| CITATION | 2023INSC852 |
| DATE OF JUDGMENT | 22 September, 2023 |
| COURT | SUPREME COURT OF INDIA |
| APPELLANT | BALWINDER SINGH (BINDA) SATNAM SINGH |
| RESPONDENT | THE NARCOTICS CONTROL BUREAU |
| BENCH | HON’BLE JUSTICE HIMA KOHLI |
INTRODUCTION
The Supreme Court has acquitted an accused named Balwinder Singh saying that the confessional statement was recorded by NCB (Narcotics Control Bureau) officers under Section 67 of NDPS Act (Narcotic Drugs and Psychotropic Substances Act, 1985) and that there was no other independent incriminating evidence that was brought by the prosecution for convicting him. The Court was deciding a batch of two criminal appeals filed by two men named Balwinder Singh and Satnam Singh who had challenged the judgment passed by the Division Bench of the Punjab and Haryana High Court whereby the death sentence imposed upon Balwinder was set aside and a rigorous imprisonment of 14 years was imposed upon him. The appeals preferred by the accused were dismissed except for the modification in the order of sentence.
The three-Judge Bench comprising Justice B.R. Gavai, Justice Hima Kohli, and Justice Prashant Kumar Mishra held, “Once the confessional statement of the co-accused, Satnam Singh recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to Balwinder Singh and the subsequently recorded statement of Balwinder Singh himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Tofan Singh (supra), there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh under the NDPS Act. On ignoring the said confessional statements recorded before the officers of the NCB in the course of the investigation, the vital link between Balwinder Singh and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained.”
The Bench said that Balwinder deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act.
FACTS OF THE CASE
The NCB received secret information that some persons who were indulging in the sale of contraband, were travelling in a white coloured Indica car from Amritsar to supply contraband at a bus stand at Chandigarh. A Naka was laid by the NCB team at Chandigarh and two independent witnesses were associated in the investigation. At 03:15 am, the NCB team noticed that a car stopped at a little distance from the place of Naka and two persons wearing turbans alighted from the car and ran away. However, the third person, also wearing a turban who had later on disclosed his name as Satnam Singh, remained seated in the car. Members of the NCB team intercepted the vehicle and searched Satnam Singh in the presence of the independent witnesses and on searching the car, they found two packets wrapped in a khaki tape in the cavity of the door panel.
On unzipping the seat cover of the rear back seat of the vehicle, two more similar packets wrapped in khaki tape were recovered. The prosecution claimed that on inquiry, Satnam Singh disclosed that the packets contained heroin that he had brought from Amritsar with the assistance of Balwinder Singh and another person for sale in Chandigarh. The NCB officers seized all the four packets and after taking out two representative samples, sealed them. The Special Court held both the accused guilty and thereafter, they approached the High Court. The High Court convicted them under the NDPS Act and hence the matter was before the Supreme Court.
ISSUES RAISED
The present appeals arise from the common judgment dated 08th July, 2013 passed by the Division Bench of the High Court of Punjab and Haryana at Chandigarh deciding the Murder Reference prepared by the Judge, Special Court for confirmation of death sentence, appeal preferred by Balwinder Singh and the appeal filed by Satnam Singh.
Murder Reference No. 5 of 2012 titled Narcotics Control Bureau, Chandigarh Zonal Unit v. Balwinder Singh (Binda) Reason: 3 Appellant in Criminal Appeal No. 1136 of 2014 Appellant in Criminal Appeal No. 1933 of 2014, Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 By the impugned judgment, the death sentence imposed upon Balwinder Singh was set aside under the Reference, thereby declining the Reference and imposed a sentence on him to undergo rigorous imprisonment for 14 years and to pay a fine of ₹1,50,000/- [Rupees one lakh fifty thousand only] and in default, to undergo rigorous imprisonment for one year for commission of offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appeals preferred by the accused were dismissed except for the modification in the order of sentence. Both the accused are before this Court in these appeals by way of special leave.
CONTENTIONS OF APPEALENT
Mr. Mayank Dahiya, learned counsel for the appellant – Balwinder Singh, argued that his client had been convicted solely on the basis of the purported statement of confession made by the co-accused, Satnam Singh before the NCB officials which is no longer admissible in law, in the light of the decision of this Court in the case of Tofan Singh v. State of Tamil Nadu. It was stated that the High Court was swayed by the fact that at that time, Balwinder Singh was facing three other cases for offences under the NDPS Act but subsequently, he has been acquitted in all the said cases on being extended benefit of doubt. However, in the instant case, he has already undergone the sentence awarded by the High Court during the pendency of the present appeal.
