Hima Kohli, J
1. 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 [Murder Reference No. 5 of 2012 titled Narcotics Control Bureau, Chandigarh Zonal Unit v.
Balwinder Singh @ Binda] prepared by the Judge, Special Court for confirmation of death sentence, appeal [CRA No. D-365-DB of 2012] preferred
by Balwinder Singh [Appellant in Criminal Appeal No. 1136 of 2014] and the appeal [CRA No. D-371-DB of 2012] filed by Satnam Singh [Appellant
in Criminal Appeal No. 1933 of 2014].
1.1 By the impugned judgment, the death sentence imposed upon Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 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 [For short ‘NDPS Act’]. 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.
I. FACTUAL MATRIX:
(a) THE INCIDENT IN QUESTION
2. The incident in question relates back to 11th December, 2005, when as per the version of the prosecution, the Narcotics Control Bureau [For short
‘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. On 12th December, 2005, at 01:00 am, a naka was laid by the NCB team at
Chandigarh and two independent witnesses [Mukesh Kumar and Sonu PW-1] were associated in the investigation. At 03:15 am, the NCB team
noticed that a car [White coloured Indica Car bearing registration number HR-01-J-9639 (Marked as P-1)] coming from Sector 25 and heading
towards Sector 24, Chandigarh, 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 Appellant in Criminal Appeal No. 1933
of 2014, remained seated in the car.
2.1. Members of the NCB team intercepted the vehicle and searched Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 in the presence of
the independent witnesses. 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 claims that on
inquiry, Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 disclosed that the packets contained heroin that he had brought from Amritsar
with the assistance of Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 and a person named Harpreet Singh alias Preet alias Sarpanch
for sale in Chandigarh. He further disclosed that Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 and Sarpanch ran away when the
car had stopped a few yards before the naka. The NCB officers seized all the four packets and after taking out two representative samples, sealed
them. The samples of the packets were signed by Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014, the two independent witnesses,
Intelligence Officer - Balwinder Kumar PW-2 and O.P. Sharma, Superintendent, NCB PW-5 (wrongly mentioned as PW-10 in the trial Court
judgement).
(b) THE INVESTIGATION
2.2. A panchnama Exhibit P-1/E in respect of the recovery made was prepared at the spot, read over to Satnam Singh Appellant in Criminal Appeal
No. 1933 of 2014 who signed it. So did the independent witnesses. Thereafter, Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 was
arrested and his statement Exhibit PW-1/B was recorded after issuing him a notice Exhibit P-5 under Section 67 of the NDPS Act. He was also
searched personally. The statements of the independent witnesses [Sonu Exhibit PW-1/D and Mukesh Exhibit P-9] were recorded. Satnam Singh
Appellant in Criminal Appeal No. 1933 of 2014 was produced before the Illaqa Magistrate with the case property Exhibit P-1 and the documents. The
case property was handed over to the Superintendent Incharge of the godown and the parcels of the samples Exhibit P-12 were sent to the Chemical
Examiner Chemical Examiner Shri. S.K. Mittal, PW-4 who forwarded the report Exhibit P-11 later on.
2.3. Till this stage, the co-accused named by Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014, i.e., Balwinder Singh Appellant in Criminal
Appeal No. 1136 of 2014 was nowhere in the picture. The prosecution claims that sometime later, the NCB officers came across a newspaper report
stating that Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 had been arrested by Amritsar Police in an NDPS case and was lodged
in the Central Jail, Amritsar. Based on the said information, Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 was arrested and a notice
Exhibit P - 6 was served on him under Section 67 of the NDPS Act. Thereafter, his voluntary statement Exhibit â€" P-17 was recorded and duly
signed by him and he was arrested.
2.4 On conclusion of the investigation, the NCB submitted a complaint Exhibit P-13 before the Judge, Special Court, Chandigarh stating that Satnam
Singh Appellant in Criminal Appeal No. 1933 of 2014 and Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 had committed offences
punishable under Sections 8, 21, 27A and 60 of the NDPS Act. Charges were framed against the two accused under Section 21 r/w Sections 8, 27A
and 60 of the NDPS Act. On 02nd July, 2007, both the accused pleaded not guilty and claimed trial.
