SURINDER KUMAR KHANNAversusINTELLIGENCE OFFICER DIRECTORATE OF REVENUE INTELLIGENCE

338                     [2018]REPORTS
              SUPREME COURT    9 S.C.R. 338                [2018] 9 S.C.R.


A                     SURINDER KUMAR KHANNA
                                      v.
                 INTELLIGENCE OFFICER DIRECTORATE
                     OF REVENUE INTELLIGENCE
B                      (Criminal Appeal No. 949 of 2018)
                                JULY 31, 2018
                    [ABHAY MANOHAR SAPRE AND
                       UDAY UMESH LALIT, JJ.]

C            Narcotic Drugs and Psychotropic Substances Act, 1985 – s.21
      r/w. s.29 – Conviction of appellant under, based on confessional
      statements of co-accused – Propriety of – Held: Confessional
      statement of co-accused cannot by itself be taken as a substantive
      piece of evidence against another co-accused and can at best be
D     used or utilized in order to lend assurance to the Court – In the
      present case, apart from the statements of co-accused there is no
      material suggesting involvement of the appellant in the crime in
      question – 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 – Orders of conviction and sentence
E     against the appellant set aside – Appellant acquitted – Evidence
      Act, 1872 – ss.24, 25 and 27 – Terrorist and Disruptive Activities
      Act, 1987 – s.15.
            Allowing the appeal, the Court

F           HELD: 1.1 Unlike Section 15 of Terrorist and Disruptive
      Activities Act, 1987 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.
      [Para 10] [344-D-E]
G
            1.2 In the present case apart from the statements of co-
      accused there is no material suggesting involvement of the
      appellant in the crime in question. On the touchstone of law laid
      down by Supreme Court such a confessional statement of a co-
      accused cannot by itself be taken as a substantive piece of
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                                    338
       SURINDER KUMAR KHANNA v. INTELLIGENCE OFFICER                   339
            DIRECTORATE OF REVENUE INTELLIGENCE


evidence against another co-accused and can at best be used or         A
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. [Para 14] [347-F-H; 348-A]
                                                                       B
      Hari Charan Kurmi and Jogia Hajam v. State of Bihar
      [1964] 6 SCR 623 – followed.
      Kashmira Singh v. State of Madhya Pradesh [1952] SCR
      526 – relied on.
      Kanhaiyalal v. Union of India (2008) 4 SCC 668 :                 C
      [2008] 1 SCR 350 ; Tofan Singh v. State of Tamil Nadu
      (2013) 16 SCC 31 : [2013] 9 SCR 962 ; Bhuboni Sahu
      v. The King (1949) 76 Indian Appeal 147 ; State v. Nalini
      (1999) 5 SCC 253 : [1999] 3 SCR 1 – referred to.
                       Case Law Reference                              D
       [2008] 1 SCR 350           referred to          Para 7
       [2013] 9 SCR 962           referred to          Para 8
       [1952] SCR 526             relied on             Para 11
       [1964] 6 SCR 623           followed             Para 12         E

       [1999] 3 SCR 1             referred to          Para 13


      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 949 of 2018.                                                       F
      From the Judgment and Order dated 21.12.2016 of the High Court
of Punjab & Haryana at Chandigarh in Crl. Appeal No.D-798-DB/2014.
     Jayant Bhushan, Sr. Adv., Pahlad Singh Sharma, Ms. Kisalaya
Shukla, Krishna Kant Shukla, Reeja Varghese, Ketan Pant, Tushar
                                                                       G
Bhushan, Advs. for the Appellant.
     Maninder Singh, ASG, R. Balasubramanian, Rohit Bhatt,
Prabhas Bajaj, Sanjay Kumar Tyagi, B. Krishna Prasad, Advs. for the
Respondent.
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340            SUPREME COURT REPORTS                          [2018] 9 S.C.R.


