminal courts but the court cannot start with  the confession of a co-accused person, but must  begin with other evidence adduced by the  prosecution before relying on the confession of the  co-accused.  

31.     On behalf of the Union of India, Mr. B.B.  Singh, learned Advocate, submitted that having  regard to the decisions of this Court in Pon Adithan  vs. Dy. Director Narcotics Bureau, (supra), A.K.  Mehaboob vs. Intelligence Officer, Narcotics,  (supra) and M.Prabhulal vs. The Assistant Director,  Directorate of Revenue Intellegence (2003) 8 SCC  449, the appellant had been rightly  convicted on  his confessional statement made under Section 67 of  the NDPS Act alongwith the evidence of PW 9 Suresh  Badlani, Inspector in the office of the Deputy  Narcotics Commissioner, Lucknow, U.P., before whom  such statement had been made. Mr. Singh also  submitted that even if the person was in custody at  the time when he made such confessional statement,  the same would not attract the bar under Article  20(3) of the Constitution, if it was made  voluntarily. Mr. Singh also emphasised that in all  the three cases referred to hereinabove the accused  were in custody when their confessional statements  were recorded under Section 67 of the NDPS Act. 32.     Mr. Singh further submitted that although PW 9  had deposed that the confessional statement had been  made by the appellant on 8.6.97 before him in the  office of the Deputy Commissioner, there was no  cross-examination  on this point on behalf of the  appellant and consequently the confessional  statement of the appellant had to be accepted. 33.     On the issue involving retraction by the  appellant of his statement made before the Inspector  under Section 67 of the NDPS Act, Mr. Singh  submitted that the application which the appellant  is said to have filed before the Magistrate was  never proved or exhibited in the Trial Court and did  not form part of the evidence on record. He  submitted that the same could not, therefore, be  taken note of or be relied upon in support of the  appellant\022s case of retracted confession. 34.     In support of his aforesaid  submission Mr.  Singh referred to the decision of the eleven Judge  Bench of this Court in State of Bombay vs.  Kathi  Kalu Oghad and others (1962) 3 SCR 10) wherein it  was, inter alia, concluded that the accused person

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

cannot be said to have been compelled to be a  witness against himself simply because he made a  statement  while in police custody, without anything  more. In other words, just being in Police custody  when the statement was made would not, by itself,  give rise to an inference  that the accused had been  compelled  to make such statement. It was also held  that to bring the statement within the prescription  of Article 20(3), the person accused must have stood  in the character of an accused person at the time he  made the statement.  It is not enough that he should  become an accused any time after the statement had  been made.  35.     From the facts of the case and the submissions  made on behalf of the respective parties the point  which emerges for determination is upto what extent  can a statement under Section 67 of the NDPS Act be  relied upon for convicting a person accused of  having committed an offence under the provisions of  the said Act. In order to arrive at a decision in  regard to the above, it will also have to be  considered whether such a statement would attract  the bar both of Sections 24 to 27 of the Indian  Evidence Act as also Article 20(3) of the  Constitution of India. For the aforesaid purpose,  the provisions of Section 67 of the N.D.P.S. Act are  reproduced hereinbelow:-         \02367. Power to call for information,  etc. \026 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.\024

36.     A parallel may be drawn between the provisions  of Section 67 of the NDPS Act and Sections 107 and  108 of the Customs Act  and to a large extent  Section 32 of the Prevention  of Terrorism Act, 2002  and Section 15 of the Terrorist and Disruptive  Activities (Prevention) Act, 1987.  These are all  special Acts meant to deal with   special situations  and circumstances. While the provisions of the  Prevention of Terrorism Act, 2002, and TADA Act,  1987, are much more stringent  and excludes from its  purview the provisions of Sections 24 to 27 of the  Evidence Act with regard to confession made before a  police officer, the provisions relating to  statements made during inquiry under the Customs Act

