1. This criminal appeal under Section 374 (2) of Cr.P.C. has been filed against the judgment and order dated 12.07.2013, passed by the learned Additional District & Sessions Judge, Court No.8, Lucknow in Criminal Case No. 281A of 2006 (Union of India Vs. Aashu Pandit @ Aashu Bajpai @ Aash Narayan Sharma) by which the appellant has been convicted for the offence under Section 8(C)/20(B)(II) of NDPS Act, 1985 and sentenced to undergo 14 Years' R.I. with a fine of Rs.2.00 Lakhs, with default stipulation.
2. Brief facts relevant for disposal of the present criminal appeal are that on behalf of Union of India through Radha Raman Singh, Investigating Officer, Directorate of Revenue Intelligence, Lucknow Regional Unit, 3/71 Vivek Khand, Gomti Nagar, Lucknow had filed a written complaint before the Court of Sessions Judge, Lucknow under Section 8C/20(b) (ii) (C)/29/25 of of NDPS Act, 1985 with the assertion that complainant was an intelligence officer in the Directorate of Revenue Intelligence, posted at Regional Unit, Lucknow and was competent to file this complaint. On the basis of a specific intelligence that Hashish (Charas) is being transported from Nepal by Truck bearing Registration No.UP78/AT 3680 the Deputy Director, Directorate of Revenue Intelligence, Lucknow had sent a team with the direction to intercept the said truck, contraband goods and accused persons. As per the intelligence, it was informed that the said Charas was kept in secret cavity in the back of the driver's cabin of the truck. On getting this information two public witnesses Shri Amrajeet and Shri Rakesh Sharma were called by the DRI officials at Capt. Manoj Pandey Chauraha near Gomti Nagar Police Station, Lucknow at 4.45 A.M. on 28.05.2006. They were told about the information and were requested to accompany the team to witness the proposed action of interception, search of the truck and recovery of the contraband to which both witnesses had agreed and they accompanied the raiding team. The raiding party along with the public witnesses proceeded towards Gosainganj, Lucknow and waited for the said truck near Gosainganj Tiraha, Kanpur bypass at Gosainganj. At about 6.00 A.M. on 28.05.2006 the said truck No. UP87-AT 3680 was seen coming from Haidergarh. It was signalled to stop by the officers.
3. When the said truck stopped the DRI officials introduced themselves to the driver and cleaner and told the purpose of interception of the said truck. It was disclosed to them that search would be done as per requirement of NDPS Act, 1985. On the spot the driver who was driving the truck disclosed his name and address as opposite party no.1 Rajesh Kumar Mishra, S/o late Shri Arjun Mishra, R/o Village Ganeshpur, P.O.- Dhhakhwa Bazar, Police Station Sikriganj, District Gorakhpur and the cleaner as Shri Raju Dube, S/o Shri Rajesh Dube, R/o Village Rooppur, Post office, Police Station and District Kannauj (truck Khalasi).
4. At first the driver and the Khalasi were hesitant but later on they disclosed that Charas was kept in the secret cavity made on the back of the driver's cabin. The said driver and Khalasi were given a right to be searched themselves as well as the truck before the nearest Magistrate or the Gazetted Officer in compliance of Section 50 of NDPS Act, 1985. Both the persons consented in writing before the intercepting party. For safety and security and on the consent of the driver and khalasi intercepting team took the truck along with both the public witnesses to DRI office at 2/31, Vishal Khand, Gomti Nagar, Lucknow and the search of the truck was made in the presence of the intercepting party and witnesses and 720 rectangular shaped bars of Charas (each bar of 250 gms.) were recovered at the instance of driver and khalasi from the secret cavity specifically fabricated on the back of the driver's cabin, which on weighing was found to be 180 Kgs. and after mixing the recoveries, four mixed samples of approximately 25 gms each were obtained from the recovered Charas for testing purpose. The four respective samples were sealed and sent for chemical examination and the remaining Charas was sealed in 09 packets, duly signed by the accused, public witnesses and the member of the intercepting party.
5. Statement of accused namely Raju Dubey was written on the dictation of the accused before Shri Atul Kumar Srivastava, Intelligence Officer, DRI, Lucknow Regional Unit, Lucknow and the statement of accused Rajesh Kumar Mishra, Driver was written himself before Shri Ravindra Kumar Tiwari, Intelligence Officer, DRI, Lucknow Regional Unit, Lucknow.
