Holding

The appeal is dismissed; the High Court’s acquittal stands because the statutory safeguards under Sections 42, 55 and 67 of the NDPS Act were not complied with and the retracted confessions lacked independent corroboration.

Summary

The case concerned the conviction of Bal Mukund, Basanti Lal and a third accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 based primarily on confessional statements recorded after a raid conducted on secret information. The Supreme Court held that the police failed to comply with mandatory statutory requirements: the secret information was not reduced to writing or communicated to superiors as required by Section 42, the sample‑taking procedure under Standing Instruction No. 1/88 and Section 55 was defective, and the confessions were retracted and not corroborated by independent evidence. Consequently, the trial court’s reliance on these confessions violated the provisions of Sections 42, 55 and 67, and the High Court’s acquittal was upheld. The Court also reiterated that an appellate court cannot disturb a judgment of acquittal merely because another view is possible.

Issues considered

The police complied with the mandatory procedural requirements of Section 42 of the NDPS Act in recording and communicating secret information.
Whether retracted confessional statements under Section 67 can be the sole basis for conviction of the accused and of co‑accused.
Whether the sample‑taking and seizure procedures complied with Standing Instruction No. 1/88 and Section 55 of the NDPS Act.
Whether the appellate court may interfere with a judgment of acquittal on the basis of alternative interpretations of the evidence.

Legislation cited

Indian Evidence Act, 1872s. 1388, s. 25, s. 26, s. 30
Narcotic Drugs and Psychotropic Substances Act, 1985s. 42, s. 55, s. 67, s. 8/18, s. 8/27

Subjects

NDPS ActSection 42Section 55Section 67confessionretractionsearch and seizuresample takingprocedural complianceappellate jurisdictionacquittal

Judgment

[2009] 5 S.C.R. 205
...
'
... U.0.1.
v.
A

BAL MUKUND & ORS.
(Criminal Appeal No. 1397 of 2007)
., MARCH 31, 2009
B
[S.B. SINHA, DR. MUKUNDAKAM SHARMA AND
H.L. DATTU, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985
- ss. 42, 55 and 67 - Standing Instruction No. 1188 - Receipt c
of secret information - Search leading to seizure of
contraband - Trial court convicting the accused - High Court
setting aside the conviction - Justification of- Held: On facts,
justified - There was non-compliance of mandatory
' )( requirements/statutory provisions in respect of search, seizure D
and taking of samples - Also there was doubt as to whether
the purported confessions by accused were voluntary -
Moreover the confessions were subsequently retracted and
- there was no independent corroboration - Evidence -
Confessional statement - Appreciation of. E
Interpretation of Statutes - Strict construction - NDPS Act
- Act providing for stringent punishment - Requirement of
scrupulous compliance of the statutory provisions - Narcotic
Drugs and Psychotropic Substances Act, 1985.
o1 F
Appeal - Appeal against acquittal - Interference by
Appellate Court - Ambit and scope - Held: Appellate court
not to interfere with judgment of acquittal only because another
view is possible.
G
Pursuant to receipt of secret information, respondent
•
y nos. 1 and 2 were searched and contraband was
recovered from the cement gunny bags carried by them.
According to the prosecution, 10 Kg. of opium packed in
205 H
206 SUPREME COURT REPORTS • [2009] 5 S.C.R.

A 5 polythene bags of 2 Kg each were recovered from each
of them. Respondent nos.1 and 2 purportedly made
confession before authorities under the Narcotic Drugs
and Psychotropic Substances Act, 1985 that they were
carrying the contraband at the behest of respondent no.3
B to be delivered at a particular destination. Even though -r·
subsequently the respondents retracted the purported
confessions made by them, the trial court placed reliance
upon the same and convicted respondent nos.1 and 2
under section 8/18 of the Act and respondent 3 under
c section 8/27 of the Act. On appeal, the High Court set
aside the conviction. Hence the present appeal.

Dismissing the appeal, the Court

HELD:1.1. Section 42 of the Narcotic Drugs and
D Psychotropic Substances Act, 1985 mandates
compliance of the requirements contained therein, viz.,
if the officer has reason to believe from personal
knowledge or information given by any person which
should be taken down in writing that any drug or
E psychotropic substance or controlled substance in
respect of which an offence punishable under the Act
has been committed, he is empowered to exercise his
power enumerated in clauses (a) and (b) of Section 42(1)
of the Act between sunrise and sunset. Subject to just
F exceptions, thus; taking down the information in writing
is, therefore, very necessary to be complied with. Sub-
section (2) of Section 42 of the Act provides that such an
information reduced in writing should be communicated
to his immediate superior officers within seventy two
G hours. [Para 18] [217-G-H; 218-A-C-D]
1.2. In the present case, respondent Nos. 1 and 2
were arrested on the basis of some secret information
received by the informant. The said purported secret
information revealed the exact place, time and quantity
H
U.0.1. v. BAL MUKUND & ORS. 207

