MOHAMMED FASRIN versus STATE REP. BY THE INTELLIGENCE OFFICER

Citation: [2019] 12 S.C.R. 465 · Decided: 04-09-2019 · Supreme Court of India · Bench: DEEPAK GUPTA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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MOHAMMED FASRIN
v.
STATE REP. BY THE INTELLIGENCE OFFICER
(Criminal Appeal No. 296 of 2014)
SEPTEMBER 04, 2019
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.8(c) r/w ss.29, 21, 23(c), 27(A) and s.67 – Intelligence Officer,
Narcotic Department received information that at the instance of
the appellant 7.4 kgs of heroin would be carried in a Toyota Qualis
vehicle – Vehicle apprehended – In terms of the statement of the
accused no.2 (co-accused), he met one ‘M’ from Bombay who told
him that after taking delivery of the contraband from him, the co-
accused was to take the heroin and hand it over to one ‘N, who was
to further hand over the heroin to the appellant – Confessional
statement of the appellant recorded by PW-1 – Appellant convicted
u/s. 8(c) r/w ss.29, 21, 23(c) and 27(A) – Held: Allegation with
regard to the appellant is only in the nature of hearsay that ‘M’ had
told the co-accused that he had to deliver the contraband to the
appellant – Neither the said ‘M’ from Bombay nor ‘N’ have been
examined in the case nor they have been arrayed as accused –
Therefore, the link evidence is totally missing– Further, admittedly
the confession of the appellant was recorded after he was arrested–
Issue, whether statement recorded u/s.67 of the NDPS Act can be
construed as confessional statement even if the officer who recorded
such statement was not to be treated as a police officer, has been
referred to larger Bench in Tofan Singh v. State of Tamil Nadu –
Present case is proceeded on the premise that the confession is
admissible – Even if it is admissible, the Court has to be satisfied
that it is a voluntary statement, free from any pressure and also that
the accused was apprised of his rights before recording the
confession – No such material has been brought on record –
Confession, especially a confession recorded when the accused is
in custody, is a weak piece of evidence and there must be some
corroborative evidence –Other than the two confessional statements,
   [2019] 12 S.C.R. 465
465
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SUPREME COURT REPORTS
[2019] 12 S.C.R.
one of the co-accused and the other of the appellant, the prosecution
has gathered no evidence to link the appellant with the commission
of the offence – Confession of the co-accused, which was said to
be a corroborative piece of evidence is of no material value –
Evidence not sufficient to convict the appellant – Both the Trial
Court and the High Court wrongly convicted the appellant –
Judgment of both the Courts below, set aside.
Evidence – Confession – Admissibility of – Discussed.
Allowing the appeal, the Court
HELD: 1.1 As far as the present appellant is concerned,
the only evidence, if it can be called that, is the statement of a co-
accused (accused no.2) and his own alleged confession. The only
allegation with regard to appellant is that after taking delivery of
the contraband from ‘M’ of Bombay, the co-accused was to take
the heroin and hand it over to one ‘N’.  The said ‘N’ was to further
hand over the heroin to the appellant. Neither the said ‘M’ from
Bombay nor ‘N’ have been examined in the case nor they have
been arrayed as accused. Therefore, the link evidence is totally
missing. Furthermore, the allegation is only in the nature of
hearsay that ‘M’ had told the co-accused that he had to deliver
the contraband to the present appellant. Even if the confession
of the co-accused, A-2 is taken into consideration, it would only
prove that ‘M” (from Bombay) had told the co-accused that ‘N’
would handover the contraband to the present appellant. This
evidence of a co-accused is a very weak type of evidence which
needed to be corroborated by some other evidence. The
confession of a co-accused gives a clue to the investigating
authorities as to how to investigate the matter and against whom
to investigate the matter. Thereafter, it is for the investigating
officers to collect evidence against the said person who has been
named by the co-accused. In the present case no such
corroborative evidence has been led. Admittedly, the confessional
statement of the appellant recorded by PW-1 was recorded after
he was arrested. The issue, whether a statement recorded under
Section 67 of the NDPS Act can be construed as a confessional
statement even if the officer who has recorded such statement
was not to be treated as a police officer, has been referred to a
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larger Bench in the case of Tofan Sing

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