6. Shri Rajesh Kumar Mishra, driver, in his statement dated 28.05.2006 accepted the crime mentioned in the Panchayat Nama/recovery memo dated 28.05.2006. He also revealed that he came in contact of present appellant at a Dhaba in Nankari (Kanpur) for about one month ago. On the first meeting appellant revealed that he had a truck which contained secret cavity and asked me to drive said truck which contains illegal goods in the secret cavity for which he was to be paid Rs.7000/-. On 27.05.2006 present appellant called Rajesh Mishra at Dhaba situated at Basi (District Sidharth Nagar) near petrol pump. On the said place appellant met Rajesh Kumar Mishra and handed over him the said truck and introduced him to Raju Dubey (Khalasi) at the said truck. Appellant revealed that the Charas was kept in the secret cavity as stated above. They were directed to drive the said truck to Kanpur where the appellant shall meet them and would instruct them regarding further plan.
7. Khalasi also gave almost similar statement on 28.05.2006 and stated that said Rajesh Mishra and Raju Dubey reached Basi on 27.05.2006 in the morning where the appellant was present with another driver Pappu. Ashu Pandit (present appellant) along with other driver headed to Nepal with the said truck and came back at Basi in the evening of that day after loading Charas in the secret cavity and handed over the truck to the opposite party no.1 & 2 and present appellant instructed them to drive the said truck up to Nankari where he would contact them again. But during the said transaction the truck was intercepted, as stated above.
8. During the course of investigation residence of the present appellant was searched but nothing incriminating was recovered from his residence. Various summons were issued to him but he did not appear before the Court and he was not found at the given address.
9. After filing of the complaint since whereabouts of the present appellant was not known the appellant was declared absconder by the trial court vide its order dated 18.02.2008 and the trial of other accused persons Rajesh Kumar Mishra and Raju Dubey proceeded. It is informed that in a separate trial they have already been convicted by the trial court. However, from the perusal of the record of this case which proceeded separately it is evident that later on it was revealed that present appellant is languishing in jail in Kanpur in some other case. So, the accused was summoned through B warrant from Kanpur jail and trial of the present appellant separately proceeded. During the trial the appellant denied all the allegations made against him in the complaint and he stated that he had no concern or relation with the opposite parties Nos. 1 & 2 Rajesh Kumar Mishra and Raju Dubey. He never met them and he even stated that the said truck UP 78 AT 3680 also does not belong to him. During the course of investigation it was found that the said truck was registered in the name of one Shri Amit Kumar, S/o Hari Narain, 1/17 Barsaitpur, Kalyanpur, Kanpur. When the summons were issued in the name of the said Amit Kumar on 27.06.2006 said summons were returned back with the endorsement that on the said address he was not found. Again Investigating Officer contacted previous owner of the truck Vijay Narain Sharma who had sold the said truck to Amit Kumar. Shri Vijay Narain Sharma disclosed that he came in contact with Amit through a broker at RTO officer when in the RTO office said broker in the name of Pandey was contacted no such person was found. As per market value the 180 Kg. Was found value of Rs.54.00 Lakhs and the value of the truck was Rs.4.00 Lakhs.
10. On behalf of prosecution, four witnesses PW 1 Ravindra Kumar Tiwari, PW 2 Atul Kumar Srivastava, PW 3 Rajesh Khanna, PW 4 Radha Raman Singh were examined and to prove the guilt of the appellant Exhibits Ka 1 to Ka 26 were produced.
11. After completion of the prosecution witnesses statement of accused was recorded under Section 313 Cr.P.C. wherein he was referred to the evidence recorded against him during the trial to which he denied and stated that he is innocent. He has got no concern either with the said truck or with the other two accused named above. No recovery has been taken place from his possession, nor from his house any incriminating material has been recovered. He has been falsely implicated in this case. Accused was given a chance to adduce in his defence but no such evidence has been given.
12. After completion of the evidence from both the sides, the trial court heard the parties and the appellant was convicted as stated above. Hence this appeal.
13. I have heard learned counsel for the appellant as well as learned counsel for Union of India (Directorate of Revenue Intelligence).