- of the narcotics respondent nos.1 and 2 would be
carrying. It was, however, neither recorded in writing nor
was forwarded to the superior officers. No explanation
has been offered as to why the mandatory requirements
A

of law could not be complied with. [Para 17] [217-E-F;
-. 218-E] 8
2.1. In the present case, the trial court failed and/ or
neglected to notice that the respondent Mo. 3 had
retracted his confession at the earliest possible
opportunity. He could have, therefore, been convicted
only if independent corroboration thereof was available.
c
No contraband was found from his possession. He was
prosecuted for entering into a conspiracy in regard to
commission of the offences under Section 8/18 of the Act
with the respondent Nos. 1 and 2. Such conspiracy was
.. _ ;r' not proved by the prosecution. No evidence whatsoever D
was brought on record in that behalf. The High Court,
therefore, rightly accepted the contention of the ·
respondent no.3. [Para 19] [218-F-H]

2.2. The situation in which such purported E
statements have been made cannot also be lost sight of.
The purported raid was conducted early in the morning.
A large number of police officers including high ranking
officers were present. Search and seizure had been
' ..
..... effected. It is doubtful whether respondent nos. 1 and 2 F
had made such statements on the road itself. [Para 26]
[272-E-F]

2.3. Exhibits 20 and 21 categorically show that
respondent nos. 1 and 2 were interrogated. If they were
interrogated while they were in custody, it cannot be said G
that they had made a voluntary statement which satisfies
'f the conditions precedent laid down under Section 67 of
the Act. In the backdrop of the aforementioned events, it
is difficult to accept that such statements had been made
by them although they had not been put under arrest. As H
208 SUPREME COURT REPORTS (2009] 5 S.C.R.

A the authorities under the Act can always show that they
had not formally been arrested before such statements •
were recorded, a holistic approach for the
aforementioned purpose is necessary to be taken. [Para ,
27] [222-G-H; 223-A]
8
2.4. The court while weighing the evidentiary value
of such a statement cannot lose sight of ground realities.
Circumstances attendant to making of such statements
·should be taken into consideration. [Para 29] [224-C]
C 2.5. The Act provides for a stringent punishment.
Where a statute confers drastic powers and seeks to
deprive a citizen of its liberty for not less than ten years,
and making stringent provisions for grant of bail,
scrupulous compliance of the statutory provisions must
o be insisted upon. While considering a case of present
nature where two persons may barely read and write
Hindi, are said to have been used as carrier containing
material of only 1.68% of narcotics, a convictionshould
not be based merely on the basis of a statement made
E under Section 67 of the Act without any independent
corroboration particularly in view of the fact that such
statements have been retracted. [Paras 30 and 31] (224-
0-F]
2.6. In the facts and circumstances of this case, the
F purported confessions made by the respondent Nos. 1
and 2 could not in absence of other corroboration form
the basis of conviction. [Para 38] [228-E]
A.K. Mehaboob v. Intelligence Officer, Narcotics Control
Bureau (2001) 10 SCC 203 and M. Prabhulal v. Assistant
G Director, Directorate of Revenue Intelligence (2003) 8 SCC
449, distinguished.

Naresh J. Sukhawani v. Union of India 1995 Supp (4)
SCC 663; State (NCT of Delhi) v. Navjot Sandhu Alias Afsan
H G.uru (2005) 11 SCC 600; D.K. Basu v. State of West Bengal
U.0.1. v. BAL MUKUND & ORS. 209
.,
(1997) 1 SCC 416; State of Punjab v. Baldev Singh (1999) 3 A
SCC 977; Ritesh Chakeravarty v. State of Madhya Pradesh
JT 2006 (12) SC 416; Noor Aga v. State of Punjab and
another, 2008 (9) SCALE 681; Kanhaiyala/ v. Union of India
,, ., (2008) 4 SCC 668; Francis Stanly Alias Stalin v. Intelligence
Officer, Narcotic Control Bureau, Thiruvananthapuram (2006) B
13 SCC 210; Mohtesham Mohd. Ismail v. Sp/. Director,
Enforcement Directorate and Another (2007) 8 SCC 254 and
Ravindran Alias John v. Superintendent of Customs (2007)
6 sec 410, referred to.

3. Besides, Standing Instruction No. 1/88, issued
c
under the Act, lays down the procedure for taking
samples. PW-7 took samples of 25 grams each from all
the five bags and then mixed them and sent to the
laboratory, but there is nothing to show that adequate
quantity from each bag had been taken which was a D
t- x·

requirement in law. Also, PW-7 did not testify as to which
of the bags seized had been sent for analysis. No
statement had been made by him that the bags produced
were the bags in question which were seized or the
contraband was found in them. [Paras 39 and 40] [228- E
F; 229-C]

4. The High Court, for good and sufficient reasons,
arrived at findings of fact; both with regard to
-
~

~
voluntariness of the purported confessions made by the
respondents as also compliance of the mandatory
F

statutory provisions vis-a-vis directions issued by the
Central Government in making search, seizure as also
taking of samples for the purpose of chemical
examination having been doubted, there is no reason G
- i.., why one should take a contrary view as the appellate
court would not interfere with a judgment of acquittal only
because another view is possible. On the other hand, if
I

I
two views are possible, the appellate court shall not
interfere. [Para 41] [229-D-F]
H

l
210 SUPREME COURT REPORTS [2009] 5 S.C.R.
.
A Animireddy Venkata Ramana and Others v.
.Pub/icProsecutor, High Court of Andhra Pradesh (2008) 5
sec 368, relied on.
Case Law Reference:
y
B 1995 Supp (4) sec 663 referred
to Para 21

(2005) 11 sec 600 referred to Para 23

(1997) 1 sec 416 referred to Para 27
c
(1999) 3 sec 977 referred to Para 27

2008 (9) SCALE 681 relied on Para 28

D
JT 2006 (12) SC 416

(2001) 10 sec 203
relied on

distinguished
Para 32

Para 32 ~. .
(2003) 8 sec 449 distinguished Para 33

(2008) 4 sec 668 referred to Para 34

E (2006) 13 sec 210 referred to Para 34

(2001) 8 sec 254 referred to Para 35

(2001) 6 sec 410 referred to Para 36

(2008) s sec 368 relied on Para 41
F ;... ·-
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1397 of 2007.

