Supreme Court clarifies the evidentiary value of co-accused statements under NDPS Act: Surinder Kumar Khanna vs. Directorate of Revenue Intelligence (2018)

Introduction

Date of the Judgment: July 31, 2018
Citation: (2018) INSC 671
Judges: Abhay Manohar Sapre, J., Uday Umesh Lalit, J.

Can a person be convicted solely based on the confessional statement of a co-accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)? The Supreme Court of India addressed this critical question in the case of Surinder Kumar Khanna vs. Intelligence Officer Directorate of Revenue Intelligence. This judgment clarifies the extent to which statements made by one accused can be used against another in drug-related offenses. The two-judge bench, consisting of Justices Abhay Manohar Sapre and Uday Umesh Lalit, delivered the judgment.

Case Background

The Directorate of Revenue Intelligence (DRI) received information about narcotics being transported from Jammu to Chandigarh via Hoshiarpur. Acting on this tip, DRI officers set up a checkpoint on the Hoshiarpur-Garhshankar road. On the date of the incident, they intercepted a white Indica car with registration number PB-02AJ-7288. The car was occupied by Raj Kumar @ Raju, the driver, and Surinder Pal Singh, who was seated beside him.

The officers took the car and its occupants to the Central Excise Range office in Hoshiarpur for a thorough search. After issuing notices under Section 50 of the NDPS Act, the officers conducted personal searches of the suspects and the car in the presence of independent witnesses. While no incriminating material was found on the suspects, four packets of heroin, weighing 4.300 kg, were discovered concealed in the door of the car’s dickey.

The seized heroin was valued at Rs. 19,95,000. Samples were taken from the packets, and the car was seized. During interrogation, Raj Kumar @ Raju and Surinder Pal Singh stated that they had obtained the heroin from Mr. Goldy in Vijaypur, Jammu, and were supposed to deliver it to a person of African origin near PGI Chandigarh.

Initially, a complaint was lodged against Raj Kumar @ Raju and Surinder Pal Singh under Sections 21, 22, 23, 28, 29, and 60 of the NDPS Act. Subsequently, the investigation revealed the involvement of the appellant, Surinder Kumar Khanna, in the drug racket. A supplementary complaint was filed against him, and charges were framed against all three individuals under Sections 21, 29, and 60 of the NDPS Act.

Timeline

Legal Framework

The case primarily revolves around the interpretation and application of the following legal provisions:

• Section 21(c) of the NDPS Act: This section deals with the punishment for contravention in relation to manufactured drugs and preparations, specifically concerning commercial quantities.
• Section 29 of the NDPS Act: This section addresses abetment and criminal conspiracy in the context of offenses under the NDPS Act.
• Section 67 of the NDPS Act: This section empowers officers to call for information and record statements during investigations.
• Section 25 of the Indian Evidence Act, 1872: This section states that a confession made to a police officer cannot be proved against the accused.
• Section 30 of the Indian Evidence Act, 1872: This section allows the court to consider a confession made by one accused against a co-accused if they are being tried jointly for the same offense.

The Supreme Court also considered the interplay between these provisions, particularly how statements recorded under Section 67 of the NDPS Act should be treated in light of Section 25 and Section 30 of the Evidence Act.

Arguments

Appellant’s Submissions:

• The appellant argued that there was no evidence against him other than the statements of the co-accused, Raj Kumar @ Raju and Surinder Pal Singh.
• He emphasized that he was not arrested at the scene of the crime, nor was the contraband material directly associated with him.
• The appellant contended that the confessional statements of the co-accused should not be the sole basis for his conviction.

Respondent’s Submissions:

• The respondent, represented by the Additional Solicitor General, supported the conviction and sentence imposed by the High Court.
• The respondent submitted call data reports indicating that the appellant was in contact with a person named Chaudhary from Dubai around the time of the co-accused’s arrest. However, the respondent admitted that there was no evidence to link the appellant directly to the co-accused at the time of their apprehension.
• The respondent argued that the statements of the co-accused, recorded under Section 67 of the NDPS Act, were admissible as evidence.

Issues Framed by the Supreme Court

The Supreme Court addressed the following key issues:

1. Whether the statement recorded under Section 67 of the NDPS Act can be construed as a confessional statement, even if the officer recording the statement is not considered a police officer.
2. Whether a confessional statement of a co-accused can be the sole basis for conviction of another co-accused in the absence of other substantive evidence.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court analyzed the submissions and authorities and arrived at the following conclusions:

The Supreme Court also considered how the authorities were viewed:

• Kanhaiyalal v. Union of India [CITATION]: The Court acknowledged the view that statements under Section 67 are admissible but clarified that they cannot be the sole basis for conviction.
• Kashmira Singh v. State of Madhya Pradesh [CITATION]: The Court reiterated that a confession of a co-accused is a weak form of evidence and can only be used to support other evidence.
• Hari Charan Kurmi and Jogia Hajam v. State of Bihar [CITATION]: The Court reaffirmed the principle that a confession cannot be treated as substantive evidence against a co-accused.

The Court emphasized that in the absence of any substantive evidence against the appellant, it would be inappropriate to base the conviction solely on the statements of the co-accused. The Court stated:

“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.”

The Court further observed:

“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 Court also noted:

“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.”

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the principle that a co-accused’s confession is a weak form of evidence and cannot be the sole basis for conviction. The Court emphasized the need for substantive evidence to support a conviction, particularly in cases where the only evidence against an accused is the confessional statement of a co-accused.

Key Takeaways

• A confession made by a co-accused under Section 67 of the NDPS Act cannot be the sole basis for convicting another co-accused.
• Such a confession can only be used to lend assurance to other substantive evidence against the accused.
• The Court must first assess the other evidence against the accused before considering the confession of a co-accused.
• Call data records, without any direct link to the crime, are not sufficient to establish guilt.

Directions

The Supreme Court set aside the orders of conviction and sentence against the appellant and acquitted him. The Court directed that the appellant be released forthwith unless his custody was required in connection with any other offense.

Development of Law

The ratio decidendi of this case is that the confessional statement of a co-accused under Section 67 of the NDPS Act cannot be the sole basis for the conviction of another co-accused. This judgment reinforces the principle that a co-accused’s confession is a weak form of evidence and requires corroboration from other substantive evidence. This case does not introduce a new legal principle but reaffirms the established position of law.

Conclusion

In Surinder Kumar Khanna vs. Intelligence Officer Directorate of Revenue Intelligence, the Supreme Court clarified that a conviction under the NDPS Act cannot be based solely on the confessional statement of a co-accused. The Court emphasized the necessity of substantive evidence to support such a conviction, thereby safeguarding individual liberties against potentially weak or unreliable testimony. The appellant was acquitted, highlighting the importance of adhering to established legal principles in criminal trials.