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

and under the NDPS Act are less stringent and  continues to attract the provisions of the Evidence  Act. In the case of both the latter enactments,  initially an inquiry is contemplated  during which a  person may be called upon to provide any information  relevant to the inquiry as to whether there has been  any contravention of the provisions of the Act  or  any Rule or Order made thereunder.  At that stage  the person concerned is not an accused although he  may be said to be in custody. But on the basis of  the statements made by him he could be made an  accused subsequently. What is important is whether  the statement made by the person concerned  is made  during inquiry prior to his arrest or after he had  been formally charged with the offence and made an  accused in respect thereof. As long as such  statement was made by the accused at a time when he  was not under arrest, the bar under Sections 24 to  27 of the Evidence Act would not operate nor would  the provisions of Article 20(3) of the Constitution  be attracted. It is only after a person is placed in  the position of an accused that the bar imposed  under the aforesaid provision will come into play.  Of course, this Court has also held in Pon Adithan\022s  case (supra) that  even if a person is placed under  arrest and thereafter makes a statement which seeks  to incriminate him, the bar under Article 20(3) of  the Constitution would not operate against him if  such statement was given voluntarily and without any  threat or compulsion and if supported by  corroborating evidence. 37.     The law involved in deciding this appeal has  been considered by this Court from as far back as in  1963 in Pyare Lal Bhargava\022s case (supra). 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. In addition to the above, in the case of  Raj Kumar Karwal v. Union of India and others (1990)  2 SCC 409, this Court held that officers of the  Department of Revenue Intelligence who have been  vested with powers of an Officer-in-Charge of a  police station under Section 53 of the NDPS Act,  1985, are not \023police officers\024  within the meaning  of Section 25 of the Evidence Act.  Therefore, a  confessional statement recorded by such officer in  the course of investigation of a person accused of  an offence under the Act is admissible in evidence  against him. It was also held that power conferred  on officers under the NDPS Act in relation to  arrest, search and seizure were similar to powers  vested on officers under the Customs Act. Nothing  new has been submitted which can persuade us to take  a different view.  38.  Considering the provisions of Section 67 of the  N.D.P.S. Act and the views expressed by this Court  in Raj Kumar Karwal\022s case (supra), with which we  agree, that an officer vested with the powers of an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

Officer-in-Charge of a Police Station under Section  53 of the above Act is not a \023Police Officer\024 within  the meaning of Section 25 of the Evidence Act, it is  clear that a statement made under Section 67 of the  N.D.P.S. Act is not the same as a statement made  under Section 161 of the Code, unless made under  threat or coercion.  It is this vital difference,  which allows a statement made under Section 67 of  the N.D.P.S. Act to be used as a confession against  the person making it and excludes it from the  operation of Sections 24 to 27 of the Evidence Act. 39.     There is nothing on record to suggest that the  appellant was compelled under threat to make the  statement after he had been placed under arrest  which renders such statement inadmissible and not  capable of being relied upon in order to convict  him. On the other hand, there is the evidence of PW9  upon which the High Court has relied in convicting  the appellant.  It may once again be mentioned that  no question in cross-examination had been put to PW9  in this regard and the version of the said witness  must be accepted as corroborative of the statement  made by the accused. 40.     It may also be recalled that though an  application was made for retracting the confession  made by the appellant, neither was any order passed  on the said application nor was the same proved  during the trial so as to water down the evidentiary  value of the said statement.  On the other hand, in  the absence of such evidence on record, the High  Court had no option but to proceed on the basis of  the confession as made by the appellant under  Section 67 of the NDPS Act. Since it has been held  by this Court that an officer for the purposes of  Section 67 of the NDPS Act read with Section 42  thereof, is not a police officer, the bar under  Sections 24 and 27 of the Evidence Act cannot be  attracted and the statement made by a person  directed to appear before the officer concerned may  be relied upon as a confessional statement against  such person. Since a conviction can be maintained  solely on the basis of a confession made under  Section 67 of the NDPS Act, we see no reason to  interfere with the conclusion of the High Court  convicting the appellant. 41.             We, accordingly, dismiss the appeal and  maintain the order of conviction and sentence passed  against the appellant by the High Court.