From the Judgment & Order dated 13.5.2005 of the High
G Court of Madhya Pradesh, Indore Bench, Indore in Criminal
Appeal Nos.964 of 2000 and 1108 of 2000.
y
SLishil Kumar, B.B. Singh, Binu Tamta (for Sushma Suri),
Santosh Kumar (for D.M. Nargolkar), Shakil Ahmed Syed and
Praveena Gatuam (for C.D. Singh) for the appearing parties.
H
U.0.1. v. BAL MUKUND & ORS. 211

The Judgment of the Court was delivered by A
5.8. SINHA, J. 1. Union of India is before us aggrieved
by and dissatisfied with a judgment and order dated
~
13.05.2005 passed by the High Court of Madhya Pradesh at
Indore in Criminal Appeal Nos. 964 and 1108 of 2000.
B
2. The factual matrix involved herein is as under:

Sub-Inspector Bajrang Lal posted in the Office of the
Central Bureau of Narcotics, Ratlam purported to have obtained
a secret information to the effect that the respondent Nos. 1 and c
2 herein Bal Mukund and Basanti Lal would be carrying about
20 Kg. of Opium on the next day. A preventive party allegedly
was formed pursuant to or in furtherance of the said information.
At about 0430 hours on 21.06.1998, they reached Nayapura
' ·' A Phanta on Ratlam Jaora Road. Respondent Nos. 1 and 2 were
D
seen carrying cement gunny bags. They were searched. 10
Kgs. of Opium packed in 5 polythene bag of 2 Kg. each from
each of them were said to have been recovered.

3. The purported confessions of the respondent Nos. 1 and
2 were recorded on 21.06.1998, unofficial translated version E.
whereof reads as under:
I'
"Statement of Respondent No. 1 1
-.;
.<( ... My father is debt ridden to Amritlal Anjana out of Rs.
38000/- out of which Rs. 18000/- has been paid now. Their F
balance is Rs. 20,000/-. This sum of Rs. 38000/- were
given to me by Amritlal Anjana for motor for well and some
amount was taken in cash. Amritlal suggested that if I
wishes to liquidate my father's debt then I should away
opium and give it to suggested destination. I shall give G
good wages against it. A sum of Rs. 3000/- were decided
for carrying the opium. I came from my village Nandwell to ·
Behpur and Basantilal who is my relative. Both met Amritlal
Anjana at 10-00 night at his well Amritlal Anjana by Giving
H
-i
212 SUPREME COURT REPORTS [2009) 5 S.C.R.

A 10-000 Kgs each of us with the opium and directly to go
on feet towards Nandi. He also said he would be available
nearly Nandi Phanta. He said, he would give Rs. 3000/-
to each by way of wages when we came on foot by &
carrying 10-000 Kgs of opium and reached Nayapura r
B Phatak then Narcotics officers detained us and took our
formal search. He found opium in the bag mean for cement
weight 10-000 Kgs. Which was seized by Narcotics Deptd.
Raltmal and I was detained for carrying illicit opium weight
10-000 Kg. under the office of N.D.P.C. This statement I
am giving voluntarily and in full consciousness whether is
c spoken is underwritten to which I having read and finding
it to be correct put my signature.

Statement of Respondent No. 2

D .. . On further interrogation stated that they are opium ""' ..
weighing 1O kg and 10 kg opium from my colleague has
been recovered for which on interrogation I state truly that
on 20-06-1998 Balmukund came to my village Behpur and
said that we have to go to Maukhedi at the residence of
E Amritlal S/o Raghunath Anajan therefore I alongwith
Balmukund proceeded for Behpur come to Maukhedi who
Amritlal Anjana and that we should go to his well where I
shall give you opium or reached the well Amritlal Anjana
gave me in a bag of 10 kg of opium and 10 kg to my
colleague Balmukund and we should go on foot on ~
...
F
unconstructed road and reached Nanda Phatak where I will
be awaiting nearly and collect the opium, we were coming
on foot towards Nandi then Narcotics officer took our
search then in the bag. I was carrying opium weighing 10
kg. was recovered and 10 kg. of opium was also
G recovered from my colleagues Balmukund. The opium so
recovered was taken into gov~rnment possession under 'r

N.D.P.S. Act, 1985. The statement which I have made is
in full consciousness, voluntarily and whatever I stated is
only written to which I hearing/ read put my signature."
H
U.0.1. v. BAL MUKUND & ORS. [S.B. SINHA, J.] 213

::,.
4. Indisputably, they were arrested. Thereafter also they A
made similar statements. However, as no reliance has been
placed thereupon, it is not necessary for us to refer thereto.