(c) PROCEEDINGS BEFORE THE TRIAL COURT
2.5. On its part, the NCB examined five witnesses namely Sonu [PW-1] who was an independent witness and joined the investigation when the naka
was laid on 12th December, 2005; Constable Balwinder Singh [PW-2] whose deposition related to deposit of the samples Exhibit P-12 of the
contraband with the Central Revenue Control Laboratory, Delhi For short, the CRCL, New Delhi’; P.K. Sharma PW 3, the then Intelligence
Officer, NCB who had received the secret information based on which the naka was laid and Satnam Singh Appellant in Criminal Appeal No. 1933 of
2014 was arrested; S.K. Mittal [Chemical Examiner Shri. S.K. Mittal, PW-4], the Chemical Examiner who deposed about receiving the sample in the
Narcotic Section of the CRCL, New Delhi from the PW- 210 and his report [Exhibit P-11] dated 24th February, 2006 to the effect that on testing, the
sample was found positive for heroin and contained 73.5% of dialectical Morphine by weight and O.P. Sharma [PW-5 (wrongly mentioned as PW-10
in the trial Court judgement)], Superintendent, NCB who narrated the sequence of events leading to the laying of the naka, search of the Indica car
being driven by the accused Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 wherefrom the contraband was recovered, preparation of
Recovery-cum-Seizure Memo Exhibit PW-1/C and forwarding of the seized contraband to Delhi for a chemical analysis Exhibit PW-1/A, ending with
the receipt of the report [Exhibit P-11] of the Chemical Examiner [Chemical Examiner Shri. S.K. Mittal, PW-4].
2.6. After the prosecution closed its evidence, both the accused were examined under Section 313 of the Criminal Procedure Code [For short
‘Cr.P.C’]. They denied the charges levelled against them, pleaded not guilty and alleged false implication in the case. In their defence, the
accused examined four witnesses, namely, Soravdeep Singh DW 1; Naresh Kumar DW 2; Parkash Ram DW 3 and Ravi Kant Pawar DW 4. DW-
129 and DW-230 were summoned by Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 to prove that a call for 27 seconds was made by
him from his mobile number at 9.45 p.m. on 11th December, 2005 to a landline number installed in the office of the Zonal Director in Chandigarh,
when he was actually in police custody.
2.7. It was argued on behalf of the applicants that PW-1 â€" Sonu [PW-1] was the real culprit from whom recovery of heroin was made and he had
managed to bribe the officers of the NCB team due to which they planted the contraband in the car driven by Satnam Singh Appellant in Criminal
Appeal No. 1933 of 2014. It was also contended on behalf of Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 that one of the two
independent witnesses, namely, Mukesh Kumar, was a stock witness of NCB and was on its pay rolls as a daily wager. The testimonies of DW-331
and DW-432 was referred to, wherein it was deposed that Mukesh Kumar was joined in as a witness in another complaint registered by the NCB.
2.8. 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 Singh Appellant in Criminal Appeal No. 1136 of 2014 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 Section 31A of the NDPS Act, he
was sentenced to death under Section 21(c) read with Section 31A(1a) of the NDPS Act.
2.9. Coming to the co-accused Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014, the learned Judge, Special Court, Chandigarh took note
of the fact that he was a government servant working as a Warden in Punjab Jail and was posted at Sangrur at the time of committing the offence,
which added to the gravity of the offence. Therefore, he was sentenced under Section 21(c) of the NDPS Act to undergo rigorous imprisonment for a
period of twelve years and to pay a fine of ₹1,50,000/- (Rupees One lakh and fifty thousand) and in default thereof to further undergo rigorous
imprisonment for a period of three years.
