Allowed

Irsad Alam v. State of Bihar

Patna HC28 Jan 2014CR. APP (DB)/1182/2008

Case brief

AI extract

What is this about?

Appeal against conviction under Section 23 of the NDPS Act for carrying 113 kg of ganja in a hidden chamber of a pick-up van. The court held that the driver's statements before Customs officers, denying knowledge of the chamber and the ganja, were admissions and not confessions, and that conscious possession was not proved. Conviction set aside.

What did the court decide?

Appeal allowed; conviction under Section 23 NDPS Act and the sentence set aside; accused acquitted of the offence on benefit of doubt and to be released forthwith unless required in any other case.

Irsad Alam Vs State of Bihar — Narcotics (NDPS) | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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CRIMINAL APPEAL (DB) NO.1182 OF 2008

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(Against the judgment of conviction, dated 14^th August, 2008 and the order of sentence, dated 20^th August, 2008, passed in Trial No. 16 of 2006, arising out of Complaint Petition Case No. 57/Custom/Bettiah/05-06, by Shri Umesh Chand Shrivastava, Additional Sessions Judge, Fast Track Court No. III, West Champaran at Bettiah) IRSAD ALAM, SON OF NURUL HODA, RESIDENT OF VILLAGE AND POLICE STATION RAMGARHWA, DISTRICT EAST CHAMPARAN .... .... APPELLANT VERSUS THE STATE OF BIHAR

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.... .... RESPONDENT

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======================================================== APPEARANCE : FOR THE APPELLANT : MR. VIKRAMDEO SINGH, ADVOCATE FOR THE STATE : ======================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI AND HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE I. A. ANSARI) Date: 28-01-2014

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I. A. ANSARI, J. 1. Whether a statement, made by an accused, admitted to have done an act, would amount to his confession if the act done is not admitted to have been done, or is not proved to have been done, knowingly and/or consciously? This is the primary question raised in this appeal. Our search, for an answer to the question, so posed, brings us to the question as to what is a „ confession‟ . Yet another question, required to be answered in this appeal, is as to whether there is any difference in the use and probative value of confession made by an accused I the confession of a co-accused. 2. By the judgment, dated 14.08.2008, passed, in Trial No. 16 of

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2006, by learned Additional Sessions Judge, Fast Track Court No. III, West Champaran, at Bettiah, the appellant stands convicted under Section 23 I of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, „NDPS Act, 1985‟). In consequence of his conviction, the appellant stands, under the order, dated 20.08.2008, sentenced to suffer rigorous imprisonment for a period of twelve years and pay fine of Rs, 1,00,000/- and, in default of payment of fine, undergo simple imprisonment for three years.

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3. The case of the prosecution, as unfolded in the trial, may, in brief, be described thus:

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(i) On 15.02.2006, at about 1 AM, Superintendent of Custom (I) Circle, Bettiah (PW 7) received an information that a Mahindra pick-up van, bearing registration No. BR-04B/4971, was proceeding towards Sugauli carrying ganja, which was hidden inside the said pick-up van. On receiving this information, PW 7, Superintendent of Custom, constituted a team and, on 15.02.2006, at about 3 AM, the team reached Dubalia. A van, bearing the said registration number, was seen coming. The van was stopped, which was found being driven by the present accused-appellant.

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(ii) On conducting search of the said pick-up van, a secret chamber, containing ganja in some packets, was found. The van was, then, brought to the Custom Office, at Bettiah, along with two independent witnesses. Having

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brought the van, ganja was downloaded and weighed. The ganja was found to be 113 kgs by weight. The van, along with ganja, was, then, seized and seizure list (Exhibit-1) was accordingly prepared.

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(iii) A sample was drawn and the same was sent to Ghaziabad for chemical examination and the chemical examination report (Exhibit-2) was procured.

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(iv) The accused-appellant was interrogated and his statement (Exhibit 3) was recorded. The accused, in the said statement (Exhibit-5), denied that he had, knowingly and consciously, carried the ganja , his version being that he was unaware of the existence of false chamber in the pick-up van as he was not a regular driver; rather, he was an electrical mechanic of vehicles and that he had carried the ganja on being told by the owner of the said pick-up van that he was to go to Ballia and, on reaching Ballia, he would be required to contact Dr. Hira and should, thereafter, await instructions of the owner of the seized van.

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(v) Having completed the investigation, a complaint, being Unit Case No. 57/Cus/Bth/05-06, was laid, which led to the registration of Trial No. 16 of 2006.

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4. At the trial, when a charge, under Section 23 I of the NDPS Act, 1985, was framed against the accused, he pleaded not guilty thereto.

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5. In support of their case, prosecution examined altogether eight witnesses. The accused was, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and in the examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial.

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6. Having reached the conclusion that the accused was found to have been carrying ganja , as was alleged against him, the learned trial Court convicted him accordingly and passed sentence against him as indicated above.

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7. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person, has preferred the present appeal.

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8. We have heard Mr. Vikramdeo Singh, learned Counsel for the accused-appellant. Nobody appears on behalf of the State.

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9. While considering the present appeal, it needs to be noted that the fact that the pick-up van, in question, was stopped by the Custom Officials and that the seizure of ganja , kept hidden in a false chamber, in the pick-up van, was made at the Custom Office, could not be shaken by the defence inasmuch as PW 1, who was, at the relevant point of time, posted as a Constable with the Custom Office, Bettiah, has deposed that their Superintendent (PW 7) directed them to go for checking along with other constables and Inspector Rameshwar Prasad (PW 6), whereupon they proceeded for checking vehicles and when they reached Dubalia Majhaulia road,

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they saw a pick-up van coming on the said road. The van was stopped. The driver was asked to get down from the van and interrogated. On his interrogation, the driver replied that he had not known as to what was being carried in the said pick-up van. The van was, then, brought to the Custom Office, Bettiah, where the van was inspected in the presence of two independent witnesses and was found to be carrying ganja inside a false chamber. The ganja was weighed and found to be 113 kgs., whereupon the ganja was seized. Though this witness (PW 1) was put to cross-examination, nothing really was elicited from the cross-examination of this witness (PW 1) to show that what he had deposed was untrue or false.

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10. Broadly in tune with the evidence of PW 1, PW 2, PW 3, PW 4 and PW 5, who were posted at Custom Office, Bettiah, at the relevant time, have deposed that at the direction of the Superintendent of Custom, Bettiah, they proceeded for checking vehicles and when they reached Dubalia Majhaulia road, they saw a pick-up van coming on the said road. The van was stopped. The driver was asked to get down from the van and interrogated. On his interrogation, the driver replied that he was not aware as to what was being carried in the said pick-up van . The van was brought to the Custom Office, Bettiah, where the van was inspected in the presence of two independent witnesses and was found to be carrying ganja inside a false chamber. The ganja was weighed and found to be 113 kgs., whereupon the ganja , so found, was seized.

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11. Nothing has been elicited from the cross-examination of the witnesses aforementioned, namely, PW 2, PW 3, PW 4 and PW 5, too, to show that what they have deposed is untrue or false.

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12. Coming to the evidence of the Custom Inspector, Rameshwar Prasad (PW 6), it may be noted that according to his evidence, on 15.02.2006, at 1 AM, while he was posted at Custom Office, Bettiah, Superintendent of Custom, Bettiah, received information that a pick-up van would go to Ballia via Sugaulia and would pass through Draulia village and, upon receiving this information, the Superintendent reached the said village with two Inspectors, Constables and Havaldar and, at about 3 AM, on the same day, a pick-up van was noticed coming towards Sugaulia, the van was stopped and searched. In course of search, the pick-up van was found to have a false chamber on the floor of the pick-up van, wherein ganja was being carried in packets. It is in the evidence of PW 6 that the entire ganja was taken out in presence of witnesses, weighed and was found to be 113 kgs. And, thereafter, sample was taken out and the same was sent to Ghaziabad for chemical examination.