14. The argument of learned counsel for the appellant is that according to the prosecution case itself it is an admitted case that the appellant was not arrested on the spot and there is no confessional statement or other statement of the appellant either before the arrest or after his arrest before any authority recorded under Section 67 of NDPS Act. Prosecution Witness PW 4 has also admitted in his deposition before the trial court that present appellant has been made accused merely on the basis of confessional statement of co-accused persons Rajesh Kumar Mishra and Raju Dubey. Prosecution in effort to prove either exclusive possession or the contraband article nor the prosecution could prove even the conscious possession of the appellant regarding the truck or the contraband contained therein through any direct or indirect evidence beyond any reasonable doubt. The trial court has wrongly passed the conviction order against the appellant without any evidence or material on record against the appellant. The prosecution also could not prove the link evidence either regarding the ownership of the truck in question or the ownership of the recovered contraband article against the appellant either during investigation or during trial. It is also stated that after recovery dated 28.05.2006 the appellant's house was also searched but no incriminating article was found from his house. The mode and manner of recording statement of arrested co-accused persons namely Rajesh Kumar Mishra and Raju Dubey under Section 67 of NDPS Act clearly indicates that both were recorded after taking them into custody by DRI officials. Therefore the same is also hit by Article 20 (3) of the Constitution of India and such statement is neither admissible against the appellant, nor it may be read against any other person.
15. It is also argued that it is a settled proposition of law that the confessional statement of any other accused persons cannot be made basis and foundation for launching criminal prosecution against any person and also would not be sufficient for awarding conviction until and unless the same is not corroborated by any independent evidence and material whereas in the present case, there is no connecting evidence in commission of crime against the appellant either collected by the Investigating Officer during investigation or produced during trial.
16. To substantiate the argument, learned counsel for the appellant has placed reliance upon a case law 2018 (3) JIC 820 (SC) : Surinder Kumar Khanna Vs. Intelligence Officer, Directorate of Revenue Intelligence. The brief facts of the said case are similar to the present case and according to the case of Surinder Kumar Khanna (supra) on a specific information that narcotic drugs were going to be transported in a truck No. PB 02 AJ 7288, the officers of the Directorate of Revenue Intelligence (for short "DRI") laid picket at a toll barrier and when said Indica Car of white color was intercepted, in the said car two persons, Raj Kumar @ Raju and one Surinder Pal Singh were found. The vehicle was being driven by one Raj Kumar @ Raju whereas Surinder Pal Singh was sitting next to him. When search of the vehicle was made, four packets wrapped with yellowish adhesive tapes were found concealed in the door of Dickey of the car. The gross weight of those four packets was 4.300 Kg. Those four packets were taken into possession. Two representative samples of 5 Gms. each were taken out as per rules. Statements of both the suspects were recorded. From their statements, it transpired that four packets of heroin had been taken from one Mr. Goldy and those bags were to be delivered to a person of African origin near PGI Chandigarh. A complaint under the relevant sections of NDPS Act was lodged against said Raj Kumar @ Raju and Surinder Pal Singh. During investigation involvement of the appellant Surinder Kumar Khanna was said to have been made out. After the appellant was arrested, a supplementary complaint was presented against him and the matter was taken up with the main complaint. The trial court convicted the appellant along with other two accused persons Surinder Kumar Khanna, Raj Kumar @ Raju and Surinder Pal Singh. When the matter came up before the Hon'ble High Court in appeal, the High Court took a view that :-
"5. As regards the appellant, it was observed by the High Court that he was specifically named by co-accused Raj Kumar @ Raju and Surinder Pal Singh in their statements. Apart from such statements nothing was produced on record to indicate the involvement of the appellant. The High Court however found that the case against the appellant was made out. It was observed:
"Offence of abetment under Section 29 of NDPS Act stood established against accused Surinder Kumar Khanna, showing that he was involved in drug trafficking. He was specifically named by accused Raj Kumar @ Raju and Surinder Pal Singh in their statements. Such statements of accused Raj Kumar @ Raju and Surinder Pal Singh recorded under Section 67 of the NDPS Act are admissible in evidence and are not hit by Section 25 of the Evidence Act because the officers of DRI, who had apprehended Raj Kumar @ Raju and Surinder Pal Singh, traveling in an Indica car and effecting recovery from them do not come within the definition of police officers."
The High Court thus affirmed the order of conviction as recorded against the appellant but reduced the sentence to rigorous imprisonment for a period of 10 years and to pay fine of Rs.1 lakh, in default whereof to undergo further rigorous imprisonment for 1 years. Similar orders of sentence were passed in respect of other co-accused namely Raj Kumar @ Raju and Surinder Pal Singh."