5. On a purported confession made by them that they were
carrying the said contraband at the behest of Accused No. 3 B
-' ~
Amritlal, a search was conducted in his house at about 1.30
p.m. No contraband, however, was recovered.

6. Confessional statement otthe respondent No. 3 was
also recorded relevant portion whereof reads as under:
c
"I state that the 20 Kg of opium which has been seized by
Narcotics Deptt. at Nayapura Fantak that I had given to
Balmukund & Basantilal which was to be given on foot
near Mewasa to a person named Ranjeet who is owner
of Dahba to deliver to him about the seized opium. I further D
.... .c<' state that my family has a licence for the said opium. I had
surreptitiously kept 7 to 8 kg of opium which I had kept on
the well about which none of my family member had any
knowledge to this opium by making aboultertion. I make
20-000 Kg gave to 10-00 to Balmukund & Basantilal for E
dealing to Ranjeet. I further state that I had never done
business of selling opium out of greed I did this act. I was
totally aware that there are strict provision for keeping illicit
opium under N.D.P.S. Act, 1985 but still out of greed I have
done this deal.
_,, F
"4 This I have truly state. This I have stated in fully
consciousness voluntarily and whatever I have spoken is
orally written to which I having read, understanding the
same put my signature."
G
7. Respondent No. 3 was arrested at 6.30 p.m. He
purported to have made another confession before the
., authorities under the Act. He was produced before the Court
on 22.06.1998. The investigating officer sought for and
obtained his remand for a day which was granted. He purported H
214 SUPREME COURT REPORTS [2009] 5 S.C.R.

~-

A to have made another statement on 22.06.1998. On his
production before the learned Special Judge under the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short "the
Act") on 23.06.1998, he was taken to judicial custody.

8. Respondent No. 3 immediately thereafter sent an
B
application to the learned Special Judge, Ratlam retracting his t

confession. The said application was sent through the
Superintendent of District Jail, Ratlam on 24.06.1998. It was
received in the Court of the Special Judge on the same day.
Respondent Nos. 1 and 2 also filed applications retracting their
c confessions on or about 5.09.1998.

9. The contraband recovered from the respondent Nos. 1
and 2 were sent for chemical analysis. The report dated
15.07.1998 of the Assistant Chemical Examiner, Govt. Opium
D and Alkaloid Works shows presence of 01.68% and 02.05%
of Morphine by B.P. Extraction from the first sample and the ... "'
second sample, respectively.

10. The manner in which a sample of narcotic is required
to be taken has been laid down by the Standing Instruction No.
E
1/88, the relevant portion whereof reads as under:

"(e) While drawing one sample in duplicate from a
particular lot, it must be ensured that representative drug
in equal quantity is taken from each package/ container
F of that lot and mixed together to make a composite whole
from which the samples are drawn for that lot." ~

11. Before the learned Special Judge, no independent
witness was examined. Whereas the learned Special Judge
G framed charges under Section 8/18 of the Act against the
respondent Nos. 1 and 2; the respondent No. 3 was charged
under Section 8/27 thereof

12. The learned Special Judge relying on or on the basis
of the purported confessions made by the respondents
H recorded a judgment of conviction and sentence.
U.0.1. v. BAL MUKUND & ORS. [S.B. SINHA, J.) 215

13. The High Court, however, reversed the said findings A
of the learned Special Judge, opining:

(i) Respondent Nos. 1 and 2 could not have been
convicted on the basis of their own confessions,
which had been retracted, as the same had not
,.{
f
8
been corroborated by any independent witness.

(ii) The purported confession made by the respondent
Nos. 1 and 2 was not admissible against the
respondent No. 3.
c
(iii) The purported secret information having been
recorded in writing, as is required under Section 42
of the Act, the prosecution is vitiated in law.

(iv) A sample of narcotics having not been taken in
- "' terms of the Standing Instruction as also in
compliance of Section 55 of the Act, the judgment
of the learned Special Judge was unsustainable.
D

14. Mr. 8.8. Singh, learned counsel appearing on behalf
of the appellant, would contend: E
(i) The High Court committed a serious error insofar
as it failed to take into consideration that the
prosecution case stood amply proved by PW-8 S.K.
Khandelwal who had seized the contraband from
_, F
~ the respondent Nos. 1 and 2 and PW-1 Chemical
Examiner who had proved this report as also PWs.
5 and 7 being the witnesses of seizure.

(ii) Exhibits 20 and 21 being the confessional
statements having been recorded in terms of G
Section 67 of the Act, prior to their arrest, were
.., admissible in evidence not only against themselves
... but also against their co-accused the respondent
No. 3.
216 SUPREME COURT REPORTS [2009] 5 S.C.R.

A (iii) The purported retraction of confession by the
respondent Nos. 1 and 2 having not been retracted
within a reasonable time and having not been
proved as to how and in what manner the same was
obtained from them, i.e., whether by intimidation or
B undue influence; could not have been taken into ~

l
consideration for the purpose of recording a
judgment of acquittal.

(iv) PW-7 having proved the sealing of the box which
was in compliance of Section 57 of the Act and the
c seal having been found to be intact, the High Court
committed a serious error in passing the impugned
judgment.

(v) Having regard to the provisions contained in
Section 134 of the Evidence Act, it was not
D
necessary for the prosecution to prove its case by .. -
examining any independent witness.