(d) PROCEEDINGS BEFORE THE HIGH COURT
3. Aggrieved by the aforesaid judgment, both the appellants approached the High Court. A Murder Reference under Section 366 Cr.P.C. was also
forwarded to the High Court in view of the death sentence awarded by the Special Court, Chandigarh to the appellant â€" Balwinder Singh Appellant
in Criminal Appeal No. 1136 of 2014. The entire evidence was analysed afresh by the High Court and relying on the decisions of this Court in
Kanhaiyalal vs. Union of India 2008 (4) SCC 668, Ram Singh vs. Central Bureau of Narcotics (2011) 11 SCC 347 and Raj Kumar Karwal vs. Union
of India (1990) 2 SCC 409 wherein, it was held that an order of conviction can be passed solely on the basis of the confession made by the accused
under Section 67 of the NDPS Act and that such a confession before the officer of the NCB was admissible in evidence since the NCB officer is not
considered as a “police officer†within the meaning of Section 25 of the Indian Evidence Act, 1872, both the appellants were convicted under the
NDPS Act. For arriving at the said conclusion, the High Court took into consideration the statements of Balwinder Singh Appellant in Criminal Appeal
No. 1136 of 2014 and Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 recorded under Section 67 of the Act and held them to be
admissible in evidence for being used as confession against them. The deposition of the prosecution witnesses, namely, PW-18, PW-210 and PW-511,
who had searched the car of Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 that had resulted in the recovery of 4 kgs. of heroin, was
also relied on by the High Court and it was observed that Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 was apprehended by the NCB
Officers in the vehicle in question and there was sufficient evidence to hold that he was guilty of possession of 4 kgs. of heroin.
3.1. Similarly, in the case of Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014, the High Court held that his confession19 recorded
under Section 67 of the NDPS Act was admissible in view of the law laid down by this Court in Kanhaiyalal 2008 (4) SCC 668 (supra). The Court
noted that neither Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 nor Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014
had moved any formal application for retracting the confessions made and there was no reason to discard their confessional statements or to reject the
testimonies of the prosecution witnesses [PW-18, PW-210 and PW-511]. Even though Balwinder Singh Appellant in Criminal Appeal No. 1136 of
2014 was not identified by PW-325 and PW-511, his statement [ Exhibit â€" P-17] was duly recorded under Section 67 of the NDPS Act and the co-
accused, Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 had also stated in his confessional statement that Balwinder Singh Appellant in
Criminal Appeal No. 1136 of 2014 was involved in the crime. Both the confessional statements when read together, were held to be sufficient to hold
that Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 was guilty of the offence committed. Added to this was the fact that Balwinder
Singh Appellant in Criminal Appeal No. 1136 of 2014 had already been convicted and sentenced in a case under the NDPS Act and his appeal against
the said conviction was pending at that time in the High Court. Therefore, he had a propensity towards committing such crimes. The High Court
opined that merely because Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 had escaped from the car just before the point where the
naka had been laid and could not be apprehended, would not be a ground to acquit him or exonerate him of the charge of conscious possession of
heroin.
3.2. The High Court went on to reject the defence version sought to be projected by Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 that
Sonu [PW-1] [PW-1] was the real culprit and it was from him that the contraband was recovered but he got away by bribing the NCB team who
cleverly planted the contraband in the car driven by Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014. The plea taken that the other
independent witness, Mukesh Kumar though arrayed as a prosecution witness and not produced, was a stock witness of the NCB, was also found to
be meritless. The High Court observed that Mukesh Kumar was not examined during the trial since he had been won over by the appellants. As a
result of the aforesaid discussion, both, Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 and Satnam Singh Appellant in Criminal
Appeal No. 1933 of 2014 were found to be in conscious possession of commercial quantity of heroin on the relevant date and the findings returned by
the trial Court holding them guilty of the commission of offences punishable under Section 21(c) read with Section 8 of the NDPS Act, were upheld.