A           The Judgment of the Court was delivered by
            UDAY UMESH LALIT, J. 1 Special Leave to Appeal granted.
            2. This appeal challenges the correctness of Judgment and Order
      dated 21.12.2016 passed by the High Court of Punjab and Haryana at
      Chandigarh in Criminal Appeal No.798 of 2014 by which the High Court
B
      affirmed the conviction of the appellant for the offences punishable under
      Section 21(c) read with Section 29 of The Narcotic Drugs and
      Psychotropic Substances Act, 1985 (‘NDPC Act’, for short).
      3.   According to the Prosecution:-
C          a. On a specific information that narcotic drugs were going to be
           transported from Jammu side to Chandigarh via Hoshiarpur in a
           white colour Indica car bearing registration no.PB-02AJ-7288, the
           officers of Directorate of Revenue Intelligence (for short ‘DRI’)
           laid picket at toll barrier at Hoshiarpur-Garhshankar road. At 10:35
           hours, they intercepted an Indica car of white colour which was
D          coming from Hoshiarpur side bearing registration No.PB-02AJ-
           7288. The car was being driven by one Raj Kumar @ Raju whereas
           one Surinder Pal Singh was sitting next to him. To ensure safe
           search of the car and personal search of occupants, the car was
           taken to the office of Superintendent, Central Excise Range, Model
E          Town, Hoshiarpur. The officers of DRI served notice under Section
           50 of the NDPS Act upon said Raj Kumar @ Raju and Surinder
           Pal Singh.
           b. As desired by said suspects, their personal searches and that of
           the car were conducted in the presence of independent witnesses
F          and Shri SJS Chugh, Senior Intelligence Officer. Personal searches
           of the suspects did not result in recovery of any incriminating
           material. However, when the car was searched, 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
           came to 4.300 kg.
G
           c. Each of those packets was containing white colour granules/
           powder which gave a very pungent smell. The pinch of each packet
           was tested, which showed the presence of heroin. The recovered
           heroin weighing 3.990 kgs was valued at Rs.19,95,000/-. Those
           four packets were taken into possession. Two representative
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      SURINDER KUMAR KHANNA v. INTELLIGENCE OFFICER                          341
 DIRECTORATE OF REVENUE INTELLIGENCE [UDAY UMESH LALIT, J.]


     samples of 5 gms each were taken out from each of the packets as        A
     per rules. Indica car was also seized by the officers of DRI.
     Statements of both the suspects were recorded. From their
     statements, it transpired that four packets of heroin had been taken
     from one Mr. Goldy r/o Vijaypur, Jammu and those packets were
     to be delivered to a person of African origin near PGI Chandigarh.
                                                                             B
     d. Initially a complaint under Sections 21, 22, 23, 28, 29 and 60 of
     the NDPS Act was lodged against said Raj Kumar @ Raju and
     Surinder Pal Singh. During investigation, the involvement of the
     present appellant in the drug racket 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          C
     main complaint. After hearing arguments, charges were framed
     against said Raj Kumar @ Raju and Surinder Pal Singh and the
     appellant for the offences under Sections 21, 29 and 60 of the NDPS
     Act.
       4. The prosecution, in support of its case examined four witnesses.   D
After hearing submissions, the trial court convicted and sentenced all
three accused. The appellant was convicted under Section 21(c) read
with Section 29 of the NDPS Act and was sentenced to undergo rigorous
imprisonment for 12 years and to pay a fine of Rs.1 lakh, in default
whereof to undergo further rigorous imprisonment for three years. Similar    E
orders for conviction and sentence were recorded against other two
accused namely Raj Kumar @ Raju and Surinder Pal Singh. All three
convicted accused preferred appeals; namely Criminal Appeal No.D-
955-DB-2013 was filed by Raj Kumar @ Raju and Surinder Pal Singh
while Criminal Appeal No.D-798-DB-2014 was preferred by the
appellant. Both these appeals were heard together by the High Court.         F

       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            G
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
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342               SUPREME COURT REPORTS                       [2018] 9 S.C.R.


