Brief Facts
- The appeals have been filed before this Hon’ble Court by two persons, Balwinder Singh and Satnam Singh, who were convicted for possession of heroin. Both were found guilty and convicted for commission of offence under Section 21 read with Section 8 of the NDPS Act. The Special Court imposed death sentence on Balwinder Singh, which was modified by the High Court to 14 years of imprisonment. Satnam Singh was sentenced to 12 years of imprisonment.
- The appeals by both the accused persons were dismissed by the High Court except for the modification in the order of sentence.
Issues
- Whether the confession made by the accused before the officer of the NCB is admissible in evidence?
- Whether the burden of proof shifts to the accused for the offence under the NDPS Act in light of the provisions of section 54 of the NDPS Act?
- Role of section 100(4) of the CrPC in the search conducted under the NDPS Act.
- Important of defense witnesses in the criminal trial.
Held
- The Court refused to set aside Satnam Singh’s conviction and affirmed the order of the Trial Court and High Court. However, the conviction of Balwinder Singh was set aside as his conviction was solely based on the inadmissible confessional statement.
- In view of the decision of Tofan Singhv. State of Tamil Nadu , (2021) 4 SCC 1 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.
- 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.
- 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.
- 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.
- 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.
Relevant Para No.
- 10, 16, 17, 23 and 25