15. Mr. Sushil Kumar, learned senior counsel appearing
on behalf of the respondent No. 3, on the other hand, would
E
contend that the purported confession made by the respondent
No. 3 having been retracted at the earliest possible opportunity,
viz., as soon as he was placed in judicial custody, the learned
Trial judge committed a serious error in not considering the said
aspect of the matter and consequently recording a judgment
F of conviction only on the basis of confession by the co-accused.
;..

16. Mr. Santosh Kumar, learned counsel appearing on
behalf of respondent Nos. 1 and 2 would urge:

G (i) The search and seizure having not been carried out
in terms of Standing Instructions No. 1/88, the same
was vitiated in law.
y
(ii) The report of chemical analyzer dated 15.07.1998 ;

prepared by the Asstt. Chemical Examiner clearly
H proves that only 01.68% of the seized articles
U.0.1. v. BAL MUKUND & ORS. [S.B. SINHA, J.] 217

' contained heroine is a pointer to show that had the A
samples been taken in a proper manner, the same
... would have established their innocence.

(iii) The prosecution having committed a flagrant
violation of Section 55 of the Act, the judgment of B
,,>
f
the trial court was rightly set aside by the High
Court.

(iv) PW-7 M.R. Narvale in his evidence having not
identified the bags vis-a-vis the samples taken, the
complicity of the respondents had not been proved. c
(v) Statements recorded on 21.06.1998 as also
22.06.1998 by the respondent NoG. 1 and 2 having
been made while they were admittedly in the
custody of the authorities under the Act and it D
- " having not been proved that there was any element
of voluntariness on their part to make statements
confessing their guilt, the same would be hit by
Sections 25 and 26 of the Evidence Act.
17. Respondent Nos. 1 and 2 were arrested or. the basis E
of some secret information received by the informant. The said
purported secret information revealed the exact place, time and
quantity of the narcotics the respondent Nos. 1 and 2 would be
carrying. It was, however, admittedly neither recorded in writing
nor was forwarded to the superior officers. F

18. Section 42 of the Act mandates compliance of the
requirements contained therein, viz., if the officer has reason
to believe from personal knowledge or information given by any
person which should be taken down in writing that any drug or G
psychotropic substance or controlled substance in respect of
which an offence punishable under the Act has been committed,
he is empowered to exercise his power enumerated in clauses
(a) and (b) of Section 42(1) of the Act between sunrise and
sunset. Subject to just exceptions, thus, taking down the H
218 SUPREME COURT REPORTS [2009] 5 S.C.R.

A information in writing is, therefore, very necessary to be
complied with.

The proviso appended to Section 42(1) of the Act reads
as under:
B "Provided that if such officer has reason to believe that a
"
search warrant or authorisation cannot be obtained without
affording opportunity for the concealment of evidence or
facility for the escape of an offender, he may enter and
~earch such building, conveyance or enclosed place at any
c time between sunset and sunrise after recording the
grounds of his belief."

Sub-section (2) of Section 42 of the Act provides that such
an information reduced in writing should be communicated to
D his immediate superior officers within seventy two hours.
The informat:on was received on the previous night. The " -
purported recovery was made at 5 a.m. Even the Senior
Superintendent of Police was aware thereof, who had received
the information first and directed PW-7 to conduct the raid. No
E explanation has been offered as to why the mandatory
requirements of law could not be complied with.

19. The prosecution case principally hinges on the
purported confessions made by the respondents. The learned
F Special Judge failed and/ or neglected to notice that the
respondent No. 3 had r.etracted his confession at the earliest
possible opportunity. He could have, therefore, been convicted
only if independent corroboration thereof was available.
Admittedly, no contraband was found from his possession. He
G was prosecuted for entering into a conspiracy in regard to
commission of the offences under Section 8/18 of the Act with
the respondent Nos. 1 and 2. Such conspiracy was not proved
by the prosecution. No evidence whatsoever was brought on
record in that behalf. The High Court, in our opinion, therefore,
rightly accepted the contention of the said respondent, stating:
H
U.0.1. v. BAL MUKUND & ORS. [S.B. SINHA, J.] 219

"12. As far as appellant Amritlal is concerned, he was A
apprehended only on the basis of the statement made by
the appellants Bal Mukund and Basantilal. The only
evidence available against him is his confessional
statement recorded under Section 67 of the Act. M.R.
Narvale (PW-7) has stated in his statement that statement B
of Amritlal Anjana Ex. P/24 was recorded by him. The
contents of Ex. P/24 have not been duly proved by the
prosecution. The so called confession has been retracted
by the appellant Amritlal. He cannot be convicted only on
the basis of Ex. P/24. Even the confessional statements c
of co-accused cannot form the basis of his conviction. His
conviction is not based on the evidence and cannot be
sustained."

20. For recording his conviction, confession of the
respondent Nos. 1 and 2 had been taken into consideration. D

21. Mr. 8.8. Singh would urge that the statements made
by the respondent Nos. 1 and 2 purported to be in terms of
Section 67 of the Act were admissible against the co-accused.
Strong reliance in this behalf has been placed on Naresh J. E
Sukhawani v. Union of India [1995 Supp (4) SCC 663] wherein
it was held:

"4. It must be remembered that the statement made before
the Customs officials is not a statement recorded under
Section 161 of the Criminal Procedure Code, 1973. F
Therefore, it is a material piece of evidence collected by
Customs officials under Section 108 of the Customs Act.
That material incriminates the petitioner inculpating him in
the contravention of the provisions of the Customs Act. The
material can certainly be used to connect the petitioner in G
the contravention inasmucfl as Mr Dudani's statement
clearly inculpates not only himself but also the petitioner. It
can, therefore, be used as substantive evidence connecting
the petitioner with the contravention by exporting foreign
currency out of India. Therefore, we do not think that there H
220 SUPREME COURT REPORTS [2009] 5 S.C.R.