The order of sentence imposed on Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 of rigorous imprisonment for a period of 12 years
was affirmed by the High Court. However, the death penalty awarded to the appellant â€" Balwinder Singh Appellant in Criminal Appeal No. 1136 of
2014 for being a repeat offender under Section 31A of the NDPS Act, was held to be too harsh a punishment. Resultantly, the death sentence
awarded to Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 was set aside and the High Court sentenced him to undergo rigorous
imprisonment for a period of 14 years along with fine of ₹1,50,000/- [Rupees one lakh fifty thousand only] and in default of payment of fine, suffer
imprisonment for one year. Dissatisfied by the aforesaid decision, the appellants have preferred the present appeals.
II ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE PARTIES
(a) SUBMISSIONS MADE BY COUNSEL FOR BALWINDER SINGH APPELLANT IN CRIMINAL APPEAL NO. 1136 OF 2014
AND SATNAM SINGH APPELLANT IN CRIMINAL APPEAL NO. 1933 OF 2014
4. Mr. Mayank Dahiya, learned counsel for the appellant â€" Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014, argued that his client
had been convicted solely on the basis of the purported statement of confession made by the co-accused, Satnam Singh Appellant in Criminal Appeal
No. 1933 of 2014 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 (2021) 4 SCC 1. It was stated that the High Court was swayed by the fact that at that time, Balwinder Singh Appellant in
Criminal Appeal No. 1136 of 2014 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.
4.1. Besides a similar argument advanced by learned counsel for Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 that the statement
of confession made by Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 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 (2021) 4 SCC 1 (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 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. (2006) 12 SCC 321; Noor Aga v. State of Punjab and Another (2008) 16 SCC 417; Bhola Singh
v. State of Punjab (2011) 11 SCC 653; State of Delhi v. Ram Avatar alias Rama (2011) 12 SCC 207; and Gorak Nath Prasad v. State of Bihar (2018)
2 SCC 305.
4.2 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 [PW-1] 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 [Exhibit P-1], mainly
the contraband that was allegedly recovered, was not handled properly which is apparent from the fact that in the panchnama [Exhibit P-1/E] the
contraband was described as a substance that was white in colour but in his testimony, the Chemical Examiner [Chemical Examiner Shri. S.K. Mittal,
PW-4], 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.
4.3 Lastly, it was argued on behalf of Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 that the High Court ought not to have discarded
outright the defence version that it was Sonu [PW-1] [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 Appellant in Criminal Appeal No. 1933 of 2014, 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 Appellant in Criminal Appeal No. 1933 of 2014 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 Appellant in Criminal Appeal No. 1933 of 2014 for the first time at the naka on 12th December, 2005, at 03.00
am. Learned counsel concluded by submitting that though Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 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.
(b) SUBMISSIONS MADE BY LEARNED COUNSEL FOR THE RESPONDENT, NCB
5. 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 Appellant in Criminal Appeal No. 1136 of 2014 and Satnam Singh Appellant in Criminal
Appeal No. 1933 of 2014. He asserted that none of the 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.
III ANALYSIS AND DISCUSSION
(a) SIGNIFICANCE OF TOFAN SINGH’S DECISION
6. We have perused the impugned judgement and the records and given our thoughtful consideration to the arguments advanced by learned counsel
for the parties.
7. When the present matter was considered by the High Court in the year 2013, it had accepted the arguments advanced by learned counsel for the
respondent-NCB that officers of the Department of Revenue Intelligence who are vested with the powers of an officer-in-charge of the police station
under Section 53 of the Act, are not “police officers†within the meaning of Section 25 of the Evidence Act and therefore held that a confessional
statement of a person accused of an offence under the NDPS Act recorded by such an officer in the course of investigation, is admissible against
him. The said argument had found favour with the High Court in the light of the decisions of this Court in Kanhaiyalal 2008 (4) SCC 668 (supra) and
Raj Kumar Karwal (1990) 2 SCC 409 (supra) where it was held that a confession made by the accused before an officer of the NCB, is admissible in
evidence because the said officer cannot be treated as a “police officer†within the meaning of Section 25 of the Evidence Act. It was further
held that a conviction can be maintained on the sole confession made by an accused under Section 67 of the NDPS Act. A similar view taken by this
Court in Ram Singh Appellant in Criminal Appeal No. 1136 of 20144 (supra), was cited by the High Court to fortify its decision that the confessions
made by the appellants herein before the officers of the NCB were admissible in evidence, being of voluntary nature.