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13. PW 6 has clarified that it was Inspector Anuj Kumar Sinha, who had made the seizure, but he has been suffering from paralysis. The s eizure list has been proved as Exhibit-1 and the chemical examination report has been proved as Exhibit 2. This report shows that the sample aforementioned gave positive test for ganja . The statement of the accused-appellant, given before the

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Custom Officer, was proved by this witness as Exhibit-3. This witness (PW 6) has also proved the interrogatory statement of the accused-appellant, as Exhibit 4, the interrogation having been conducted by the Superintendent of Custom (PW 7) and, then, the accused was forwarded, with the prosecution report, to the Court. The prosecution report has been proved as Exhibit-5; whereas forwarding report has been proved as Exhibit-7.

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14. Close on the heels of the evidence of PW 6 is the evidence of PW 7, who, on 15.02.2006, was posted as Superintendent of Custom, Custom Officer, Bettiah. This witness‟s evidence is that on 15.02.2006,at 1 AM, he received information that a pick-up van, bearing registration No. BR-04B/4971, was going towards Sugauli carrying ganja . On receiving this information, he (PW 7) constituted a team and reached near Duraulia and, at about 3 AM, on the same day, he saw the van, the van was stopped and a search was made and the search party found ganja kept in some packets inside a false chamber. The said van was brought to the Custom Office by an Officer. On arriving at the Office, ganja was unloaded and weighed, which was found to be 113 kgs, and, then, sample was drawn and sent for chemical examination. This witness (PW 7) has proved the interrogatory statement of the accused-appellant as Exhibit-4.

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15. Though both, PW 6 and PW 7, were cross-examined by the defence, nothing could be pointed out, on behalf of the accusedappellant, to show that their evidence was intrinsically false or

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untrue. In substance, therefore, the evidence of PW 6 and PW 7 remained unshaken, same as the evidence of Pw 1, PW 2, PW 3, PW 4 and PW 5.

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16. There is, however, a striking difference between the evidence of PW 6 and PW 7, on the one hand, and PW 1, PW 2, PW 3, PW 4 and PW 5, on the other, inasmuch as the evidence of PW 1, PW 2, PW 3, PW 4 and PW 5 do not show that the pick-up van, in question, was inspected at the place, where the van was stopped, for, according to the evidence of PW 1, PW 2, PW 3, PW 4 and PW 5, the pick-up van was brought to the Custom Office, Bettiah and, then, searched and the search revealed that ganja was being carried inside a false chamber and the ganja, so found, was accordingly seized; whereas the evidence of PW 6 and PW 7 is to the effect that pick-up van was searched at the very place, where it was stopped, and ganja , kept in some packets, inside a false chamber, was found and, then, the pick-up van was brought to the Custom Office, where ganja was downloaded, weighed and seized.

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17. We may, now, pause here to refer to the evidence of PW 8, who is a cultivator. Noticeable it is that his evidence is that at about 6:30 AM, the Custom Officials brought the pick-up van and, on asking them, he (PW 8) came to know that ganja was being carried inside the van. PW 8 has stated that ganja was taken out and weighed before he reached the Custom Office and about 10-15 gms. Of ganja was taken as sample and was kept in a container. The seizure list of ganja was prepared and this witness (PW 8) put his

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signature on the seizure list (Exhibit-1). In cross-examination, this witness (PW 8) has stated that he is also a seizure witness in yet another case.

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18. Considering the fact that there is no explanation offered or discernible from the evidence on record as to how PW 8 happened to be present at the Custom Office, Bettiah, as early as 6:30 AM, it is not only difficult, but well-nigh impossible to readily believe and accept the evidence of PW 8 as true. More so, when he was not present at the place, where the van was stopped, nor was he (PW 8) present, at the Custom Office, at the time, when the ganja was downloaded from the pick-up van, weighed and seized. This apart, PW 8 has claimed that it is the accused, who brought the said van to the Custom Office by driving the same; whereas the evidence, given by PW 7, is to the effect that at the place, where the van was stopped, the van was taken into custody by Custom Officers and, then, the van was driven to the Custom Office by an Officer of the Custom. The evidence of PW 8 is, therefore, not of much value and does not advance the case of the prosecution.

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19. Notwithstanding, however, the fact that the evidence of PW 8 cannot be safely relied upon, the fact remains that the evidence of the remaining witnesses have substantively remained unshaken and their unshaken evidence is to the effect that information, as mentioned above, was received by PW 7, Superintendent of Custom, Bettiah, who constituted a team, which reached Duraulia village, and the team, having noticed the van, in question, coming,

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stopped the van, made a search and, on finding ganja kept inside a false chamber of the van, the van was seized along with ganja and was brought to the Custom Officer, Bettiah, where ganja was unloaded and weighed, and, upon weighment, the ganja was found to be 113 kgs. It also surfaces from the evidence on record that a sample of the ganja was drawn from the said seized ganja and the said sample was sent, for chemical analysis, to Ghaziabad, which reported that the sample was of ganja . The evidence on record has proved that Exhibit-3 is the statement of the accused-appellant, made before PW 7, Superintendent of Custom, Bettiah. The evidence on record further proves that Exhibit-4 contains the answers given by the accused in response to his interrogation. 20. It is worth noticing that the contents of Exhibit-3 and Exhibit4 have been construed as confession of the accused-appellant and it has been contended, on behalf of the respondent, that the confession, made by the accused-appellant, coupled with the fact that seizure of ganja has been proved, in the manner as has been described by the witnesses, the conviction of the accused-appellant is wholly in accordance with law and may not be interfered with. 21. As against the above submission made on behalf of the respondent, it has been submitted by Mr. Vikramdeo Singh, learned Counsel, appearing on behalf of the accused-appellant, that the confession, which the accused-appellant had allegedly made, was no “ evidence” and cannot be considered as “ evidence” .

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22. Learned Counsel for the accused-appellant has also submitted

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that the prosecution must, first, prove that the accused-appellant was found in possession of ganja and it is only when the prosecution can be said to have succeeded in proving their case that the ganja was, knowingly and consciously, being carried by the accused-appellant, then, the respondent can seek corroboration from the alleged confessional statement of the accused-appellant.

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23. In other words, what the learned Counsel for the accusedappellant contends is that having proved their case in accordance with law, independent of the alleged confession made by the accused-appellant, the prosecution could have sought use of the alleged confession of the accused-appellant to lend assurance to the conclusion, which the learned trial Court, can be said to have, otherwise, reached for, a confession , strictly speaking, is not evidence and cannot be made basis for conviction of the maker of the confession.

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24. With regard to the above, learned Counsel for the accusedappellant submits that though in terms of the provisions of the NDPS Act, 1985, seizure of ganja ought to have been made at the very place, where ganja was found, it is the admitted case of the prosecution that the vehicle, which was allegedly carrying ganja , had been brought to the Custom‟s Office, Bettiah, and it was there that the seizure of ganja took place. In the face of this violation, the seizure of ganja cannot be said to have been proved; so contends the learned Counsel for the accused-appellant.

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25. Further submission of the learned Counsel for the accused-

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appellant is that the accused-appellant‟s statement, contained in Exhibit 3, as well as his statement, contained in Exhibit-4, are inadmissible in evidence inasmuch as the same had been made before the Custom Officers, who stand on the same footing as do a police officer. Reliance, in this regard, has been placed on Section 25 of the Evidence Act, which envisages that confession of an accused, made before a police officer, is inadmissible in law.

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26. The question, which, now, arises for determination, is whether a confession made before a Custom officer is inadmissible being barred by Section 25 of the Evidence Act? Yet another question is whether confession of an accused is no „ evidence‟ unless there is other „ evidence‟ on record proving the case of the prosecution and whether the confession of a co-accused can be used for the purpose of only corroboration or rendering of assurance to the conclusion, which the Court might have, otherwise, reached?

