HC: Officers invested with powers U/S.53 of the NDPS Act are “police officers” within the meaning of S.25 IEA

  

The Jharkhand High Court recently comprising of bench of Justice Shree Chandrashekhar & Justice Ratnaker Bhengra observed that officers invested with powers U/S.53 of the NDPS Act are “police officers” within the meaning of S.25 IEA. (Lacchu Ganjhu vs The State of Jharkhand)

The bench noted that officers who have been given powers under section 53 of the NDPS Act are “police officers” within the scope of section 25 of the Evidence Act, which means that any confessional statement made to them is forbidden under section 25 of the Evidence Act and cannot be used to prosecute an accused under the NDPS Act.

Facts of the Case

The case was registered against petitioners on the allegation of illegal cultivation of poppy plants under sections 15 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The learned District & Additional Sessions Judge-II, Latehar has held that the seizure witnesses have proved seizure of the illegal narcotic plants and the other witnesses such as PW2, PW4 and PW8 have also supported the prosecution case. Lacchu Ganjhu was convicted and sentenced to R.I for ten years with a fine of Rs. 1,00,000/- under sections 15 and 21 of N.D.P.S Act on each count separately. Lacchu Ganjhu was further convicted and sentenced to R.I for 10 years with a fine of Rs. 1,00,000/- under section 18 of N.D.P.S Act.  The appellant, namely, Parana Ganjhu was convicted and sentenced to R.I for ten years with a fine of Rs. 1,00,000/- under section 18 of N.D.P.S Act.

Contention of the Parties

The counsel for the petitioners argued that the procedure prescribed for search and seizure was not followed, the prosecution has not established that poppy was cultivated in the agricultural field of Parana Ganjhu and, above all, based on the evidence of official witnesses conviction of the appellants cannot be recorded under sections 15, 18 and 21 of N.D.P.S Act.

On the other hand the learned counsel argued that the appellants are based on cryptic and insufficient evidence. The chain leading to the seizure and production of the contraband was completely broken. There is no evidence that the seized contraband was deposited in Malkhana. The Malkhana register was not produced and the in-charge of Malkhana was not examined during the trial. The Block Development Officer who allegedly accompanied the raiding team was not examined by the prosecution.

Courts Observation & Judgment

He further relied on SC judgment in the case of Ashok v. State of M.P wherein it was observed that seizure witnesses turning hostile may not be very significant by itself but before a conviction is recorded there must be connecting evidence. But, in the present case, there is no satisfactory evidence, either oral or documentary, to show that the seized contraband was cultivated by the appellants and report of the chemical examination was of the seized material.

The court relied on the supreme court judgment in the case of Tofan Singh v. State of T.N Wherein it was noted, “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 to convict an accused under the NDPS Act.”

The bench noted that if a statement by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so section 30 provides that such a confession may be taken into consideration even against a co-accused, however, the proper approach to adopt would be to consider the other evidence against the co-accused and if such evidence may sustain the charge framed against him the Court may turn to the confession to lend assurance to the tentative opinion formed by it.

The court while allowing the petition remarked, “Subject to the exception provided therein, section 8 of Narcotic Drugs and Psychotropic Substances Act, 1985 provides that: no person shall – (a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of the Act. The prosecution evidence is that the appellants were found removing poppy plants from the field and Lacchu Ganjhu has suffered a disclosure statement admitting that he was cultivating in the field of Parana Ganjhu but, there is no independent supporting evidence to establish that the appellants were cultivating poppy in contravention of the provisions of N.D.P.S Act. The prosecution evidence that poppy plants were seized in the field belonging to Parana Ganjhu is not sufficient to fasten liability under sections 15, 18 and 21 of N.D.P.S Act upon the appellants.

In view of the aforesaid undisputed facts, we hold that the prosecution has failed to prove the charges against the appellants and, accordingly, the judgment of conviction are set-aside.”

Read Judgment  

 

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