A is any illegality in the order of confiscation of foreign
currency and imposition of penalty. There is no ground
warranting reduction of fine."

22. No legal principle has been laid down therein. No
reason has been assigned in support of the conclusions arrived
B
at. If a statement made by an accused while responding to a ~

summons issued to him for obtaining information can be
applied against a co-accused, Section 30 of the Evidence Act
being not applicable, we have not been shown as to under
which other provision thereof, such a confession would be
c admissible for making the statement of a co-accused relevant
against another co-accused. If an accused makes a confession
in terms of the provisions of the Code of Criminal Procedure
or otherwise, his confession may be held to be admissible in
evidence only in terms of Section 30 of the Evidence Act and
D not otherwise. If it is mer~ly a statement before any authority,
the maker may be bound thereby but not those who had been ... -
implicated therein. If such a legal principle can be culled out,
the logical corollary thereof would be that the co-accused would
be entitled to cross-examine the accused as such a statement
E made by him would be prejudicial to his interest.

23. We may notice that in State (NCT of Delhi) v. Navjot
Sandhu Alias Afsan Guru [(2005) 11 SCC 600], this Court has
laid down the law in the following terms:
F "38. The use of retracted confession against the co-
accused however stands on a different footing from the
).
-
use of such confession against the maker. To come to
grips with the law on the subject, we do no more than
quoting the apt observations of Vivian Bose, J., speaking
G for a three-Judge Bench in Kashmira Singh v. State of
M.P. Before clarifying the law, the learned Judge noted with
approval the observations of Sir Lawrence Jenkins that a
confession can only be used to "lend assurance to other
evidence against a co-accused". The legal position was
H then stated thus: (SCR p. 530)
U.0.1. v. BAL MUKUND & ORS. [S.B. SINHA, J.) 221

"Translating these observations into concrete terms they A
come 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
t
based on it. If it is capable of belief independently of the B
confession, then of course it is not 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
conviction. In such an event the judge may call in aid the c
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." (emphasis in original)
·- )I
39. The crucial expression used in Section 30 is "the Court D
may take into consideration such confession" (emphasis
supplied). These words imply that the confession of a co-
accused cannot be elevated to the status of substantive
evidence which can form the basis of conviction of the co-
accused. The import of this expression was succinctly E
_. explained by the Privy Council in Bhuboni Sahu v. R in
the following words: (AIR p. 260)
"[T]he court may take the confession into consideration and
.... thereby, no doubt, makes its evidence on which the court F
may act; but the section does not say that the confessi~n
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 in the case; it can be
put into the scale and weighed with the other evidence." G
24. We may, keeping in view the aforementioned
backdrop, consider the effect of the purported statements
made by the respondent Nos. 1 and 2.
25. Section 67 of the Act reads as under: H
222 SUPREME COURT REPORTS [2009] 5 S.C.R.

A "67 - Power to call for information, etc.

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
B 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
C order made thereunder;

(b) require any person to produce or deliver any document
or thing useful or relevant to the enquiry;

D
(c) examine any person acquainted with the facts and
circumstances of the case."
" -
26. How and at what point of time the said provision was
invoked is not known.

E The situation in which such purported statements have
been made cannot also be lost sight of. The purported raid was
conducted early in the morning. A large number of police
officers including high ranking officers were present. Search and
seizure had been effected. According to the prosecution, each
F of the respondent Nos. 1 and 2 were found to be in possession
of 10 Kg. of narcotics. No information was sought for from them.
It is doubtful whether they had made such statements on the
road itself.

27. Exhibits 20 and 21 categorically show that they were
G interrogated. If they were interrogated while they were in custody,
it cannot be said that they had made a voluntary statement
which satisfies the conditions precedent laid down under
Section 67 of the Act. We, in the backdrop of the
aforementioned events, find it difficult to accept that such
H statements had been made by them although they had not been
U.0.1. v. BAL MUKUND & ORS. [S.B. SINHA, J.] 223

put under arrest. As the authorities under the Act can always A
show that they had not formally been arrested before such
statements were recorded, a holistic approach for the
aforementioned purpose is necessary to be taken.
~
28. This Court in D.K. Basu v. State of West Bengal
"I 8
[(1997) 1 sec 416) laid down the law that if a person in custody
is subjected to interrogation, he must be informed in clear and
unequivocal terms as to his right to silence. This rule was also
invoked by a Constitution Bench of this Court in State of Punjab

- V. Baldev Singh [(1999) 3 sec 977), wherein it was held:

"28. This Court cannot overlook the context in which the
NDPS Act operates and particularly the factor of widespread
c

illiteracy among persons subject to investigation for drug
offences. It must be borne in mind that severer the punishment,