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27. The contentions, raised above, bring us to the question as to whether a Custom Officer can be regarded as a Police Officer within the meaning of Section 25 of the Evidence Act. The other question is whether the confession of an accused is substantive evidence against him if he is maker of the confession and, if so, whether the confession of an accused alone is sufficient to convict an accused person if the confession is found to be true and voluntary, even if the confession is retracted . Whether there is any difference in the use and probative value of the confession of an accused made against his own interest vis-à-vis the use and probative value of the

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confession made by a co-accused. The next and the last question is: What is a confession and whether the accused-appellant‟s statements, contained in Exhibits-3 and 4, can be construed as a confession at all.

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28. Let us, first, answer the question as to whether a Custom Officer stands, in the realm of Section 25 of the Evidence Act, on same footing, as does a Police Officer.

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29. We may point out herein that referring to its decision, in Badku Joti Sawant V. State of Mysore (AIR 1966 SC 1746), Supreme Court, in Ramesh Chandra Mehta Vs. State of West Bengal (AIR 1970 SC 940), has clearly held that a Custom Officer is not a police officer within the meaning of Section 25 of the Evidence Act and, therefore, a statement, made before a Custom Officer, by a person, who is arrested, is not covered by Section 25 of the Evidence Act.

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30. Situated thus, it is clear that a confession , if made to a Custom Officer , will not be barred by Section 25 of the Evidence Act and would, therefore, be admissible in evidence.

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31. Let us, now, take note of the law, which governs the admissibility and use of the confessional statement of a co-accused as distinguishable from the confession of an accused made against his own interest.

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32. To put it a little differently, the scope and use of confessional statement of an accused made against his own interest is quite distinct and distinguishable from the scope and

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use of the confessional statement of a co-accused.

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33. When the prosecution seeks conviction of an accused on the basis of the confession of an accused himself, there is no impediment in basing the conviction of the accused on his own confession if the Court finds such a confession voluntary and true ; yet, as a rule of practice, it is unsafe to rely upon a confession, particularly, if the confession stands retracted unless the Court is satisfied that the retracted confession is voluntary and true and the same has been corroborated in material particulars. We may refer to Sarwan Singh Rattan Singh v. State of Punjab ( MANU/SC /0038/1957 : AIR 1957 SC 637) , wherein the Supreme Court laid down as follows:

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“It is, however, true that Sarwan Singh has made a confession and in law, it is always open to the Court to convict an accused on his confession itself though he has retracted it at a later stage.

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………….

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Nevertheless usually Courts require some corroboration to the confessional statement before conviting an accused person on such statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case.”

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(Emphasis is added)

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34. What is, however, important to note is that there must be general corroboration of the confession by the materials on record

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and the corroboration need not be with mathematical accuracy. This aspect of the matter is easily discernible from the decision in Pyare Lal Bhargava (supra) , wherein it was contended that the accusedAppellant No. 2, in his confession, did not own up that he, too, had stabbed, at least, one of the two deceased. The Supreme Court did not pay any importance to this aspect of the matter on the ground that when the confession is read as a whole, the same leave no doubt that the accused appellant No. 2 had admitted the complete role played by him in association with other assailant for causing death of their two victims. The relevant observations of the Supreme Court made, in Pyare Lal Bhargava (supra) , run as follows:

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“17. Shri Vishwanathan then contended that A-2 in his confession did not own that he also stabbed at least one of the two deceased. That does not matter much, because a reading of the confession as a whole leaves no doubt that A-2 has admitted the full length role played by him in association with the other two assailants for murdering the two ladies. Hence, the very fact that he did not say in so many words that he also inflicted one stab injury on the deceased is of no consequence. In a way, this aspect is a further assurance to us that his confession was not what the police

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wanted him to say to the Magistrate.”

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(I. In fact, in Pyare Lal Bhargava v. State of Rajasthan ( MANU/SC/0152/1962 : AIR 1963 SC 1094) , the Supreme Court laid down as follows:

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“A retracted confession may form the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It can not even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for, a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the Court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars .”

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(Emphasis is added)

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(I. That there is no impediment in law in conviction an accused solely on his own confession, even if retracted, provided that the Court believes such a confession as voluntary and true has been made clear, by the Supreme

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Court in Kehar Singh v. The State (Delhi Administration) (MANU/SC/0241/1988 : AIR 1988 SC

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1883) . That no Court can throw away confession merely because the confession is retracted, has been clearly laid down in State of Tamil Nadu v. Kutty alias Lakshmi Narashinhan (MANU/SC/0443/2001 : 2001 CRI L.J. 4168) , wherein the Supreme Court has observed and held as follows:

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“Learned Judges of the High Court declined to act on the said confession mainly for two reasons. First is that the confession was retracted by the maker thereof and second is that the recovery of articles was made prior to the confession. We may state at the outset itself that both reasons are too insufficient for overruling the confession.

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It is not the law that once a confession was retracted the Court should presume that the confession is tainted. As a matter of practical knowledge we can say that non-retracted confession is a rarity in criminal cases. The retract from confession is the right of the confessor and all the accused against confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The Court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The twin test of a

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confession is to ascertain whether it was voluntary and true. Once these tests are found to be positive the next endeavour is to see whether there is any other reason, which stands in the way of acting on it. Even for that, retraction of the confession is not the ground to throw the confession overboard.”

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(Emphasis is added)

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37. In K.I. Parunny v. Asstt. Collector (HQ), Central Excise collectors, Cochin, (MANU/SC/2070/1997 : (1997) 3 SCC 721) , the Supreme Court has, in no uncertain words, clarified that in a criminal trial punishable under the provisions of the Indian Penal Code, it is, now, well settled legal position that confession can form the sole basis of conviction.

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38. After taking into consideration a number of its own decisions, the Supreme Court, in R.I. Parunny (supra), has laid down succinctly the law with regard to basing of conviction of an accused, on his own confession, in the following words:

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“It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the court could examine the evidence adduced by the prosecution to find out

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whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the court is satisfied from the evidence that it was voluntary then it is required to examine whether the statement is true. If the court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and practice require that court would seek assurance getting corroboration from other evidence adduced by the prosecution.”

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(Emphasis is added) 39. What follows from the above discussion, if we may reiterate, is that there is no legal bar in basing the conviction of an accused on

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his own confession if the confession is found to be voluntary and true; but safer it is, as a rule of general practice and prudence, that the Court seeks some corroboration from other materials on record and if such corroboration is received, conviction can be safely based on the confession of the accused. We may also point out that when a confession is found to be voluntary and true, the same cannot be refused to be acted upon merely on the ground that the confession stands retracted, for, even a retracted confession can form legal basis of conviction if the Court is, as observed in Pyare Lal Bhargava (supra), satisfied that the confession is true and voluntary.

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40. The law with regard to the use of confession of a co-accused is, however, strikingly differently.

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41. It is Section 30 of the Evidence Act, which makes the confession of a co-accused relevant. There is a marked difference between the probative value of the confession of an accused I the confession of a co-accused and this difference appears to have, quite often, created confusion and incorrect approach, though the law on the use of the two kinds of judicial confessions is very well settled.

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42. The confession, made by an accused, if found voluntary and true, can be made basis for his own conviction. Though corroboration of such a confession is not a condition precedent for making use of the confession as basis for conviction, prudence requires that some corroboration of the material particulars of the confession is received from the evidence on record. As against such

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use of confession against the maker of his own confession, the confession of a co-accused is no evidence at all and it cannot be used as a foundation for conviction of the accused, who is not maker thereof, though the same can, indeed, be used as a supporting piece of evidence against the accused, who is not the maker thereof.

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43. The reasons for not treating the confession of a co-accused as evidence are, broadly speaking, that the confession of a co-accused is not given on oath; it is neither given in the presence of the accused against whom the confession is sought to be relied upon nor is the maker‟s version is tested by cross-examination. In fact, such a confession is a weaker type of evidence than the evidence of an approver, for, the approver is cross-examined by the accused, whereas the confession of a co-accused is not subjected to crossexamination and brought on record without allowing the accused against whom such a confession is sought to be proved any opportunity of cross-examining the co-accused and testing the veracity or otherwise of the confession of the co-accused.

