Conviction Cannot Be Based Solely On Co-Accused’s ‘Confessional Statement’: SC [Read Judgment]

‘On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court.’

The Supreme Court has held that conviction under Narcotic Drugs and Psychotropic Substances Act, 1985, cannot be based solely on the confessional statement of a co-accused, in the absence of a substantive piece of evidence.

The Bench comprising of Justice Abhay Manohar Sapre and Justice Uday Umesh Lalit were considering an appeal against conviction recorded by the High Court of Punjab and Haryana in an NDPS Case. (Surinder Kumar Khanna vs. Intelligence Officer Directorate of Revenue Intelligence)

Surinder was made an accused in the case based on statements given by the other accused. All the accused were convicted by the Trial court, and later upheld by the High court.

Senior Advocate Jayant Bhushan, who appeared for Surinder, submitted before the bench that apart from the so called statements of co-accused there was nothing against him and that he was neither arrested at the site nor was the contraband material in any way associated with him.

The court took note of the fact that the issue whether statement recorded under Section 67 of the NDPS Act can be construed as a confessional statement even if the officer who recorded such statement was not to be treated as a police officer, is pending consideration of a larger Bench.

The bench observed: “Even if we are to proceed on the premise that such statement under Section 67 of the NDPS Act may amount to confession, in our view, certain additional features must be established before such a confessional statement could be relied upon against a co-accused. It is noteworthy that unlike Section 15 of Terrorist and Disruptive Activities Act, 19876 which specifically makes confession of a co-accused admissible against other accused in certain eventualities; there is no such similar or identical provision in the NDPS Act making such confession admissible against a co-accused. The matter, therefore, has to be seen in the light of the law laid down by this Court as regards general application of a confession of a co-accused as against other accused.”

The bench also quoted Hari Charan Kurmi and Jogia Hajam v. State of Bihar, wherein it was observed: “In dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its 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 guilt which the judicial 12 mind is about to reach on the said other evidence.”

The bench observed that this is the law regarding confession of co-accused except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused.

Setting aside the High court judgment and acquitting the accused, the bench observed: “In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting the involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused.”