-- " greater has to be the care taken to see that all the safeguards
provided in a statute are scrupulously followed. We are not able
to find any reason as to why the empowered officer should shirk
D

from affording a real opportunity to the suspect, by intimating
to him that he has a right "that if he requires" to be searched
in the presence of a Gazetted Officer or a Magistrate, he shall E
be searched only in that manner. As Page 2956 already
"" observed the compliance with the procedural safeguards
contained in Section 50 are intended to serve dual purpose -
to protect a person against false accusation and frivolous
charges as also to lend credibility to the search and seizure F
~
conducted by the empowered officer. The argument that
keeping in view the growing drug menace, an insistence on
compliance with all the safeguards contained in Section 50 may
result in more acquittals does not appeal to us. If the
empowered officer fails to comply with the requirements of
G
Section 50 and an order or acquittal is recorded on that ground,
the prosecution must think itself for its lapses. Indeed in every
" case the end result is important but the means to achieve it
must remain above board. The remedy cannot be worse than
the disease itself. The legitimacy of judicial process may come
H
224 SUPREME COURT REPORTS [2009] 5 S.C.R.

A under cloud if the Court is seen to condone acts of lawlessness
conducted by the investigating agency during search
operations and may also undermine respect for law and may
have the effect of unconscionably compromising the
administration of justice. That cannot be permitted."
8 [See also Noor Aga v. State of Punjab and another, (2008 (9)
SCALE 681].
29. The court while weighing the evidentiary value of such
a statement cannot lose sight of ground realities.
c Circumstances attendant to making of such statements should,
in our considered opinion, be taken into consideration.
30. Concededly, the Act provides for a stringent
punishment. We, for the purpose of this case, shall proceed on
the assumption, as has been contended by Mr. Singh, that the
D prosecution need not examine any independent witness
although requirements therefor cannot be minimized. [See
Ritesh Chakerava[fy v. State of Madhya Pradesh JT 2006
(12) SC 416 and Noor Aga (supra)].
E 31. Where a statute confers such drastic powers and
seeks to deprive a citizen of its liberty for not less than ten years,
and making stringent provisions for grant of bail, scrupulous
compliance of the statutory provisions must be insisted upon.
While considering a case of present nature where two persons
F may barely read and write Hindi, are said to have been used
as carrier containing material of only 1.68% of narcotics, a
. conviction, in our opinion, should not be based merely on the
basis of a statement made under Section 67 of the Act without
any independent corroboration particularly in view of the fact
that such statements have been retracted.
G
32. Mr. Singh placed strong reliance upon a decision of
this Court in A.K. Mehaboob v. Intelligence Officer, Narcotics
Control Bureau [(2001) 10 SCC 203]. The Bench repelling the
arguments that (i) the statement made by the accused had
H b.een retracted; (ii) the appellant informed the Magistrate that
U.0.1. v. BAL MUKUND & ORS. [S.B. SINHA, J.] 225

the said statement had been coaxed out from him; and (iii) the A
said statement was not corroborated, opined:
"5. There is nothing to indicate that Exhibit P-8 had been

- .
I
elicited from A-2 by any coercion, threat or force and,
therefore, the learned Single Judge of the High Court had
spurned down that contention. Regarding the complaint
alleged to have been made by the appellant Naushad on
11-3-1994, we have perused it. His case therein was that
B

4

he offered himself to be a witness in the case and some
reward was offered for it. It was on the said offer that he
agreed to sign the said statement ... " c
There exists a distinction 'between a case where the
accused himself had stated that he had made the statement

.. "
_,
on the belief that he would be rewarded and a case where such
purported confession had been obtained upon interrogation by
High ranking police officials.
D

33. Yet again in M. Prabhulal v. Assistant Director,
Directorate of Revenue Intelligence [(2003) 8 SCC 449], the
retraction was made only when the accused was being
examined under Section 313 of the Code of Criminal E
Procedure. No credence was given to such a retraction made
after such a long time. This Court taking into consideration the
entire factual matrix involved in the case opined that the

,. confessional statement could not be held to be involuntary and
they were voluntarily made. Such is not the case here. F
We have pointed out several circumstances to show that
the accused had been put under interrogation.
34. Reliance has also been placed on Kanhaiyalal v.
, Union of India [(2008) 4 sec 668]. In that case, no question G
was put in cross-examination to the police officer (PW-9) whose
evidence had been relied upon by the High Court and, thus, his
"' evidence was stated to be corroborative of the statement made
by the accused.
H
226 SUPREME COURT REPORTS [2009] 5 S.C.R.

A However, it is interesting to note that in Francis Stanly
Alias Stalin v. Intelligence Officer, Narcotic Control Bureau,
Thiruvananthapuram [(2006) 13 SCC 210], this Court opined:

B
"15. We are of the opinion that while it is true that a
confession made before an officer of the Department of
Revenue Intelligence under the NDPS Act may not be hit
by Section 25 in view of the aforesaid decisions, yet such
a confession must be subject to closer scrutiny than a
~
-
confession made to private citizens or officials who do not
have investigating powers under the Act. Hence the
c alleged confession made by the same appellant must be
subjected to closer scrutiny than would otherwise be
required.
16. We have carefully perused the facts of the present
D case, and we are of the opinion that on the evidence of 'II
this particular case it would not be safe to maintain the
conviction of the appellant, and he must be given the
benefit of reasonable doubt."
35. In Mohtesham Mohd. Ismail v. Sp/. Director,
E Enforcement Directorate and Another [(2007) 8 SCC 254], in
a case involving the Foreign Exchange Regulation Act, this
Court held:
"19. Apart therefrom the High Court was bound to take into
consideration the factum of retraction of the confession by
F JJ
the appellant. It is now a well-settled principle of law that a
confession of a co-accused person cannot be treated as
substantive evidence and can be pressed into service only
when the court is inclined to accept other evidence and
feels the necessity of seeking for an assurance in support
G
of the conclusion deducible therefrom ... "
36. In Ravindran Alias John v. Superintendent of Customs )'