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44. A confession is relevant against the maker, because the maker implicates himself in a crime, but the confession of the co-accused differs in this regard inasmuch as it is some one else‟s confession, which is sought to be used against a person, who never owned up the guilt or the truth of the confession of his co-accused. (See Bhuboni Sahu v. The King 76 Ind. App. 147 and Emperor v. Lalit Mohan 12 CRI LJ 2 (Cal) 53 .)

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45. A co-accused, who confesses his guilt, stands on no better footing than an accomplice. The law insists that the accomplice‟s evidence be not used without corroboration. Prudence demands that when such an accomplice implicates another, then, the person, who is so implicated, has a right to test the evidence given against him by his co-accused; but no such opportunity is available in law to the person, who implicates his co-accused by making a confession.

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46. The resultant effect is that the confession of a co-accused is used against another accused without giving him any opportunity of testing the veracity of the confession by cross-examining the maker thereof. No wonder, therefore, that the Supreme Court has laid down that the confession of the co-accused is not really „evidence‟ in its stricto senso and cannot be made foundation for conviction of the person, who did not make the confession, though such confession can be used as an additional reason for believing the evidence on record provided that the evidence on record, independent of the confession of the co-accused, convinces the Court of the guilt of the accused against whom such a confession is relied upon. A reference, in this regard, may be made to Kashmira Singh v. The State of

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Madhya Pradesh (MANU/SC/0031/1952 : AIR 1952 SC 159) , wherein the Supreme Court observed and laid down as follows:

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“The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 8. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against

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the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then, of course it is not necessary to call the confession in aid. But cases may arise, where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and, thus, fortify himself in believing what without the aid of the confession he would not be prepared to accept.”

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47. It is of immense importance to note that the above observations, made in Kashmira Singh (supra) , were in respect of Section 30 of the Evidence Act, that is, for using the confession of a co-accused and, hence, the decision, in Kashmira Singh (supra) , becomes relevant, when the confession of a co-accused is sought to be used as basis for conviction. In short, Kashmira Singh (supra) lays down the law with regard to use of the confession of a coaccused.

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48. Drawing the distinction between the use of confession against its maker under Section 24 of the Evidence Act and the use of the confession against a co-accused under Section 30 of the Evidence Act, the Supreme Court, in K.I. Pavunny (supra) , observed and held as follows:

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“21. In Kashmira Singh’s case, the coaccused, Gurcharan Singh, made a confession. The question arose whether the confession could be relied upon to prove the prosecution case against the Appellant, Kashmira Singh. In that context, Bose, J. speaking for a Bench of three Judges laid down the law that the court requires to marshal the evidence against the accused excluding the confession altogether from consideration. If the evidence de hors the confession proves the guilt of the Appellant, the confession of the co-accused could be used to corroborate the prosecution case to lend assurance to the Court to convict the Appellant. The Court considered the evidence led by the prosecution, dehors the confession of co-accused and held that the evidence was not sufficient to bring home the guilt of Appellant Kashmira Singh of the charge of murder. The Appellant was acquitted of an offence under Section 302 I but was convicted for the offence under Section 201 I for destroying the evidence of murder and sentenced him to seven years‟ rigorous

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imprisonment. …………..... xxx xxx xxx xxx xxx xxx 23. In Haricharan Kurmi v. State of Bihar , a Constitution Bench was to consider as to when the confession of co-accused would be used as evidence under Section 3 of the Evidence Act. It was held that the confession of a co-accused can not be treated as substantive evidence. If the court believed other evidence and felt the necessity of seeking an assurance in support of its conclusion deductible from the said evidence, the confession of the co-accused would be used. It was, therefore, held that the court would consider other evidence adduced by the prosecution. If the court on confirmation thereof, forms an opinion with regard to the quality and effect of the said evidence, then, it is permissible to turn to the confession in order to receive assurance to the conclusion of the guilt of the

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accused. It is, thus, seen that the

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distinction has been made by the Court between the confession of an accused and uses of a confession of the coaccused at the trial. ”

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(Emphasis supplied)

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49. Thus, what emerges from the above discussion is that before using the confession of a co-accused, the Court has to, first, marshal the evidence against the accused, who is sought to be roped in with the help of the confession of the co-accused, and if, on such marshalling of evidence, the Court finds that independent of the confession of the co-accused, the evidence on record reveals sufficient incriminating materials for believing the complicity of the accused in the offence, then, in such an event, the confession of the co-accused can be used as a supporting piece of evidence for lending assurance to the other evidence on record and in order to fortify the Court in believing that the conclusion that it had reached that the accused is guilty is correct.

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50. In short, the confession of a co-accused is not substantive piece of evidence on which can rest the entire foundation for conviction of the accused, who is not the maker of the confession. Far from this, confession of a co-accused can be used merely for the purpose of lending assurance to the conclusion already reached by the Court that the accused against whom the confession of a coaccused is sought to be used already stands proved to have committed the offence. It is in this context that the decision, in

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Kashmira Singh (supra) , needs to be read. There is no impediment, we feel impelled to clarify, in basing the conviction of an accused on his own confession if the confession is found to be voluntary and true, though, generally, corroboration of such a confession is desirable.

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51. In Balbir Singh v. State of Punjab MANU/SC/0101/1956 : AIR 1957 SC 216 , when it was suggested that the confession of the two accused should be read together in order to condemn both, for, both the confession were inconsistent with, and contrary to, each other, the Supreme Court held and observed as follows:

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“So far as the confessional statement of Jagir Singh is concerned, it may be taken into consideration against the Appellant if it fulfils the conditions laid down in Section 30 of the Evidence Act. One of the conditions is that the confession must implicate the maker substantially to the same extent as the other accused person against whom it is sought to be taken into consideration. On reading Jagir Singh‟s confession as a whole, it appears that he was really trying to throw the main blame on the Appellant, though he admitted that he entered into the house of Mst. Chinti, brought out a Kirpan lying there, and took some silver ornaments from that house. He denied that he had anything to do with the murder of the two boys; he more or less tried to make out that he was an unwilling spectator of the crime committed by the Appellant. In these circumstances, the utmost that can be submitted on behalf of the Appellant is that the confession of Jagir

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Singh should not be used at all against the Appellant. At one stage of his argument Mr. Sethi did submit that the confession of Jagir Singh should be excluded altogether from consideration against the Appellant; later, however, he submitted that both the confessions should be read together in order to condemn both as untrue on the ground of the difference between the two confessions. We are unable to accept this submission of Mr. Sethi. We have pointed out that some of the differences are immaterial, some are due to the desire of Jagir Singh to throw the blame on the Appellant-a circumstance of which the benefit has been given to the Appellant, and some other differences are clearly resolved by other evidence on the record. We do not think that in these circumstances the confessional statements can be condemned out of hand or in limine as untrue.

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(15) In this case, both the confessions were retracted subsequently, and the proper approach in case of this nature is to consider each confession as a whole on its merits and use it against the maker thereof, provided the Court is in a position to come to an unhesitating conclusion that the confession was voluntary and true; and though a retracted confession, if believed to be true and voluntarily made, may form the basis of a conviction, the rule of practice and prudence requires that it should be corroborated by independent evidence. ”

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52 . Referring to the decision in Balbir Singh (Supra) , the Supreme Court, in its later decision in K.I. Pavunny (Supra) , observed thus:

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“This Court upheld the conviction and held that it is no necessary that each item of fact or circumstances mentioned in the confessional statement required to be corroborated separately and independently. It would be sufficient if there is general corroboration.”

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The ratio in Kashmira Singh case was referred to. 53. Thus, the principle, deducible from the decision in

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Balbir Singh (Supra) , Pyare Lal Bhargava (Supra) and K.I.

