The Himachal Pradesh High Court dismissed a petition challenging the order of acquittal of the respondent for the offence punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Court observed that once it is held that the disclosure is not admissible under Section 27 of the Indian Evidence Act, it will be hit by Section 25 of the Indian Evidence Act as well as Section 162 of the Code of Criminal Procedure, which would make the statement made by the accused during investigation inadmissible in evidence.
Brief Facts:
The police apprehended the accused. The accused fell on his knees and said that he should be pardoned as he had done some illegal act. The police became suspicious that the backpack was containing some illegal substance or forest produce. H.C. Nek Ram searched the backpack. One light yellow carry bag bearing the words "Thank you" (Ex. MO2) was found inside the backpack. The carry bag had black sticks. H.C. Nek Ram checked the sticks and they were found to be charas. He weighed the charas on an electronic weighing scale and its weight was found to be 1.506 Kg. After the completion of the investigation, a challan was prepared and presented before the Court. The accused in their statements recorded under Section 313 Cr.P.C. denied the prosecution case in its entirety.
The learned Special Judge not only upheld the case set up by the prosecution but also negated all the contentions that were raised by co-accused/convict Chetan Parkash and accordingly, he was convicted and sentenced under Sections 20 and 29 of the NDPS Act. However, the respondent herein was acquitted.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that he learned Special Judge has failed to appreciate that it is proved on record that convict Chetan Parkash had purchased the charas from the respondent herein. It was further contended that the prosecution has proved that the convict Chetan Parkash had led the investigating agency to his home where he had concealed the charas after purchasing it from the respondent and these facts are sufficient to convict the respondent under Sections 20 and 29 of the NDPS Act.
The Court noted that the police had examined the call details record and found the location of convict Chetan Parkash and the respondent to be the same. But, this fact itself does not carry the case of the prosecution any further.
The Court observed that admissibility under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered as a consequence of information received from a person in custody, accused of an offense. The 'fact discovered' under Section 27 of the Indian Evidence Act cannot be treated as equivalent to the object produced.
The Court said that once it is held that the disclosure is not admissible under Section 27 of the Indian Evidence Act, it will be hit by Section 25 of the Indian Evidence Act as well as Section 162 of the Code of Criminal Procedure, which would make the statement made by the accused during investigation inadmissible in evidence. A confession made to the police officer during the investigation is hit by Section 25 of the Indian Evidence Act and will not be saved by the provisions of Section 67 of the NDPS Act.
The decision of the Court:
The Himachal Pradesh High Court, allowing the petition, held that the Learned Special Judge has rightly held that there is no other evidence to connect the respondent with the sale of the charas and therefore, he cannot be held guilty of abetting the possession of charas by accused Chetan Parkash.
Case Title: State of H.P. v Hom Singh @ Homi
Coram: Hon’ble Justice Tarlok Singh Chauhan and Hon’ble Justice Satyen Vaidya
Case no.: CRIMINAL MISCELLANEOUS PETITION NO. 1899/2023
Advocate for the Petitioner: Mr. I. N. Mehta
Advocate for the Respondents: None
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