8. However, much water has flown under the bridge since the year 2013. In the year 2020, a three-judges Bench of this Court answered a Reference
Order of a Division Bench in Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31 and re-examined the ratio of Kanhaiyalal 2008 (4) SCC 668
(supra) and Raj Kumar Karwal (1990) 2 SCC 409 (supra) to decide as to whether the officer investigating a matter under the NDPS Act would
qualify as a ‘police officer’ or not. The other related issue which was examined by the larger Bench in Tofan Singh Appellant in Criminal
Appeal No. 1136 of 20146 (supra) was whether the statement recorded by the investigating officer under Section 67 of the NDPS Act can be treated
as a confessional statement or not even if the officer is not treated as a “police officerâ€.
9. After a detailed examination of the legal position in the light of the provisions of the NDPS Act, vis-Ã -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:
“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.
156. 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 45. 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.
157. On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga [Noor Aga v. State of Punjab, (2008) 16 SCC 417 :
(2010) 3 SCC (Cri) 748] and Nirmal Singh Pehlwan v. Inspector, Customs [Nirmal Singh Pehlwan v. Inspector, Customs, (2011) 12 SCC 298 : (2012)
1 SCC (Cri) 555] are correct in law.
158. We answer the reference by stating:
158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are “police officers†within the meaning of Section 25
of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the
Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
158.2. That a statement 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.â€
[emphasis laid]
10. In view of the aforesaid decision that declares that 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.
(b) EFFECT OF TOFAN SINGH’S VERDICT ON BALWINDER SINGH’S CASE
11. Now that it has been declared in Tofan Singh’s case (2021) 4 SCC 1 (supra) that the judgements in the case of Kanhaiyalal 2008 (4) SCC 668
(supra) and Raj Kumar Karwal (1990) 2 SCC 409 (supra) did not state the correct legal position and they stand overruled, the entire case set up by
the prosecution against Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014, collapses like a House of cards. It is not in dispute that
Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 was not apprehended by the NCB officials from the spot where the naka was laid
and that Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 alone was apprehended in the Indica car. The version of the prosecution is that
after Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 was arrested, his statement [Exhibit PW-1/B] was recorded under Section 67 of
the NDPS Act wherein he ascribed a specific role to the co-accused - Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 and the
Sarpanch. The NCB officers claimed that they were on the lookout for both of them since they had managed to run away from the spot. While
Sarpanch could not be apprehended, the NCB officers learnt from reports in the newspaper that Balwinder had been arrested by the Amritsar Police
in an NDPS case and was lodged in the Central Jail, Amritsar. Permission was taken from the concerned Court to take Balwinder Singh Appellant in
Criminal Appeal No. 1136 of 2014 into custody in the instant case and he was arrested. A notice [Exhibit P - 6] was served on him under Section 67
of the NDPS Act and his statement [ Exhibit â€" P-17] was recorded. Treating his statement [ Exhibit â€" P-17] as a confessional statement,
Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 was arrested.
12. Once the confessional statement [Exhibit PW-1/B] of the co-accused, Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 recorded by
the NCB officers under Section 67 of the NDPS Act, who had attributed a role to Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014
and the subsequently recorded statement [ Exhibit â€" P-17] of Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 himself under Section
67 of the NDPS Act are rejected in the light of the law laid down in Tofan Singh Appellant in Criminal Appeal No. 1136 of 20146 (supra), there is no
other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh Appellant in Criminal
Appeal No. 1136 of 2014 under the NDPS Act. On ignoring the said confessional statements [Exhibit PW-1/B] & [Exhibit â€" P-17] recorded before
the officers of the NCB in the course of the investigation, the vital link between Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 and
the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained.