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Pavunny (Supra), is that a confession made by an accused can be relied upon if the Court is satisfied that the same is voluntary and true. In short, thus, even if the confession is retracted , such a retracted confession can be treated as true if it receives general corroboration from the evidence on record and it is unwise for the court to read together two confessions made by two accused persons and condemn both even though both the confessions are found to be voluntary and the inculpatory parts thereof receive general corroboration from the remaining evidence on record.

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54. The above position of law is further fortified by the decision of the Supreme Court in Parmananda Pegu vs. State of Assam (AIR 2004 SC 4197 : 2004 (7) SCC 799) , wherein the

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Supreme Court, referring to its earlier decision in Chandrakant Chiminlal Desai v. State of Gujarat, has made it clear that the decision, rendered in Chandrakant Chiminlal Desai’s case (supra), is per incuriam inasmuch as it has been incorrectly laid down, in Chandrakant Chiminlal Desai’s case (supra), that a retracted confession is not evidence and the Court wrongly applied the law, laid down in Kashmira Singh’s case (supra) to the case of an accused, who retracts his own confession, while the case of Kashmira Singh (supra), is a case which relates to the used of confession of a co-accused. The relevant observations, made in Parmananda Pegu’s case (supra), read as under:

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“The decision of this Court in Chandrakant

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Chiminlal Desai v. State of Gujarat MANU/SC/0467/1992 : 1992 CriLJ 2757 has created some difficulty in understanding the law, which is otherwise so well settled. The learned Judges imported the observations which were made in Kashmira

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Singh v. State of Madhya Pradesh MANU/SC/0031/1952 : 1952 CriLJ 839,

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in the context of evidentiary value of the confession of co-accused and applied them to the case of retracted confession. It appears that the learned Judges went by the head-note in the AIR, which opens up with

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the sentence “The confession of an accused person.........” However, in the text of the judgment, it is crystal clear that the entire discussion and the statement of law was only with reference to the confession of the co-accused. While clarifying that the confession of the co-accused is not evidence in the ordinary sense of the term as pointed out by the Privy Council, this Court observed, in Kashmira Singh’s case, that such a confession cannot be made the foundation of a conviction and can only be used in support of other evidence.

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In Chimanlal’s case , the learned Judge, after referring to the Head-note portion of the MANU/SC/0031/1952 : 1952 CriLJ 839 , proceeded to apply the test applicable to the confession of the coaccused to a case of retracted confession. The Court observed:

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“The High Court has on the other hand made this confessional statement as the basis and has then gone in search for corroboration. It concluded that the confessional statement is corroborated in material particulars by

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prosecution witnesses without first

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considering and marshalling the evidence against the accused excluding the confession altogether from consideration. As Held in the decision cited above only if on such consideration on the evidence available, other than the confession a conviction can safely be based then only the confession could be used to support that belief or conclusion. .......”

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In view of the error in comprehending the scope of the decision in Kashmira Singh’s case, the decision in Chimanlal’s case falls close to the category of decisions rendered per incuriam. If followed, it would run counter to a catena of coordinate Bench decisions and the larger Bench decision in Pyare Lal Bhargava’s case (supra).”

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(Emphasis supplied)

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55. In short, thus, even if the confession is retracted, a confession made by an accused can be relied upon if the Court is satisfied that the same is voluntary and true. Such a retracted confession can be treated as true if it receives general corroboration from the evidence on record.

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56. As against the above use and probative value of a confession made by an accused against his own interest, the use and probative value of the confession of a co-accused stands on different footing inasmuch as before using the confession of a co-accused, the Court has to, first, marshal the evidence against the accused, who is sought to be roped in with the help of the confession of the co-accused, and if, on such marshalling of evidence, the Court finds that independent of the confession of the co-accused, the evidence on record reveals sufficient incriminating materials for believing the complicity of the accused in the offence, then, in such an event, the confession of the co-accused can be used as a supporting piece of evidence for lending assurance to the other evidence on record and in order to fortify the Court in believing that the conclusion that it had reached that the accused is guilty is correct. To put it a little differently, the confession of a co-accused is not substantive piece of evidence on which can rest the entire foundation for conviction of the accused, who is not the maker of the confession. Far from this, confession of a co-accused can be used merely for the purpose of lending assurance to the conclusion already reached by the Court that the accused against whom the confession of a co-accused is sought to be used already stands proved to have committed the

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offence. It is in this context that the decision, in Kashmira Singh (supra), needs to be read. There is no impediment, we feel impelled to clarify, in basing the conviction of an accused on his own confession if the confession is found to be voluntary and true, though, generally, corroboration of such a confession is desirable.

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57. In the backdrop of law, which we have discussed above, let us, now, consider the contents of Exhibits-3 and 4 and, then, determine if these two statements, when read together, could be construed as confession of the accused-appellant.

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58. For the above purpose, we reproduce herein below the contents of Exhibits-3, which has been treated as the confession of the accused-appellant. Exhibit-3 reads as follows:

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“I, Irshad Alam, son of Shri Nurul Hoda, am resident of village + Post Office + Police Station Ramgarhwa, District Motihari (East Champaran). The Officers and Staffs of Custom Department gave me signal to stop my vehicle, on 15.02.2006, at 3 AM, at Dubolia. Being the driver of the vehicle, I stopped the vehicle since the vehicle was empty. The Officers of the Custom Department began to search the vehicle. The vehicle, which was seized, is Mahindra pickup van, whose Registration No. is BR

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04B/4971. The Officer of the Custom, while searching the vehicle, knocked the floor of the vehicle and started to talk about some hidden chamber in the vehicle. When I told them that there is nothing in the vehicle, then, they asked me as to where I am going. I replied that I am going to Ballia (U.P.), as I have to bring the household articles of Dr. Hira Babu, I do not know the complete address and the owner had told me to contact him on phone after reaching Ballia, and then, you will be able to contact Doctor Saheb. But the Officers and Staffs of Custom, Bettiah, repeatedly enquired me about the hidden chamber in the vehicle and the articles in the vehicle, but I failed to reply. Again, with the help of rinch, the Officers of Custom, Bettiah, opened the screw of the hidden chamber of the vehicle and assured me that ganja is hidden in the secret chamber. Thereafter, the Officers of the Custom Department brought me to the Custom Office. Bettiah, along with two witnesses and before two independent witnesses, they seized the ganja, kept in the

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hidden chamber of the vehicle, which was found to be 113 kgs. By weight. It would take three days to go to Ballia and return from there and the wages for this work was fixed to Rs. 1,000/-. As I used to work as Electrician in a garage, in Ramgarhwa, and this is my own shop in which there is a small hut and I work in the shop with some tools. In the mean time, I was ready to bring the vehicle to Ballia on the request of one Rajesh Patel, who is also a resident of Ramgarhwa, whom I know a little, but I do not know the name of his father. I do not know about the article kept in the vehicle and I am poor and uneducated person, and I do not know about the article. I have done this work for the first time for money. I request you to forgive me. As I only know how to put my signature. Therefore, I got my statement in writing by one Vinod Singh, who is a Katib, on which I have put my signature after thoroughly going through the same.

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I was not pressurized in any manner during recording of the statement. I have given this

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statement without pressure. This is my first mistake, therefore, forgive me .” 59. Coupled with the above, Exhibit-4 reads as under: “Question : xx xx xx Answer : xx xx xx Question : What is your occupation? Answer : I work as an Electrician at Ramgarhwa in a small garage. Question : xx xx xx Answer : xx xx xx Question : xx xx xx Answer : xx xx xx Question : xx xx xx Answer : xx xx xx Question : xx xx xx Answer : xx xx xx Question : When you were stopped by Custom Officers near Dubolia, where you were going? Answer : I was going to Ballia (U.P.) with the vehicle, bearing registration no. BR 04B/4971. Question : What was seized from your vehicle? Answer : 113 kgs. Of ganja, hidden in a

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secret chamber, has been seized from my vehicle.

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Question : Who is the owner of the seized ganja? Give the full name and address.

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Answer : One Shri Rajesh Patel, resident of village Mushahari, P.O. and P.S. Ramgarhwa, District Motihar (East

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Champaran) had handed over me the said vehicle along with ganja at a petrol pump near Ramgarhwa Bazaar.