17. The said conviction was challenged before the Hon'ble Apex Court. The Hon'ble Apex Court after taking into consideration the earlier pronouncements of Apex Court found that the issue whether statement recorded under Section 67 of NDPS Act can be construed as a confessional statement even if the officer who recorded such statement was not to be treated as a police officer, has now been referred to a larger bench : -
"10. Even if we are to proceed on the premise that such statement under Section 67 of the NDPS Act may amount to confession, in our view, certain additional features must be established before such a confessional statement could be relied upon against a co-accused. It is noteworthy that unlike Section 15 of Terrorist and Disruptive Activities Act, 1987 [Similarly Section 18 of Maharashtra Control of Organized Crime Act, 1999] which specifically makes confession of a co-accused admissible against other accused in certain eventualities; there is no such similar or identical provision in the NDPS Act making such confession admissible against a co-accused. The matter therefore has to be seen in the light of the law laid down by this Court as regard general application of a confession of a co-accused as against other accused.
11. In Kashmira Singh v. State of Madhya Pradesh, (1952) SCR 526, this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. the King, (1949) 76 Indian Appeal 147 at 155 and laid down as under :
"Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King "It does not indeed come within the definition of" 'evidence' contained in section 3 of the Evidence Act, It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination." Their Lordships also point out that it is "obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities."
They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in "support of other evidence." In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated ? ....................
12. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar, (1964) 6 SCR 623 at 631-633 wherein it was observed :
"As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to "lend assurance to other evidence against a co-accused". In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this: "where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence". In Bhuboni Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that "a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence". It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has been cited with approval."
14. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence."
18. The Hon'ble Apex Court also taken into account the law propounded by the Hon'ble Apex Court in the case of Kashmira Singh Vs. State of Madhya Pradesh (supra) which was approved by the Constitution Bench in Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar (1964) 6 SCR 623 at 631-633. On these assertion, learned counsel for the appellant has argued that the Hon'ble Apex Court in the case of Surinder Kumar Khanna (supra) has held that the statement of co-accused recorded under Section 67 of NDPS Act cannot be made basis for conviction against other co-accused persons.
19. Another case law cited by learned counsel for the appellant is (2019) 3 SCC (Cri) 684 : (2019) 8 SCC 811 Mohammed Farsrin v. State. In this case also almost similar view has been taken.
20. Encountering the arguments advanced by learned counsel for the appellant, learned counsel for the Union of India (DRI) Shri Deepak Seth has submitted that from the facts enumerated in this case, it is evident that 180 Kg. of charas was recovered from the said truck of which Rajesh Kumar Mishra was driver and Raju Dubey was cleaner is not disputed and both of them have been convicted for 10 Years' R.I. with a fine of Rs.1.00 Lakh each. It is stated by learned counsel for the DRI that from the statement of driver Rajesh Kumar Mishra and Raju Dubey recorded under Section 67 of NDPS Act, complicity of the present appellant is fully proved and this statement was proved before the trial court as Ext. Ka-4 and Ext. Ka-10, so these statements could be read against the appellant and he could very well be convicted merely on the basis of these two statements. It is also stated that statement of Rajesh Kumar Mishra and Raju Dubey are not confessional statement for the reason that a confession cannot be made from any other person. Infact it is a piece of evidence and if it is corroborated with any other evidence, it is admissible as evidence. If there is proof before the Court that confession made by these two persons is voluntary, truthful, reliable and beyond reproach, then it is an effective piece of evidence to establish the guilty.
21. It is also stated that so far as the possession of the contraband is concerned, the word "possession" has not been defined under the provisions of NDPS Act. The expression "possession" is a polymorphyous term. It does not mean only the physical possession. The word "conscious" means awareness brought on fact. In the present case the appellant Ashu Pandit was well aware of the entire fact and was having actual control over the truck as well as the contraband concealed in the same and, therefore, was infact in conscious possession of the same. At the time of trial of present appellant, neither co-accused Rajesh Kumar Mishra, nor Raju Dubey were accused in the case as their trial was over and they were in jail after conviction. Neither any evidence was led by the appellant in support of his case nor he ever tied to call Rajesh Kumar Mishra or Raju Dubey for cross examining them. So, their statement recorded under Section 67 of NDPS Act remain unrebutted.