13. As a result of the above discussion, we are of the opinion that Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 deserves to be
acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act. Ordered accordingly.
(c) HOW IS SATNAM SINGH’S CASE PLACED ON A DIFFERENT FOOTING
14. We next come to the case of the appellant, Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014. Again, as in the case of Balwinder
Singh Appellant in Criminal Appeal No. 1136 of 2014, the statement [Exhibit PW-1/B] made by Satnam Singh Appellant in Criminal Appeal No. 1933
of 2014 and recorded under Section 67 of the NDPS Act will have to be discarded outright as it cannot be used as a confessional statement having
been recorded by the NCB officials who, in terms of the verdict in Tofan Singh’s case (2021) 4 SCC 1 (supra) are to be treated as “police
officers†under the provisions of Section 25 of the Evidence Act. But unlike the case of Balwinder Singh Appellant in Criminal Appeal No. 1136 of
2014, the conviction of Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 does not hinge solely on his confessional statement [Exhibit PW-
1/B] made to the NCB officials. His case is on a different footing because it also rests on other relevant factors including the testimonies of three
prime prosecution witnesses namely, Sonu [PW-1] [PW-1], P.K. Sharma [PW-3] and O.P. Sharma [PW-5 (wrongly mentioned as PW-10 in the trial
Court judgement)] [PW-5]. We propose to discuss below that their testimonies when examined carefully, show that they had remained consistent and
unfailing. There appear no material contradictions or deviations in their depositions for this Court to extend any benefit to the appellant â€" Satnam
Singh Appellant in Criminal Appeal No. 1933 of 2014.
(d) “PROOF BEYOND REASONABLE DOUBT VIS-À-VIS “PREPONDERANCE OF PROBABILITY†: LEGAL POSITION
15. We may first test on the anvil of settled law, the plea taken by learned counsel for the appellant â€" Satnam Singh Appellant in Criminal Appeal
No. 1933 of 2014 that the prosecution had failed to establish a prima facie case against the accused and therefore, the burden of proving his innocence
did not shift back to him. In the case of Noor Aga38 (supra), a two-Judges Bench of this Court was required to decide several questions, including the
constitutional validity of the NDPS Act and the standard and extent of burden of proof on the prosecution vis-Ã -vis the accused. After an extensive
discussion, this Court upheld the constitutional validity of the provisions of Sections 35 and 54 of the NDPS Act, but went on to hold that since the
provisions of the NDPS Act and the punishments prescribed therein are stringent, the extent of burden to prove the foundational facts cast on the
prosecution, would have to be more onerous. The view taken was that courts would have to undertake a heightened scrutiny test and satisfy itself of
“proof beyond all reasonable doubtâ€. 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 (1999) 6 SCC 172, Ritesh Chakarvarti v. State of M.P. (2006) 12 SCC 321 and Bhola Singh Appellant in Criminal Appeal No. 1136 of
20149 (supra)].
35. Presumption of culpable mental stateâ€"(1) In any prosecution for an offence under this Act which requires a culpable mental state of the
accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such
mental state with respect to the act charged as an offence in that prosecution.
Explanationâ€"In this section “culpable mental state†includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section , a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when
its existence is established by a preponderance of probability.
54. Presumption from possession of illicit articlesâ€"In trials under this Act, it may be presumed, unless and until the contrary is proved, that the
accused has committed an offence under this Act in respect ofâ€
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) 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
(d) 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.
16. Thus, it can be seen that the initial burden is cast on the prosecution to establish the essential factors on which its case is premised. After the
prosecution discharges the said burden, the onus shifts to the accused to prove his innocence. However, the standard of proof required for the
accused to prove his innocence, is not pegged as high as expected of the prosecution. In the words of Justice Sinha, who speaking for the Bench in
Noor Aga38 (supra), had observed that:
“58. ……. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt†but it
is “preponderance of probability†on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35
of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.â€
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.