Besides a similar argument advanced by learned counsel for Balwinder Singh that the statement of confession made by Satnam Singh before the NCB officials is not admissible in law and could not be read in evidence against him in view of the recent decision of this Court in Tofan Singh (supra), Mr. Akshay Nagarajan, learned counsel for the said appellant has assailed the impugned judgement primarily on five counts. Firstly, that an offence committed under the NDPS Act being a grave one, all the (2021) SCC 1, Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 procedural safeguards provided under the Statute to the accused require strict compliance and strict scrutiny and in the instant case, as the prosecution failed to establish a prima facie case, the burden did not shift to the accused. To buttress the said submission, learned counsel has cited Ritesh Chakarvarti v. State of M.P.; Noor Aga v. State of Punjab and Another; Bhola Singh v. State of Punjab; State of Delhi v. Ram Avatar alias Rama; and Gorak Nath Prasad v. State of Bihar.
The second plea taken is that the entire story setup by the prosecution is shaky inasmuch as the independent witnesses who were joined in, have a murky background and their testimonies ought to be disbelieved. The testimony of Sonu has been questioned as untrustworthy and it is stated that he could not be treated as an independent witness in terms of Section 100(4) of the Cr.P.C. It was contended that the High Court has erred in failing to re-evaluate the credibility of the said witness and satisfy itself as to whether he was in fact an independent witness. Thirdly, it was argued that the other independent witness, Mukesh Kumar was arrayed in the list of witnesses but not examined by the prosecution for the reason that he was a stock witness, as would emerge from the deposition of DW-331 and DW-432. Next, it was argued that the case property, mainly the contraband that was allegedly recovered, was not handled properly which is apparent from the fact that in the panchnama the contraband was described as a substance that was white in colour but in his testimony, the Chemical (2006) SCC 321 (2008) SCC 417 (2011) SCC 653 (2011) SCC 207 (2018) SCC 30, Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 Examiner, described the contraband to be of light brown colour with lumps. This discrepancy in the contraband pointed out by the defence goes to the root of the matter.
Lastly, it was argued on behalf of Satnam Singh that the High Court ought not to have discarded outright the defence version that it was Sonu [PW-1] who was found to be in possession of the contraband and on his bribing the NCB officers, he was let off whereas Satnam Singh, who was innocent, was framed. Learned counsel submitted that the deposition of DW-230 proved that the landline number on which a phone call was made by the NCB officers from the mobile phone of Satnam Singh at 09.45 pm on 11th December, 2005, was the official number belonging to the Zonal Director, NCB, Chandigarh and the said evidence once brought on record, was sufficient for the High Court to have discounted the version of the NCB that they had met Satnam Singh for the first time at the naka on 12th December, 2005, at 03.00 am. Learned counsel concluded by submitting that though Satnam Singh has already undergone the sentence imposed on him, he is pressing the appeal for an acquittal on merits because the appellant was a Government servant who was dismissed from service on having been convicted which order, if reversed, would entitle him to relief in relation to his service benefits.
As for the contention of learned counsel for the appellant – Satnam Singh that the testimony of Sonu cannot be treated as that of an independent witness in view of the provisions under Section 100 (4) of the Cr.P.C., we are of the view that the said plea does not hold any water. Section 100 (4) of the Cr.P.C. that falls under Chapter VII titled “Process to Compel the Production of Things”, states as follows:
- “100. Persons in charge of closed place to allow search – (4). Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”
CONTENTIONS OF REPONDENT
On the other hand, learned counsel for the respondent-NCB has supported the impugned judgement and stated that there was ample evidence brought on record by the NCB for indicting Balwinder Singh and Satnam Singh. He asserted that none of the, Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 witnesses produced by the NCB were planted, as alleged; that NCB had successfully established a prima facie case against the appellants whereafter the burden had shifted on them to prove their innocence and that they had miserably failed to discharge the said burden; that the prosecution had amply proved the foundational facts to attract the rigours of the NDPS Act and the actus reus, namely possession of contraband by the appellants was convincingly established for holding them guilty of the offence for which they were charged. It was thus stated that the impugned judgement does not deserve interference.
JUDGEMENT
any confessional statement made by an accused to an officer invested with the powers under Section 53 of the NDPS Act, is barred for the reason that such officers are “police officers” within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.
