7 Sep 2022 5:55 AM GMT
Punjab and Haryana High Court recently held that Section 67 of the NDPS Act, does not expressly oust the clout of Section 27 of the Indian Evidence Act, and, as such saves its operation to offences constituted under the NDPS Act. Moreover, Section 67 of the NDPS Act also when does not through a nonobstante clause, occurring therein expressly oust the workability or the clout of...
Punjab and Haryana High Court recently held that Section 67 of the NDPS Act, does not expressly oust the clout of Section 27 of the Indian Evidence Act, and, as such saves its operation to offences constituted under the NDPS Act.
Moreover, Section 67 of the NDPS Act also when does not through a nonobstante clause, occurring therein expressly oust the workability or the clout of Section 27, of the Indian Evidence Act (supra), which as aforestated is an exception to Section 25, of the Indian Evidence Act.
The bench comprising Justice Sureshwar Thakur further noted that Section 67 of the NDPS Act begets no contradiction with either Section 25 or Section 27 of the Indian Evidence Act.
The court was dealing with a petition wherein the bail petitioner who was in judicial custody due to FIR registered under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 was seeking his release from judicial custody.
Facts relevant to the case are, accused Anuj Kumar made a disclosure statement, naming applicant as the supplier of the psychotropic substances, that were recovered from his alleged conscious and exclusive possession. Consequently, the bail applicant was arrested.
The court relied on Apex Court's pronouncement, that not only the weight of the prohibited salt, carried in the seized psychotropic substance rather the entire weight of the seizure, is to be borne in mind, for considering whether the seizure falls within the category of small quantity, intermediate quantity or commercial quantity and the seizure in the instant case falls withing the category of commercial quantity.
Hence, the rigors of Section 37 of the NDPS Act are attracted, and, the bail applicant is prima-facie not entitled to bail.
The court noted that all confessional statements made to officers investigating offences would be hit by Section 25 of the Indian Evidence Act. However, Section 25 of the Indian Evidence Act, has an exception thereto in Section 27.
….any confessional statements, as made to them would be barred, under the provisions of Section 25 of the Indian Evidence Act, and, also hence they cannot be taken into account for convicting any accused, of an offence, under the NDPS Act. A circumspect analysis of the provisions carried in Section 27 of the Act (supra), makes a clear display that, when in pursuance to a confession or information received from an accused, especially during the course of his custodial interrogation, by a police officer, and, when thereafter the fact confessed or the information revealed by such accused person, to the police officer concerned, becomes discovered, thereupon the bar created against the inadmissibility of a bald confessional statement, as made to a police officer, by an accused, becomes lifted, or became relieved, and/or, in other words, the fact discovered in pursuance to a confessional statement, as made by an accused, rather during the course of his custodial interrogation, by the investigating officer, becomes both, admissible as well as relevant.
Court further noted that information made by the accused to the investigating officer, has to, subject to certain exceptions, lead to the discovery of the fact, as disclosed by the accused during the accused's' custodial interrogation.
Regarding Section 67 of the NDPS Act, the court noted that it empowers the authorized officer concerned, during the course of inquiry, to call for information from any person with respect to such contravention.
Coming to the facts of the instant case, the court noted that disclosure statement made against the bail applicant was made during the custodial interrogation of Anuj and it did lead to the apposite discovery of inculpatory call detail records, bank records and stock registers.
It held that if the inculpation becomes linked to the person from whom the arrested person assumed possession of the relevant seizure then the person from whom, possession is acquired by the arrested person also becomes vicariously liable.
Nonetheless, any incriminatory fact even if is in existence, in contemporaneity, to the making of a confessional statement, by the arrested person, and, it makes an inculpation against any other accused, wherefrom whom, the incriminatory fact or the recovered incriminatory psychotropic substance or narcotic drug, was earlier thereto or prior to the recovery happening at the site of crime, rather taken into possession, by the maker of the disclosure statement or by the arrested person, and, if the inculpation (supra) becomes linked to the person wherefrom whom the arrested person has assumed possession of the relevant seizure, as made from the arrested persons' alleged conscious and exclusive possession. Therefore, the person from whom, possession (supra) is acquired by the arrested person also becomes vicariously liable alongwith the arrested person.
Consequently, in view of the weight of the seizure, the court held that Section 37 of the NDPS Act is attracted, relief of bail is rejected.
Case Title: AMIT KHURANA Versus STATE OF HARYANA
Citation:2022 LiveLaw (PH) 248
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