(e) PLEA OF FAILURE TO ESTABLISH FOUNDATIONAL FACTS
17. The submission made by learned counsel for the appellant â€" Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 that the prosecution
failed to establish the underlying facts of possession of the contraband by Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 and therefore,
the burden of proof could not have shifted to the accused, is found to be devoid of merits having regard to the evidence placed on record by the
prosecution. The prosecution was successful in establishing the fact that it was the appellant â€" Satnam Singh Appellant in Criminal Appeal No. 1933
of 2014 who was driving the car [White coloured Indica Car bearing registration number HR-01-J-9639 (Marked as P-1)], when he was accosted at
the spot where the naka was laid by the NCB Officers on the relevant date. A photocopy of the registration certificate of the car [White coloured
Indica Car bearing registration number HR-01-J-9639 (Marked as P-1)] was recovered on a search of the appellant â€" Satnam Singh Appellant in
Criminal Appeal No. 1933 of 2014. He was the owner of the car [White coloured Indica Car bearing registration number HR-01-J-9639 (Marked as
P-1)]. The car [White coloured Indica Car bearing registration number HR-01-J-9639 (Marked as P-1)] was searched by the NCB Officers in the
presence of two independent witnesses. The contraband was recovered from the car [White coloured Indica Car bearing registration number HR-01-
J-9639 (Marked as P-1)] being driven by the appellant â€" Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 in the presence of the
independent witnesses and P.K. Sharma, a Gazetted Office [PW 3], who was part of the NCB team. Even though one of the two independent
witnesses [Mukesh Kumar] had turned hostile and was dropped by the prosecution, the testimony of the other independent witness [Sonu [PW-1]]
was consistent and nothing material could be elicited by the accused during his cross-examination.
18. Through the deposition of the Chemical Examiner [S.K. Mitta Exhibit â€" P-17 ], the prosecution successfully proved the report [Exhibit P-11]
submitted by him stating inter alia that on testing the samples Exhibit P-12, the substances drawn from the bags recovered from the car [White
coloured Indica Car bearing registration number HR-01-J-9639 (Marked as P-1)] of the appellant â€" Satnam Singh Appellant in Criminal Appeal No.
1933 of 2014, were heroin. The samples Exhibit P-12 drawn and sealed were found untampered and the testimony of Constable Balwinder Kumar
[PW-2] corroborated the fact that he had carried the samples Exhibit P-12 with him and deposited them with the CRCL, New Delhi on 14th
December, 2005 with all the seals intact.
19. Given the aforesaid narrative, we are of the opinion that the prosecution was able to discharge the onus cast on it to prove the foundational facts.
Thus, the initial burden of proving that the appellant â€" Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 had the knowledge that the car
[White coloured Indica Car bearing registration number HR-01-J-9639 (Marked as P-1)] owned and being driven by him at the relevant point in time
was being used for transporting narcotics, stood discharged. Once it is concluded that the prosecution had produced adequate evidence to prove
beyond reasonable doubt that the accused â€" Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 had the knowledge, the presumption
contemplated under Section 35 of the NDPS Act would have to be drawn against him to hold that he had a culpable mental state for indicting him for
the offence for which he had been charged.
20. As has been observed by this Court in the case of Ram Avatar alias Rama (2011) 12 SCC 207 (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.
21. The argument advanced on behalf of the appellant â€" Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 that both the courts below
have erred in discarding the defence taken by him to the effect that it was Sonu [PW-1] who was the real culprit and was apprehended by the NCB
officers with the contraband, but he was let off on bribing the NCB officers, does not meet the test of preponderance of probability and has rightly
been disbelieved by both the courts in the absence of any corroboration through cogent evidence.