A            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
B
             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
C     to undergo further rigorous imprisonment for 1½ years. Similar orders
      of sentence were passed in respect of other co-accused namely Raj
      Kumar @ Raju and Surinder Pal Singh.
             6. In this appeal challenging the correctness of the conviction and
      sentence rendered as against the appellant, it was submitted by Mr.
D     Jayant Bhushan, learned Senior Advocate that apart from the so called
      statements of co-accused Raj Kumar @ Raju and Surinder Pal Singh
      there was nothing against the appellant and that he was neither arrested
      at the site nor was the contraband material in any way associated with
      him. Mr. Maninder Singh, learned Additional Solicitor General appearing
      for the respondent however supported the judgment of conviction and
E     sentence rendered against the appellant. He placed on record call data
      reports showing that around the time when the co-accused was arrested,
      the appellant was in touch with a person named Chaudhary from Dubai.
      The learned Additional Solicitor General however fairly accepted that
      apart from the statements of the co-accused there was nothing to link
F     the appellant with said convicted accused. The call data reports also did
      not indicate that around the time when co-accused were apprehended,
      the appellant was in touch with either of them.
             7. For the present purposes, we will proceed on the footing that
      the statements of co-accused were recorded under and in terms of Section
      67 of the NDPS Act. As regards such statements, a bench of two Judges
G     of this Court after referring to and relying upon the earlier Judgments,
      observed in Kanhaiyalal v. Union of India1, as under:
             “45. Considering the provisions of Section 67 of the NDPS Act
             and the views expressed by this Court in Raj Kumar Karwal
      1
          (2008) 4 SCC 668
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         SURINDER KUMAR KHANNA v. INTELLIGENCE OFFICER                         343
    DIRECTORATE OF REVENUE INTELLIGENCE [UDAY UMESH LALIT, J.]


       case2 with which we agree, that an officer vested with the powers       A
       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
                                                                               B
       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
       Sections 24 to 27 of the Evidence Act.”
       8. Later, another bench of two Judges of this Court in Tofan Singh
v. State of Tamil Nadu3 was of the view that the matter required               C
reconsideration and therefore, directed that the matter be placed before
a larger bench. It was observed in Tofan Singh (supra) as under:
       “40. In our view the aforesaid discussion necessitates a re-look
       into the ratio of Kanhaiyalal case. It is more so when this Court
       has already doubted the dicta in Kanhaiyalal in Nirmal Singh            D
       Pehlwan4 wherein after noticing both Kanhaiyalal as well as
       Noor Aga5, this Court observed thus: (Nirmal Singh Pehlwan
       case, SCC p. 302, para 15)
           “15. We also see that the Division Bench in Kanhaiyalal case
           had not examined the principles and the concepts underlying
           Section 25 of the Evidence Act, 1872 vis-à-vis Section 108 of       E
           the Customs Act and the powers of a Customs Officer who
           could investigate and bring for trial an accused in a narcotic
           matter. The said case relied exclusively on the judgment in
           Raj Kumar case. The latest judgment in point of time is Noor
           Aga case which has dealt very elaborately with this matter.         F
           We thus feel it would be proper for us to follow the ratio of the
           judgment in Noor Aga case particularly as the provisions of
           Section 50 of the Act which are mandatory have also not been
           complied with.”
       41. For the aforesaid reasons, we are of the view that the matter
                                                                               G
       needs to be referred to a larger Bench for reconsideration of the
       issue as to whether the officer investigating the matter under the
       NDPS Act would qualify as police officer or not.
2
  (1990) 2 SCC 409
3
  (2013) 16 SCC 31
4
  (2011) 12 SCC 298
5
  (2008) 16 SCC 417                                                            H
344             SUPREME COURT REPORTS                                [2018] 9 S.C.R.