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Question : Give the phone number of Rajesh Patel, if any?

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Answer : The phone number of the house of Rajesh Patel is 06255-233954 and the mobile number is 9835279593.

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Question : Where did you want to carry the seized ganja?

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Answer : I had to hand over the seized ganja to Dr. Hira at Ballia (U.P.). Rajesh Patel had directed me to contact him on phone after reaching Ballia, thereafter Rajesh Patel will provide the full address of Dr. Hira.

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Question : How many times have you carried ganja to Ballia, before it?

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Answer : I have done this work for the first time for money.

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Question : Do you know that carrying of ganja is a crime?

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Answer : Yes, I know. I have done this wrong work for money.

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Question : How much money would have to be paid for carrying ganja?

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Answer : Rajesh Patel had told me that he will pay me Rs. 1,000/- for this work.

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Question : Do you want to give this statement before a Magistrate?

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Answer : No, I want to give my whole statement before the Superintendent, Custom Duty, Bettiah.

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Question : Do you want to contact any of your relative?

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Answer : No

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Question : Do you want to say anything about it?

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Answer : No, I have already given my statement aforesaid. I request you to forgive me as I am a poor man and I have done this work for money. As I am not educated, and anyhow, I put my signature, therefore, I get

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this statement recorded in writing by Vinod Singh, Katib. I signed over it after going through the same. During recording of my statement, I was not pressurized in any manner.”

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60. If the contents of Exhibits 3 and 4 are dispassionately analyzed, it becomes abundantly clear that the accused-appellant, in Exhibits 3 and 4, has admitted the fact that he was driving the van, which was, later on, discovered to have a false chamber, wherein ganja was found kept; but he has expressed his ignorance about the existence of the false chamber as well as the fact that ganja was being carried by him knowingly and/or consciously.

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61. In the facts and circumstances of the present case, could the accused-appellant have been legally held to have committed the offence, which he stood charged with?

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62. To reach a correct answer to the question, posed above, let us, now, turn to the question as to what is confession and how does admission differ from confession?

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63. It needs to be borne in mind that the Evidence Act, 1872, does not define „ confession‟ . Stephen, in his Digest on the Law of Evidence, defines „ confession‟ as an admission made, at any time, by a person charged with crime or suggesting the inference that he committed the crime. Straight, J. in R. v. Jagrup, reported in MANU/UP/0071/1885 : (1885) ILR 7 All 646 , and Chandawarkar, J., in R. v. Santya Bandhu, reported in (1902) 4

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Bom LR 633 , did not, however, accept such a wide definition and gave a narrower meaning to the expression „confession‟ by holding that only a statement, which was a direct acknowledgment of guilt, would amount to „confession‟ and that a „confession‟ would not include merely inculpatory admissions, which fall short of being admission of guilt.

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64. The controversy, as to what „confession‟ means, came to be, eventually, resolved and settled, way back in 1939, by Privy Council, in Pakala Narayana Swami v. The King Emperor (MANU/PR/0001/1939 : AIR 1939 PC 47 ). The Privy Council, in Pakala Narayana Swami (supra), explained as to what „confession‟ means but, did not, strictly speaking, follow Stephen‟s definition of confession that „admission‟ of facts, made by an accused, suggesting an inference that he had committed the crime, is confession . The Privy Council, in Pakala Narayana Swami (supra), laid down that no statement, containing self-exculpatory matter, would amount to confession if the exculpatory statement was of some facts, which, if true, would negative the offence alleged to have been confessed. It was further pointed out, in Pakala Narayana Swami (supra), that the word „confession‟ as used in Evidence Act cannot be construed to mean “ a statement by an accused „suggesting the inference that he committed „ the crime .” 65. In its often quoted passage, defining confession , in Pakala Narayana Swami (supra), Lord Atkin stated thus, “ Moreover, a confession must either admit in terms the offence, or at any rate

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substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man‟s possession. Some confusion appears to have been caused by the definition of confession in Article 22 of Stephen‟s Digest of the Law of Evidence which defines a confession as an admission made at any time by a person charged with crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined, it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal cases and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles : confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act. 1872: and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused “suggesting the inference that he committed” the crime” .

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66. From what has been defined as confession by the Privy Council, in Pakala Narayana Swami (supra), it becomes clear that a statement cannot be confession unless it either admits, in terms, the offence or, at any rate, substantially all the facts, which constitute the offence. The definition, so given, in Pakala Narayana Swami (supra), also makes it clear that admission of certain facts,

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which suggests an inference that the maker of the admission has committed the crime charged with, will not be treated as confession . The Supreme Court has consistently followed this definition of confession in its subsequent decisions in Palvinder Kaur v. The State of Punjab (MANU/SC/0038/1952 : AIR 1952 SC 354) , Om Prakash v. State of U. P. (AIR 1959 SC 205), A Nagesia v. Bihar State (MANU/SC/0285/1963 : AIR 1965 SC 79), and Faddi v. State of Madhya Pradesh (AIR 1964 SC 57) . 67. In Palvinder Kaur (supra), the statement, made by the accused, was that she had placed her husband‟s dead body in a trunk and had carried it in a jeep and thrown it into a well. But with regard to the cause of her husband‟s death, her statement was that her husband had accidentally taken a poisonous substance erroneously thinking a substance to be a medicine. The Supreme Court, referring to Pakala Narayana Swami’s case (supra) and the dictum of Lord Atkin, held, in Palvinder Kaur (supra), that a statement, which contained self-exculpatory matter, would not amount to a „confession‟ if the exculpatory matter is of some fact, which, if true, would negative the offence alleged to have been confessed . The Court has also added that a statement, to be a confession must either admit, in terms, the offence or, at any rate, substantially, all the facts, which constitute the offence, and that an admission of a gravely incriminating fact, even a conclusively incriminating fact, is not, of itself, a confession .

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68. From the definition of confession , as given in Pakala

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Narayana Swami (supra), it becomes clear, as already indicated above, that unless an accused admits, in terms, the offence or, substantially, all the facts, which constitute the offence, such a statement will not amount to confession . In other words, if an accused does not own up his guilt or does not admit, substantially, all the facts, which constitute the offence, then, admission of such facts, which may give rise to an inference that he has committed the crime, will not be treated as confession .

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69. However, the admission , made in such a statement, which does not amount to confession , may, nevertheless, be admissible, under Section 21 of the Evidence Act, against an accused depending, of course, on the facts of given case, for, Section 21 permits such admission to be proved and the embargo, placed by Section 26, which prohibits confession , made by a person, “whilst he is in custody of a police officer” from being admitted into evidence, will not be attracted. The contours of Section 21 of the Evidence Act are not bounded by the limitations of the person being in the custody of the police officer. If an admission , made by an accused, while in the custody of police, to a person, other than police officer, amounts to confession , such admission would transgress into forbidden area of confession and would not be admissible under Section 26; but if such an admission is short of confession , such an admission would be admissible against the maker.

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70. With regard to the above, one may refer to the case of Faddi v.

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Madhya Pradesh, (AIR 1964 SC 57) , the appellant lodged a first information report and, based on this information, the dead body of his step-son was recovered and three persons were arrested. As a result of the investigation, however, the appellant was arrested and he was sent up for trial, which resulted in his conviction and a sentence of death.

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71. In his appeal to the Supreme Court in Faddi’s case (supra), it was contended by the appellant that the first information report ought not to have been admitted, because of Section 25 of the Evidence Act and Section 162 of the Code of Criminal Procedure. This contention was turned down on the ground that neither of the two provisions barred admissibility of the first information report as that report was only an admission by the appellant of certain facts, which had a bearing on the question as to how and by whom the murder was committed and whether the statement of the appellant, in the Court, denying the evidence of certain prosecution witnesses was correct or not. Such admissions , held the Supreme Court, in Faddi (supra), were admissible under Section 21 of the Evidence Act and, as such, could be proved against the accused.