(f) PLEA OF THE ACCUSED BEING IN THE CUSTODY OF THE NCB MUCH BEFORE THE NAKA WAS LAID
22. Another plea taken by the appellant â€" Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 is that he was in the custody of the NCB
officers much before the point in time when the naka was laid on 11th December, 2005. The deposition of witness produced by him, Soravdeep
Singh19 [DW-1] to substantiate that a call was made from his mobile number at 09.54 PM on 11th December, 2005 when he had already been
detained by the NCB officers, to a landline number installed in the Office of the Zonal Director at Chandigarh, was not of any assistance as the mobile
phone bills summoned by the appellant were not proved in accordance with law. The trial Court observed that the bill in question [Ex.DW-1/A] was
only a computer-generated one. The records pertaining to the bill were not produced by the witness summoned and the bill did not bear the signature
of any authority even to prove that the mobile phone number asserted by the appellant â€" Satnam Singh Appellant in Criminal Appeal No. 1933 of
2014 as belonging to him, stood in his name. We see no reason to take a different view.
23. Reliance placed by learned counsel on the decisions in Dudh Nath Pandey v. State of Uttar Pradesh (1981) 2 SCC 166, State of Haryana v. Ram
Singh (2002) 2 SCC 426, Adambhai Sulemanbhai Ajmeri and Others v. State of Gujarat (2014) 7 SCC 716 and Jumi and Others v. State of Haryana
(2014) 11 SCC 355, to urge that defence witnesses are entitled to equal treatment with those produced by the prosecution and different yardsticks
cannot be prescribed for prosecution witnesses as compared to defence witnesses is a well-settled principle of criminal jurisprudence, but cannot take
the case of the appellant â€" Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 any further inasmuch as the trial Court has carefully
analysed the testimonies of the defence witnesses before drawing an adverse presumption against the accused. The High Court has also taken pains
to go through the entire testimonies of the defence witnesses and only thereafter endorsed the view taken by the trial Court. There has been no
arbitrariness or undue favour shown to the prosecution witnesses from the appellant-Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 to
claim any bias.
(g) PLEA OF UNRELIABILITY OF THE TESTIMONY OF THE INDEPENDENT WITNESS, SONU
24. As for the contention of learned counsel for the appellant â€" Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 that the testimony of
Sonu [PW-1] 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 Thingsâ€, states as follows :
“100. Persons in charge of closed place to allow search â€
(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.â€
25. 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 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.
26. In the case at hand, the naka was laid by the officials of the NCB in an open area near the roundabout of Sectors 24/25, Chandigarh. Such was
the location that there was no inhabitant in the vicinity and the time of the naka was an unearthly hour of 01.00 a.m. on 12th December, 2005. In this
background, the two independent witnesses who were driving from Jalandhar towards Chandigarh, were flagged down by the NCB officers and
joined in the investigation. Therefore, the shadow of doubt sought to be cast on the testimony of Sonu [PW-1] by claiming that he was the real culprit,
is clearly a trumped up story that cannot be sustained. The other independent witness, Mukesh Kumar, had turned hostile and the prosecution did not
examine him. As a consequence, the two defence witnesses, Parkash Ram DW 3 and Ravi Kant Pawar DW4 produced by the appellant â€" Satnam
Singh Appellant in Criminal Appeal No. 1933 of 2014 to demonstrate that Mukesh Kumar was a stock witness, would hardly be of any assistance.
The other procedural discrepancies sought to be pointed out by learned counsel for the appellant â€" Satnam Singh Appellant in Criminal Appeal No.
1933 of 2014 and referred to in paras 4.3 and 4.4 above, are not considered so vital in nature as to unsettle or demolish the entire case set up by the
prosecution against the appellant â€" Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014.
(IV) CONCLUSION
27. In view of the aforesaid discussion, we are of the opinion that the appellant â€" Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 has
failed to make out a case for acquittal. Therefore, the order of conviction and the sentence imposed on Satnam Singh Appellant in Criminal Appeal
No. 1933 of 2014 is maintained. Criminal Appeal No. 1933 of 2014 is accordingly dismissed and the order of conviction and the sentence imposed on
Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014 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 Appellant in Criminal Appeal No. 1136 of 2014 is acquitted.