((2007) 6 SCC 410], this Court opined:
"19 ... The confessional statement of a co-accused could
H
U.0.1. v. BAL MUKUND & ORS. [S.B. SINHA, J.] 227

not be used as substantive evidence against the co- A
accused."
37. In Noor Aga (supra), this Court held that whether the
confession was made under duress or coercion and/ or
,.,. >/ voluntary in nature should be considered having regard to the
facts and circumstances of each case. It was opined: 8

"102. Section 25 of the Evidence Act was enacted in the
words of Mehmood J in Queen Empress v. Babula! ILR
(1884) 6 All. 509 to put a stop to the extortion of confession,
by taking away from the police officers as the advantage c
of proving such extorted confession during the trial of
accused persons. It was, therefore, enacted to subserve
a high purpose.
-ii

- ,,/
113. Even otherwise Section 1388 of the 1962 Act must
be read as a provision containing certain important
features, namely:
D

(a) There should be in the first instance statement made
and signed by a person before a competent custom official.
(b) It must have been made during the course of enquiry E
and proceedings under the Customs Act.
114. Only when these things are established, a statement
made by an accused would become relevant in a
prosecution under the Act. Only then, it can be used for the F
purpose of proving the truth of the facts contained therein.
It deals with another category of case which provides for
a further clarification. Clause (a) of Sub-section (1) of
Section 1388 deals with one type of persons and Clause
(b) deals with another. The Legislature might have in mind
G
its experience that sometimes witnesses do not support
the prosecution case as forexample panch witnesses and
only in such an event an additional opportunity is afforded
to the prosecution to criticize the said witness and to invite
a finding from the court not to rely on the assurance of the
H
228 SUPREME COURT REPORTS [2009] 5 S.C.R.

A court on the basis of the statement recorded by the
Customs Department and for that purpose it is envisaged
that a person may be such whose statement was recorded
but while he was examined before the court, it arrived at
an opinion that is statement should be admitted in
B evidence in the interest of justice which was evidently to
make that situation and to confirm the witness who is the
author of such statement but does not support the
prosecution although he made a statement in terms of
Section 108 of the Customs Act. We are not concerned
c with such category of witnesses. Confessional statement
of an accused, therefore, cannot be made use of in any
manner under Section 1388 of the Customs Act. Even
otherwise such an evidence is considered to be of weak
nature."
D It was also held that sanctity of the recovery should be " ,.
ensured.
38. We, therefore, in the facts and circumstances of this
case, are clearly of the view that the purported confessions
E made by the respondent Nos. 1 and 2 could not in absence of
other corroboration form the basis of conviction.
39. There is another aspect of the matter which cannot
also be lost sight of. Standing Instruction No. 1/88, which had
been issued under the Act, lays down the procedure for taking
F samples. The High Court has noticed that PW-7 had taken
samples of 25 grams each from all the five bags and then
mixed them and sent to the laboratory. There is nothing to show
that adequate quantity from each bag had been taken. It was
a requirement in law.
G 40. There is another infirmity in the prosecution case.
Section 55 of the Act reads as under:
"55 - Police to take charge of articles seized and
delivered
H
- U.0.1. v. BAL MUKUND & ORS. [S.B. SINHA, J.] 229

An officer-in-charge of a police station shall take charge A
of and keep in safe custody, pending the orders of the
Magistrate, all articles seized under this Act within the local
area of that police station and which may be delivered to

-
him, and shall allow any officer who may accompany such
.. articles to the police station or who may be deputed for B
the purpose, to affix his seal to such articles or to take
samples of and from them and all samples so taken shall
also be sealed with a seal of the officer-in-charge of the
police station."

PW-7 did not testify as to which of the bags seized had c
' been sent for analysis. No statement had been made by him
that the bags produced were the bags in question which were
seized or the contraband was found in them.

41. Furthermore, we are dealing with a judgment of D
I. -I acquittal. The High Court, for good and sufficient r.easons, had
arrived at findings of fact both with regard to voluntariness of
the purported confessions made by the respondents as also
compliance of the mandatory statutory provisions vis-a-vis
directions issued by the Central Government in making search, E
seizure as also taking of samples for the purpose of chemical
examination having been doubted, we do not see any reason
why we should take a contrary view as it is well-known that the
appellate court would not interfere with a judgment of acquittal
only because another view is possible. On the other hand, if
F
two views are possible, it is trite, the appellate court shall not
i
interfere. [See Animireddy Venkata Ramana and Others v.
Public Prosecutor, High Court of Andhra Pradesh (2008) 5
sec 368J
42. For the reasons aforementioned, there is no merit in G
this appeal which is dismissed accordingly.

B.B.B. Appeal dismissed.