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72. From the decision, in Faddi’s case (supra), what becomes transparent, as already indicated above, is that when a statement, made by an accused, not being a direct acknowledgment of guilt, or not being admission of the facts, which constitute the offence charged with, can, nevertheless, be admissible in evidence, as admission , by virtue of Section 21 of the Evidence Act and can be

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proved against the accused.

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73. Clarifying the position of law with regard to the question as to whether a confession , which falls short of an actual admission of guilt, may be used as evidence against the maker, under Section 21 of the Evidence Act, the Supreme Court, in Central Bureau of Investigation v. V. C. Shukla (MANU/SC/0168/1998 : AIR 1998

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SC 1406) ; (1998 Cri LJ 1905) , observed and held as under:

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_‟45. It is thus seen that only voluntary and direct acknowledgment of guilt is a confession but when a confession falls short of actual admission of guilt it may nevertheless be used as evidence against the person who made it or his uthorized agent as an „admission‟ under Section 21. The law in this regard has been clearly and – in our considered view – correctly explained in Monir‟s Law of Evidence (New Edition at pages 205 and 206), on which Mr. Jethmalani relied to bring home his contention that even if the entries are treated as „admission‟ of Jains still they cannot be used against Shri Advani. The relevant passage reads as under: - “the distinction between admissions and confessions is of considerable importance for two reasons.

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Firstly, a statement made by an accused person, if it is an admission, is admissible in evidence under Section 21 of the Evidence Act, unless the statement amounts to a confession and was made to a person in authority in consequence of some improper inducement threat or promise, or was made to Police Officer, or was made at a time when the accused was in the custody of Police Officer. If a statement was made by the accused in the circumstances just mentioned, its admissibility will depend upon the determination of the question whether it does not amount to a confession. If it amounts to a confession, it will be inadmissible, but if it does not amount to a confession, it will be admissible under Section 21 of the Act as an admission, provided that it suggest an inference as to a fact which is in issue in or relevant to the case and was not made to a Police Officer in the course of an investigation under Chapter XIV of the Code of Criminal Procedure. Secondly, a statement made by an accused person is admissible against others who are

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being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him. Therefore, from the point of view of Section 30 of the Evidence Act also the distinction between an admission and a confession is of fundamental importance .”

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(Emphasis added) 74. In Kanda Padayachi v. State of Tamil Nadu

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(MANU/SC/0126/1971 : AIR 1972 SC 66) , the question was admissibility of a statement, which had been made by the accused, while he was in the police custody, to a doctor regarding some minor injuries found on his person. The accused had stated to the doctor, while in the police custody, that it was the deceased, who, at about midnight, on July, 10, 1969, had caused injury by biting him. The Supreme Court, referring to the case of Pakala Narayana Swami (supra), held, in Kanda Padayachi (supra), that the said statement amounted to only an admission of fact howsoever, incriminating, but since the said statement did not, by itself, establish the guilt of the maker of such admission , the statement would not amount to confession within the meaning of Sections 24

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to 26 of the Evidence Act. The Supreme Court makes it clear, in Kanda Padayachi (supra) that the admissibility of an admission , which does not amount to confession , is not barred and cannot be questioned under Section 26 of the Evidence Act and that such an admission is admissible in evidence and can be relied upon as an admission under Section 21 of the Evidence Act.

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75. We may pause here to point out that Section 161 of the Code of Criminal Procedure, 1973, makes provisions for examination of witnesses by the police during investigation. There is no specific provision in the Code of Criminal Procedure, 1973, providing for examination of an accused person. Should it, therefore, mean that an accused cannot be examined by a police officer? While answering the question, so posed, it needs to be borne in mind that though the heading of Section 161 of the Code of Criminal Procedure reads, “ Examination of witnesses by police ”, the provisions, contained in Sub-section (1) of Section 161, clearly state that „a police officer may, during investigation, examine, orally, any person supposed to be acquainted with the facts and circumstances of the case‟ . The language, used in Sub-section (1) of Section 161 of the Code of Criminal Procedure, thus, refers to “ any person ” and does not use the expression “ any witness ”. It, therefore, logically, follows that the expression “ any person ” occurring in Section 161 of the Code of Criminal Procedure, would include not only witnesses, but also an accused, for, an accused would also be a person, who is „supposed to be acquainted with the facts and circumstances of the

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case‟ .

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76. What is, now, necessary to point is that Section 162 of the Code of Criminal Procedure provides that a statement, made to a police officer, and recorded by him, under Section 161 of the Code of Criminal Procedure, is inadmissible in evidence except for the purpose of contradicting the maker of the statement, when he appears, as a witness, at the trial. What is of utmost importance to note, in this regard, is that when the maker of such a statement, as described in Sub-section (1) of Section 162 of the Code of Criminal Procedure, dies, or when such a statement relates to the cause of death or to any of the circumstances of the transaction, which resulted in his death, in the cases in which the cause of that person‟s death comes into question, or, when such a statement leads to the discovery of a fact, as provided in Section 27 of the Evidence Act, such a statement, according to Sub-section (2) of Section 162 of the Code of Criminal Procedure, should not be treated as a statement, which Sub-section (1) of Section 162 of the Code of Criminal Procedure makes inadmissible in evidence.

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77. Thus, a statement of an accused, recorded under Section 161 of the Code of Criminal Procedure, shall, according to Section 162(2) of the Code of Criminal Procedure, be admissible in evidence if the statement leads to discovery of a fact. The provisions, so made in Section 162(2) of the Code of Criminal Procedure, fortify the conclusion that Sub-section (1) of Section 161 of the Code of Criminal Procedure covers examination of an accused.

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78. What is, now imperative to note is that since a statement of an accused, recorded by a police officer, during investigation, under Section 161 of the Code of Criminal Procedure, is, in the light of the provisions of Section 162 of the Code of Criminal Procedure, not admissible unless the statement, in terms of Section 27 of the Evidence Act, leads to discovery of a fact, the question is whether an admission made, by an accused, of an incriminating fact, to a police officer, when such statement is not covered by Section 161 of the Code of Criminal Procedure, (i.e. when the statement containing „admission‟ has not been made during investigation) be not barred under the law ?

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79. While considering the above aspect of the case, it needs to be noted that Section 25 of the Evidence Act makes a confession, made to a police officer, under any situation, completely barred from being admitted into evidence ; but no such bar is imposed on statement(s) of an accused, which may amount to „admission‟ of some incriminating fact, which does not amount to „confession‟ .

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80. Necessarily, therefore, when a statement is made by an accused to a police officer and when such a statement, though amounts to admission , is not covered by Section 161 of the Code of Criminal Procedure, such a statement, of even an incriminating fact, would be admissible in evidence provided that the statement does not, if we may reiterate, fall within the meaning of Section 161(1) read with Section 162(1) of the Code of Criminal Procedure.

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81. Thus, when a statement falls short of a plenary

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acknowledgment of guilt, it would not be a confession , even though the statement is in respect of some incriminating facts, which taken, along with other evidence, tends to prove the guilt of the accused. However, such a statement would, indeed, be admission . 82. The statement, made by an accused to the doctor, as to how he had sustained injuries or as regards the cause of injury was nothing, but certain admissions made by the accused. Such admissions were, in Kanda Padayachi (supra), held to be admissions under Section 21 of the Evidence Act. Thus, when an admission amounts to confession , such an admission will not be admissible in evidence if at the time when such admissions were made, the accused was in police custody; but if such an admission does not amount to confession , the admission would be admissible in evidence, under Section 21 of the Evidence Act, against the accused even if he, at the relevant point of time, was in the custody of police (See Kanda Padayachi v. State of Tamil Nadu reported in MANU/SC/0126/1971 : AIR 1972 SC 66 ). The relevant observations, made in Kanda Padayachi (supra), read as under:

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“14. ...it is clear that the statement in question did not amount to a confession. It was an admission of a fact, no doubt, of an incriminating fact and which established the presence of the appellant in the deceased‟s room but which clearly was not barred under Section 26. The Sessions Judge and the High

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Court were, therefore, right in holding it to be admissible and in relying upon it. In this view, counsel‟s second contention also fails and has to be rejected.”

