Confessional statement of accused recorded u/s 67 of NDPS Act not admissible in evidence: Top Court acquits one accused while upholding conviction of another in narcotic drugs case
Justices Sandeep Mehta & Prasanna B. Varale [30-04-2024]

Read Order: FIRDOSKHAN KHURSHIDKHAN v. THE STATE OF GUJARAT & ANR [CRIMINAL APPEAL NO(S). 2044 OF 2010 WITH 2045 OF 2010]

Tulip Kanth

New Delhi, May 2, 2024: While upholding the conviction of one appellant accused in NDPS Act case, the Supreme Court has acquitted another with the observation that the very manner in which the second accused was apprehended and brought to the NCB Office was full of doubt and created grave suspicion.

The facts of the case were such that the Intelligence Officer in the Narcotic Control Bureau (NCB), Ahmedabad received a secret information that two persons would be delivering contraband/illicit substance at a Bus Stand. The information also provided that the contraband substance had been received from one Adilkhan and that the miscreants would be delivering it to a third person. 

Two panchas were summoned to the NCB office where a preliminary panchnama taking their consent to participate in the proceedings was drawn. The first raiding group after disclosing their identity to the suspect who was holding the bag, made enquiry about his identity and he gave out his name to be Anwarkhan(A-1). The second suspect, however, escaped from the spot. The bag held by Anwarkhan(A-1) was opened and two polythene bags containing suspected contraband material were found therein. The gross weight of the two polythene bags came out to be 2kg and 30 grams. Summon under Section 67 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act was issued to Anwarkhan(A-1) by Deepak Pareek(PW-2) which was duly received by him. Statement of Anwarkhan(A-1) was recorded under Section 67 of the NDPS Act by Deepak Pareek(PW-2) and thereafter, he was arrested.

The appeals before the Top Court were preferred by the appellants- Anwarkhan Jahilkhan Pathan and Firdoskhan Khurshidkhan Pathan, challenging the judgment rendered by the Division Bench of the Gujarat High Court whereby their Criminal Appeals were dismissed. The High Court had upheld the order convicting the appellants for the offences punishable under Section 21 read with Section 8(c) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing them to undergo rigorous imprisonment for ten years and fine of Rs. 1 lakh each in default of payment of fine to undergo simple imprisonment for two years.

At the outset, the Division Bench of Justice Sandeep Mehta and Justice Prasanna B. Varale opined that the contention of the appellants that the search and seizure was undertaken without associating an independent witness was untenable on the face of record. 

Manubhai(PW-1), the panch witness associated in the search and seizure proceedings was serving in the Income Tax Department and hence it couldn't be accepted that the witness was a stock witness of the NCB or was an interested witness. Manubhai(PW- 1) in his sworn testimony proved the recovery panchnama and also fully supported the prosecution case regarding the search and seizure of contraband effected from Anwarkhan(A-1). Thus, it was well established that an independent panch witness was associated in the search and seizure procedure.

The Bench also brushed aside the contention that non-compliance of the requirement of Section 42(2) vitiates the search and seizure on the ground that when the search and seizure is affected from a public place, the provisions of Section 43 of the NDPS Act would apply.

The Bench rejected the argument of the appellants that the search and seizure proceedings were vitiated on account of the non-compliance of Section 50 of the NDPS Act because admittedly, the seizure in this case was not effected during personal search of the appellant Anwar Khan(A-1). Admittedly, the contraband was being carried in a polythene bag held by the appellant Anwar Khan(A-1) in his hand and hence, there was no requirement for the Seizure Officer to have acted under the provisions of Section 50 of the NDPS Act before conducting the search and seizure proceedings. Thus, it was opined that the prosecution had duly proved the guilt of Anwarkhan(A-1) beyond all manner of doubt by leading convincing and satisfactory evidence.

The appellant Firdoskhan(A-2) was not apprehended on the spot or at the time of seizure and his name cropped up for the first time in the statement of Anwarkhan(A-1) recorded under Section 67 of the NDPS Act.

As per the Bench, the admissibility of a confessional statement of the accused recorded under Section 67 of the NDPS Act was examined by this Court in the case of Tofan Singh v. State of Tamil Nadu [LQ/SC/2020/754] and it was laid down that such confessional statements are not admissible in evidence. “Hence, the statement(Exhibit-42) of Anwarkhan(A-1) wherein he allegedly identified the appellant Firdoskhan(A-2) as the person who had escaped from the spot cannot be read in evidence against the appellant Firdoskhan(A-2) because the manner in which the said statement was recorded leaves much to be desired and creates a grave doubt on the sanctity thereof, in addition to the same having rendered inadmissible by virtue of Tofan Singh(supra)”, the Bench added.

Moreover, the very manner in which the said accused was apprehended and brought to the NCB Office at Ahmedabad in the purported exercise of recording his statement under Section 67 of the NDPS Act was full of doubt and created grave suspicion. It was also noticed that no contraband substance was recovered from the possession of appellant Firdoskhan(A-2).

Thus, the Bench dismissed the appeal of the appellant Anwarkhan(A-1) while allowing the appeal of Firdoskhan(A-2) and acquitting him of all the charges.