22. To substantiate the argument, learned counsel for the DRI has relied upon a case law (2011) 11 SCC 347 : Ram Singh Vs. Central Bureau of Narcotics. In the said case law before the Apex Court following question fall for determination :
"8. In view of the rival submissions questions which fall for determination in this appeal are as follows :
(i) Whether the confessions made before the officers of the Central Bureau of Narcotics are admissible in evidence;
(ii) Whether the confessions made were voluntary in nature and if so without corroboration, can it form the basis for conviction; and
(iii) Whether the appellant can be said to be in possession of the opium or selling the same."
23. While considering these question Hon'ble Apex Court has, after taking into consideration the earlier pronouncements, held as under:
13. This Court had the occasion to consider this question further in the case of Kanhaiyalal vs. Union of India, 2008 (4) SCC 668, wherein it has been held as follows:
"44. In addition to the above, in Raj Kumar Karwal v. Union of India 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 "police officers" 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.
45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case with which we agree, that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a "police officer" within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the NDPS 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 NDPS Act to be used as a confession against the person making it and excludes it from the operation of Section 24 to 27 of the Evidence Act."
14. From what has been observed above, the officers vested with the powers of investigation under the Act are not police officers and, therefore, the confessions recorded by such officers are admissible in evidence. Therefore, the question posed at the outset is answered in the affirmative and it is held that officers of the Central Bureau of Narcotics are not police officers within the meaning of Sections 25 and 26 of the Evidence Act and, hence, confessions made before them are admissible in evidence. In view of aforesaid there is no escape from the conclusion that the confessions made by the appellant before PW 6, Jagdish Mawal and PW 8, Mahaveer Singh are admissible in evidence and cannot be thrown out of consideration.
15. Now we proceed to consider the second question set out at the outset and in order to answer that we deem it appropriate to reproduce Section 24 of the Indian Evidence Act which reads as follows:
"24.Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."
From the plain reading of the aforesaid provision it is evident that a confession made by an accused is rendered irrelevant in criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, threat or promise with reference to the charge against the accused.
16. A confession, if it is voluntary, truthful, reliable and beyond reproach is an efficacious piece of evidence to establish the guilt of the accused. However, before solely acting on confession, as a rule of prudence, the Court requires some corroboration but as an abstract proposition of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made under Section 67 of the Act.
17. Bearing in mind the principles aforesaid, now, we proceed to consider the facts of the present case. Appellant's first confession was recorded by PW 6, Jagdish Mawal on 19th July, 1997 and he was produced before the Court on 20th July, 1997 and he made no grievance in regard to the confession recorded. Another confession was recorded on 20th July, 1997 and, thereafter, he was produced before the Special Judge on 21st July, 1997 and a copy of the police diary was handed over to him. This obviously would had contained the confessions made by him. No complaint about the same was made then also. Thereafter appellant was produced before the Court several times but he never retracted his confession. The appellant retracted the confession made by him for the first time in his statement under Section 313 of the Code of Criminal Procedure. In our opinion, when an accused is made aware of the confession made by him and he does not make complaint within a reasonable time, same shall be a relevant factor to adjudge as to whether the confession was voluntary or not. Here in the present case appellant was produced before the Court on several dates and at no stage he made any complaint before the Special Judge of any torture or harassment in recording the confession. It is only when his statement was recorded under Section 313 of the Code of Criminal Procedure that he retracted and denied making such a confession and went to the extent of saying that his signatures were obtained on blank pages. In the facts and circumstances of the case we are of the opinion that the confessional statements made by the appellant were voluntary in nature and could form the basis for conviction. The view which we have taken above finds support from the judgment of this Court in the case of M. Prabhulal v. Assistant Director, Directorte of Revenue Intelligence, 2003 (8) SCC 449, in which it has been held as follows:
"It has been established that the Customs Office was about 20 km from the place where the truck and the car were apprehended. Having regard to the large quantity of the heroin, the said vehicles with Accused 2, 3 and 6 were brought to the Customs Office. Further, Accused 1 and 2 did not know Tamil. A Hindi-knowing officer had to be arranged. There was, under the circumstances no delay in recording the statements of the appellants. Further, it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial Judge under Section 313 of the Code of Criminal Procedure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of the appellants' conviction."
20. Same view has been reiterated by this Court in the case of Kanhaiyalal (supra) in which it has been observed as follows :
"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 Section 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."
The second question posed at the outset is thus answered accordingly.
21. Now we proceed to consider the last question, i.e, whether the appellant can be held guilty for being in possession or involved in selling the opium so as to attract the mischief of Section 8/18 of the Act.