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83. `Nishi Kant Jha v. State of Bihar (MANU/SC/0060/1968 :

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AIR 1969 SC 422) is a Constitution Bench decision on the controversy as to whether a Court can admit a part of a statement, made by an accused, as admission and reject the other part, for, the argument, advanced in Nishi Kant Jha (supra), was whether the statement, allegedly made by the accused and recorded by the village Mukhiya (village headman), before the accused was handed over to the police, was admissible in evidence; and, if so, whether the Court could reject a part of such statement as unbelievable and rely, on the remainder part, along with the other evidence on record, to hold the accused guilty of the offence charged with. The questions, posed in Nishi Kant Jha (supra), therefore, as indicated by the Constitution Bench, were : “Whether the statement of the appellant recorded by a village Mukhiya before he was handed over to the police is admissible in evidence, and if so, whether the Court could reject a part thereof and rely on the remainder along with other evidence adduced to hold him guilty of an offence he is charged with?”

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84. The Supreme Court, in Nishi Kant Jha (supra), has clarified that when a statement, made by an accused, has both inculpatory as well as exculpatory parts and when the Court, in such a case,

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finds the exculpatory part inherently improbable or when the exculpatory part is contradicted or belied by the other evidence on record, there is no impediment, in law, for the Court to reject the exculpatory part and rely upon the inculpatory part. This apart, what the decision, in Nishi Kant Jha (supra), further makes clear is that if such inculpatory part , combined with other pieces of evidence on record or statement of the accused made under Section 313 of the Code of Criminal Procedure, proves that the accused was the author of the crime, there is no impediment, in law, in convicting the accused in such a case.

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85 . In Bhagwan Singh Rana v. State of Haryana MANU/SC/0096/1976 : AIR 1976 SC 1797, it was contended before the Supreme Court that the Courts below erred in accepting those parts of the statement of the appellant in Exhibits PB and PC, which were inculpatory and in rejecting those parts, which were exculpatory, and that this approach was incorrect inasmuch as the requirement of the law, it was contended, is that such statements should either be accepted, as a whole, or not at all.

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86. Referring to the decision, in Nishi Kant Jha (supra), the Supreme Court, in Bhagwan Singh Rana (supra), held, once again, that it is open to the Court to reject the exculpatory part and take the inculpatory part of a statement made by an accused if there is other evidence to prove the exculpatory part incorrect. An examination of Exhibit PB and PC shows, points out the Supreme Court, in Bhagwan Singh Rana (supra), that the appellant

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admitted that he was working as Sub-Post Master, when P.W. 5 came to the post office and delivered a parcel under postal certificate. In his presence, the parcel was opened by Taj Ram and that he (Taj Ram) took out a lady‟s wrist watch from the parcel and gave it to the appellant. This admission, made by the appellant, was treated as admissible in evidence.

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87. In Keshoram Bora v. State of Assam,

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(MANU/SC/0111/1978 : AIR 1978 SC 1096) , there was an admission by the accused that he did assault the deceased with a sharp-cutting weapon, which is called „holonga‟ , and as a result of such assault, the deceased fell down. The justification, offered by the accused, for assaulting the deceased was that he had assaulted the deceased in order to protect his ploughman from being attacked with a dao. The Supreme Court found that the accused did not dispute the fact that he had fatally assaulted the deceased; but what the accused had pleaded was self-defence. The Supreme Court held that in such a case, the evidence, adduced by the prosecution, shall be judged in the light of the admission made by the accused.

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88. In Keshoram Bora (supra), too, it was submitted before the Supreme Court that it was not open to the Court to take the inculpatory part into consideration and reject the exculpatory part. It was, therefore, submitted, before the Supreme Court, that an admission can be taken either as a whole or not at all. The Supreme Court, referring to Nishi Kant Jha (supra), pointed out

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that the law stands well-settled that where a confession or admission is separable, there can be no objection to the taking of one part into consideration, which transpires to be true, and reject the other part, which transpires to be false.

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89. What crystallizes from the above discussion is that a statement cannot be a „confession‟ and cannot be treated to be a „confession‟ unless the accused confesses to have committed the crime, which he is alleged to have committed, or unless he admits all such facts, which constitute the offence. While, confession is made by an accused to a police officer or while confession is made by an accused to any person, if at the time of making of confession , the accused was in the custody of a police officer, who is in police custody, is inadmissible in evidence, unless the „confession‟ is made in the immediate presence of a Magistrate, the admission, made by such an accused, who is in police custody, to a person, other than a police officer, would nevertheless be admissible if voluntarily made, however incriminating the „admission‟ of the accused may be. When a statement, treated as a confessional statement, contains both exculpatory as well as inculpatory statements, it is possible for the Court to reject exculpatory parts of such a confessional statement, which stands belied by the other evidence on record, and rely upon that inculpatory part of the confessional statement, which is proved to be true by the evidence on record.

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90. In such a fact situation, as the one at hand, it is not only

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difficult, but wholly impossible to confidentally hold, and we do conclude, that the accused-appellant, in the present case, has not been proved to have carried the van, containing ganja kept hidden in a false chamber, knowingly and consciously. Mere regret, therefore, which the accused-appellant, expressed in Exhibits 3 and 4, for having carried ganja cannot be construed as his confession ; moreso, when he had, according to the contents of Exhibits 3 and 4, driven the van, in question, without knowing that the van had a false chamber and/or ganja was lying hidden in the said chamber.

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91. In the light of the discussion held above, the contents of Exhibits 3 and 4 cannot, in law, be treated as confession of the accused-appellant, when he has not admitted all the facts, which constituted the offence nor has he admitted, expressly or impliedly, his guilt.

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92. The fall out of the above discussion is that the accusedappellant cannot be taken to have made any confession inasmuch as the accused-appellant, nowhere, admitted that he was aware of the existence of the false chamber in the pick-up van, in question, and/or that ganja was being carried in the said van. By no means, therefore, the accused-appellant‟s statements, contained in Exhibits 3 and 4, could be construed as his confession.

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93. It is in the absence of the fact that he had confessed his guilt, we are, now, required to determine if he is proved to have committed an offence under Section 23 I of the NDPS Act, 1985.

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Suffice it to point out in this regard that though the accusedappellant has been proved, in the light of the evidence on record, to have carried the pick-up van, which was, eventually, found to have ganja kept hidden in a false chamber, the fact remains that while driving the vehicle and carrying the ganja , hidden in the false chamber, the accused-appellant, according to the evidence on record, was not aware of the existence of the false chamber made in the said van nor was he aware of the fact that ganja was hidden in the said false chamber.

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94. In the circumstances mentioned above, the charge, which had been brought against the accused-appellant, cannot be said to have been proved beyond reasonable doubt. The accused was, therefore, entitled to acquittal.

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95. Considering the fact that the accused-appellant has not been proved to have, knowingly and consciously, carried the ganja in the manner as has been alleged against him, we are clearly of the view that he could not have been convicted of the offence charged with. It is, therefore, not necessary for us to enter into the question as to whether there was any violation of the provisions of the NDPS Act, 1985, with regard to the search and seizure made in the present case.

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96. In the result, and for the reasons discussed above, this appeal is allowed. The conviction of the accused-appellant and the sentence passed against him by the judgment and order,

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under appeal, are hereby set aside. The accused-appellant is held not guilty of the offence, which he has been convicted of, and he is acquitted of the same under benefit of doubt.

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97. Let the accused-appellant be released from custody, forthwith, unless he is required to be detained in connection with any other case .

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98. Let the Lower Court records be sent back to the learned Court below with a copy of this judgment and order .

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( I. A. Ansari, J.)

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S. P. Singh, J. : I agree

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(Samarendra Pratap Singh, J.)

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Prabhakar Anand/ AFR