The essence of the discussion in the captioned case was that for attracting the provisions of Section 54 of the NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused for the burden to shift to the accused to prove his innocence. This aspect of possession of the contraband has to be proved by the prosecution beyond reasonable doubt. (supra) That possession of the contraband is a sine qua non to secure a conviction under Section 21 of the NDPS Act and that such a contraband article should be recovered in accordance with the provisions of Section 50 of the NDPS Act, being a statutory safeguard favouring the accused; otherwise the recovery itself shall stand vitiated in law.
ANALYSIS
After discussing the entire evidence, vide judgment dated 10th March, 2012, the learned Judge, Special Court, Chandigarh held both the accused guilty and convicted them under Section 21 read with Section 8 of the NDPS Act. Subsequently, on 15th March, 2012, after hearing arguments on the quantum of sentence, noting that Balwinder Singh3 had been previously convicted under Section 21(c) of the NDPS Act for the offence involving commercial quantity of narcotic drugs and applying the provisions of DW 1 DW 2 DW 3 DW 4 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 Section 31A of the NDPS Act, he was sentenced to death under Section 21(c) read with Section 31A(1a) of the NDPS Act.
PROCEEDINGS BEFORE THE HIGH COURT
After a detailed examination of the legal position in the light of the provisions of the NDPS Act, vis-à-vis revenue Statutes like the Customs Act, 1962 and the Central Excise Act, 1944 as also the Cr.P.C and Section 25 of the Evidence Act, the majority decision authored by Justice Nariman, arrived at the following conclusion:
(2013) 16 SCC 31 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 “155. Thus, to arrive at the conclusion that a confessional statement made before an officer designated under Section 42 or Section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.
The judgment in Kanhaiyalal [Kanhaiyalal v. Union of India, (2008) 4 SCC 668:
(2008) 2 SCC (Cri) 474] then goes on to follow Raj Kumar Karwal [Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409: 1990 SCC (Cri) 330] in paras 44 and
For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us.
- EFFECT OF TOFAN SINGH’S VERDICT ON BALWINDER SINGH’S CASE
Once the confessional statement13 of the co-accused, Satnam Singh recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to Balwinder Singh and the subsequently recorded statement of Balwinder Singh3 himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 Tofan Singh (supra), there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh under the NDPS Act. On ignoring the said confessional statements recorded before the officers of the NCB in the course of the investigation, the vital link between Balwinder Singh and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained.
- any narcotic drug or psychotropic substance or controlled substance;
- any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
- any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
- any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily. Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 heightened scrutiny test and satisfy itself of “proof beyond all reasonable doubt”. Emphasis was laid on the well-settled principle of criminal jurisprudence that more serious the offence, the stricter would be the degree of proof and a higher degree of assurance would be necessary to convict an accused. [Also refer: State of Punjab v. Baldev Singh, Ritesh Chakarvarti v. State of M.P. and Bhola Singh].
It can be discerned from a bare reading of the aforesaid provision that it is a general provision relating to search and applies to a closed place, as for example, a residence, office, shop, a built-up premises etc, where a search is required to be Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 conducted by the investigation. It is in this context that sub-section (4) of Section 100 Cr.P.C. provides that to maintain the purity of the process, before undertaking a search, a couple of independent and respectable inhabitants of the locality where the place to be searched is located, be joined as witnesses to the search.
CONCLUSION
Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014, As a result of the above discussion, we are of the opinion that Balwinder Singh deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act. Ordered accordingly.
- “PROOF BEYOND REASONABLE DOUBT VIS-À-VIS “PREPONDERANCE OF PROBABILITY”: LEGAL POSITION
- PLEA OF UNRELIABILITY OF THE TESTIMONY OF THE INDEPENDENT WITNESS, SONU
In view of the aforesaid discussion, we are of the opinion that the appellant – Satnam Singh has failed to make out a case for acquittal. Therefore, the order of Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 conviction and the sentence imposed on Satnam Singh is maintained. Criminal Appeal No. 1933 of 2014 is accordingly dismissed and the order of conviction and the sentence imposed on Satnam Singh by trial Court and upheld by the High Court is affirmed. However, Criminal Appeal No.1136 of 2014 is allowed and the appellant, Balwinder Singh is acquitted.
REFERENCES
This Article is written by O. MANI SHANKAR student of VELS UNIVERSITY – CHENNAI; Intern at Legal Vidhiya.
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