As per section 53 officers under NDPS Act confession given by accused
10. Though the two independent witnesses were not examined before the Court, their statements were marked as Exhibits P19 and P71. A perusal of the impugned judgment of the High Court shows that it was held that the conditions prescribed by Section 53A of the NDPS Act were not fulfilled and therefore, these two statements were inadmissible. The High Court believed the testimony of PW2 and PW4 to PW7 and held that the confessional statements of the accused could be taken as corroboration for the evidence of official witnesses.
11. Paragraphs 158.1 and 158.2 of the majority view in Tofan Singh’s case1, read thus:
“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 added)
12. Admittedly, the confessional statements were made by the accused to an officer empowered under Section 53 of the NDPS Act and hence, in view of the bar of Section 25 of the Evidence Act, the confessional statements will have to be kept out of consideration.
Failure to examine independent witnesses
14. A finding was recorded by the High Court that the prosecution has not proved that the witnesses are dead or cannot be found or are incapable of giving evidence or kept out of the way of the accused or their presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. These findings are based on the perusal of the entire record. There is no explanation offered by the prosecution about their failure to examine these two independent material witnesses. Hence, the statements of both witnesses are not admissible in evidence.
Sealed contraband procedure contrary to union of India vs. V.Mohanlal & anr ((2016) 3 SCC 379)
15. Admittedly, PW2 drew two samples from each of the packets of the contraband found in the hotel room and kept them in two separate plastic covers. These covers were sealed and the remaining contraband was also sealed. Thus, the prosecution claims that the samples were prepared even before the packets were sent to the Station House Officer. The submission of the learned senior counsel appearing for the appellant in Criminal Appeal 451 of 2011 was that a grave suspicion is created about the prosecution’s case as this action by the PW2, was contrary to Section 52A of NDPS Act.
……
Thus, the act of PW2 of drawing samples from all the packets at the time of seizure is not in conformity with what is held by this Court in the case of Mohanlal (supra). This creates a serious doubt about the prosecution’s case that the substance recovered was contraband.
Accused Acquitted.
PARTY: Bothilal vs. The Intelligence Officer Narcotics Control Bureau – Criminal Appeal No. 451 of 2011 – April 26, 2023.
https://main.sci.gov.in/supremecourt/2010/29645/29645_2010_16_1501_43830_Judgement_26-Apr-2023.pdf
Bothilal-vs.-The-Intelligence-Officer-Narcotics-Control-Bureau