A            42. In this context, the other related issue viz. whether the statement
             recorded by the investigating officer under Section 67 of the Act
             can be treated as confessional statement or not, even if the officer
             is not treated as police officer also needs to be referred to the
             larger Bench, inasmuch as it is intermixed with a facet of the 1st
             issue as to whether such a statement is to be treated as statement
B
             under Section 161 of the Code or it partakes the character of
             statement under Section 164 of the Code.”
             9. Thus the issue whether statement recorded under Section 67
      of the NDPS Act can be construed as a confessional statement even if
      the officer who recorded such statement was not to be treated as a
C     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
D     noteworthy that unlike Section 15 of Terrorist and Disruptive Activities
      Act, 19876 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
E     the light of the law laid down by this Court as regards general application
      of a confession of a co-accused as against other accused.
             11. In Kashmira Singh v. State of Madhya Pradesh7, this Court
      relied upon the decision of the Privy Council in Bhuboni Sahu v. The
      King8 and laid down as under:
F                “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
G            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
      6
        Similarly: Section 18 of Maharashtra Control of Organised Crime Act, 1999
      7
        (1952) SCR 526
      8
        (1949) 76 Indian Appeal 147 at 155
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          SURINDER KUMAR KHANNA v. INTELLIGENCE OFFICER                           345
     DIRECTORATE OF REVENUE INTELLIGENCE [UDAY UMESH LALIT, J.]


          the accused, and it cannot be tested by cross-examination.” Their       A
          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      B
          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       C
          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 ?
          In our opinion, the matter was put succinctly by Sir ‘Lawrence          D
          Jenkins in Emperor v. Lalit Mohan Chuckerbutty9 where he
          said that such a confession can only be used to “lend assurance to
          other evidence against a co-accused “or, to put it in another way,
          as Reilly J. did in In re Periyaswami Moopan10
              “the provision goes no further than this—where there is             E
              evidence against the co-accused sufficient, if believed, to
              support his conviction, then the kind of confession de- scribed
              in section 30 may be thrown into the scale as an additional
              reason for believing that evidence.”
             Translating these observations into concrete terms they come         F
          to this. The proper way to approach a case of this kind is, first, to
          marshal the evidence against the accused excluding the
          confession altogether from consideration and see whether, if it is
          believed, a conviction could safely be based on it. If it is capable
          of belief independently of the confession, then of course it is not     G
          necessary to call the confession in aid. But cases may arise where
          the judge is not prepared to act on the other evidence as it stands
          even though, if believed, it would be sufficient to sustain a
9
     [1911] I.L.R. 38 CAl. 559 at 588
10
      [1931] I.L.R. 54 Mad. 75 at 77.
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346                SUPREME COURT REPORTS                         [2018] 9 S.C.R.


A               conviction. In such an event the judge may call in aid the
                confession and use it to lend assurance to the other evidence and
                thus fortify himself in believing what without the aid of the
                confession he would not be prepared to accept.”
            12. The law laid down in Kashmira Singh (supra) was approved
B     by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia
      Hajam v. State of Bihar11 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
C               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
D               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
E               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
F               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
G               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
      11
           (1964) 6 SCR 623 at 631-633
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          SURINDER KUMAR KHANNA v. INTELLIGENCE OFFICER                            347
     DIRECTORATE OF REVENUE INTELLIGENCE [UDAY UMESH LALIT, J.]


          the confession into consideration and thereby, no doubt, makes it        A
          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
                                                                                   B
          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              C
          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
                                                                                   D
          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               E
          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.”
      13. The law so laid down has always been followed by this Court
except in cases where there is a specific provision in law making such             F
confession of a co-accused admissible against another accused..12
       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            G
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
12
     For example: State vs. Nalini, (1999) 5 SCC 253, paras 424 and 704
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348            SUPREME COURT REPORTS                          [2018] 9 S.C.R.


A     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
B
      other offence.


      Divya Pandey                                                 Appeal allowed.


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