22. In sum and substance the confession of the appellant is that he was working in the hotel for the last two months and brought the opium from the house of the hotel-owner to the hotel, where it was being sold in tablets to the truck-drivers. In the confession appellant has not stated or for that matter none of the witnesses have deposed that he was involved in selling the opium-tablets. Therefore, the appellant cannot be held guilty for selling opium.
23. Whether in the state of evidence appellant can be held guilty for possessing the opium only on the ground that he brought the opium from the house of the owner to the hotel is another question which requires adjudication.
24. It is trite that to hold a person guilty, possession has to be conscious. Control over the goods is one of the tests to ascertain conscious possession so also the title. Once an article is found in possession of an accused it could be presumed that he was in conscious possession. Possession is a polymorphous term which carries different meaning in different context and circumstances and, therefore, it is difficult to lay down a completely logical and precise definition uniformly applicable to all situations with reference to all the statutes. A servant of a hotel, in our opinion, cannot be said to be in possession of contraband belonging to his master unless it is proved that it was left in his custody over which he had absolute control.
25. Applying the aforesaid principle when we consider the facts of the present case it is difficult to hold that opium was in possession of the appellant. There is no evidence on record to suggest that the appellant was in occupation of the room from where opium was recovered. Further the evidence clearly points out that title to the opium vested in the owners of the hotel. The confession given by the appellant was only that he was servant of the owners of the hotel from where the opium was recovered. In the face of the state of evidence it is difficult to hold that the appellant was in conscious possession of the opium. Section 18 of the Act prescribes punishment for possession and that possession, in our opinion, has to be conscious. In the facts of the present case it is difficult to hold that the appellant was in possession of the opium and, therefore, his conviction and sentence cannot be sustained."
24. Another case law relied by learned counsel for the DRI is (2003) 7 SCC 465 : Madan Lal and another V. State of H.P., in this case law the Hon'ble Apex Court while interpreting the word "possession" has held as under : -
"22. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of
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all statutes. 23. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. 24. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control. 25. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD). 26. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles." 25. After hearing the learned counsel for the parties and perusing the case laws cited from the respective sides, I am of the view that the facts of the case of Surinder Kumar Khanna (supra) are akin to the present case. In the present case the appellant was neither arrested on the spot, nor any incriminating article was recovered from his house when a search was made. Even the prosecution wholly failed to establish that the said truck was in any way connected with the appellant or the same was at any time in real or constructive possession/control of the appellant. The prosecution failed to establish the ownership of the truck and no evidence was there pertaining to any connection of the said vehicle with the appellant. So, from the entire material on record, it is evident that except the statement of these two co-accused persons Rajesh Kumar Mishra and Raju Dubey, there is no other material on record against the appellant to show his complicity in the crime. The submission of the learned counsel for the opposite party that the appellant should have summoned co-accused Rajesh Kumar Mishra and Raju Dubey for cross examination does not suit to the reasoning, as it was for the prosecution to establish its case against the appellant beyond all reasonable doubts. So, if the prosecution was relying upon the statement of these two co-accused persons Rajesh Kumar Mishra and Raju Dubey, they should have been produced before the Court and should have afforded an opportunity of cross examination to the appellant. 26. To my view, it would not be safe to rely upon the statement of these two persons recorded under Section 67 NDPS Act as the appellant was not afforded any opportunity of cross examination to these two co-accused persons. So, I fully agree with the case of Surinder Kumar Khanna (supra) and to my view it would not be safe to uphold the conviction of the appellant only on basis of statements of co-accused Rajesh Kumar Mishra and Raju Dubey recorded under Section 67 of NDPS Act. To my view the learned trial court has wrongly convicted the appellant as stated above. There was no cogent and reliable evidence against the appellant. So, to my view the judgment of the trial court suffers from manifest error of law and fact, which deserved to be set aside. 27. Accordingly, the conviction recorded by the trial court by means of judgment and order dated 12.07.2013, passed by the learned Additional District & Sessions Judge, Court No.8, Lucknow in Criminal Case No.281A of 2006 (Union of India Vs. Aashu Pandit @ Aashu Bajpai @ Aash Narayan Sharma) is set aside. Appeal is allowed. Appellant is acquitted of all the charges leveled against him. 28. Appellant is in jail. Let he be set free at once, if not wanted in any other case. 29. Let a copy of the judgment along with the lower court record be transmitted to the trial court concerned for compliance and necessary action.