Case Note & Summary
The Supreme Court allowed the appeals of Anwarkhan Jahilkhan Pathan and Firdoskhan Khurshidkhan Pathan against their conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The appellants were convicted by the trial court for possession of 2 kg and 30 grams of heroin and sentenced to 10 years rigorous imprisonment and fine, which was upheld by the Gujarat High Court. The prosecution case was based on a secret information received by NCB Intelligence Officer Deepak Pareek (PW-2) on 30th January 2003 that two persons would deliver contraband at the ST Bus Stand, Kheda. A raiding party was formed, and at the bus stand, Anwarkhan (A-1) was found holding a bag containing two polythene bags of heroin. The second suspect, Firdoskhan (A-2), escaped but was later arrested after being tracked down by Madhya Pradesh Police. The prosecution relied on the seizure, chemical analysis, and statements of the accused recorded under Section 67 of the NDPS Act. The appellants challenged the conviction on multiple grounds: non-compliance with Section 42(2) (failure to forward secret information to superior officer), non-compliance with Section 50 (failure to inform the accused of the right to be searched before a Magistrate or Gazetted Officer), reliance on inadmissible Section 67 statements in light of Tofan Singh v. State of Tamil Nadu, lack of independent panch witnesses, and unreliable identification of Firdoskhan without a Test Identification Parade. The Supreme Court found merit in these submissions. It held that the mandatory requirements of Section 50 were not complied with, as there was no evidence that Anwarkhan was given the option to be searched before a Magistrate or Gazetted Officer. The court also held that the statements recorded under Section 67 by NCB officers are inadmissible as evidence, following the Constitution Bench decision in Tofan Singh. Additionally, the court noted that the prosecution failed to establish compliance with Section 42(2) regarding forwarding of secret information. The identification of Firdoskhan was also found to be unreliable as he was not arrested at the spot and no Test Identification Parade was conducted. Consequently, the Supreme Court set aside the conviction and sentence, acquitting both appellants of all charges.
Headnote
A) Criminal Procedure - NDPS Act - Section 50 - Search of Person - Mandatory Compliance - The requirement to inform the accused of his right to be searched before a Magistrate or Gazetted Officer is mandatory and failure to do so vitiates the conviction. The court held that the prosecution failed to prove that the option under Section 50 was given to the accused, rendering the search and seizure illegal. (Paras 10-11, 14-15) B) Evidence - NDPS Act - Section 67 - Confessional Statements - Inadmissibility - Statements recorded under Section 67 by a police officer or an officer empowered under the NDPS Act are inadmissible in evidence as they are akin to confessions to a police officer, following the decision in Tofan Singh v. State of Tamil Nadu. The court held that the trial court and High Court erred in relying on such statements. (Paras 10, 14-15) C) Criminal Procedure - NDPS Act - Section 42 - Secret Information - Forwarding to Superior Officer - The requirement under Section 42(2) to forward a copy of the secret information to the immediate superior officer is mandatory. The court noted that the prosecution did not establish compliance, which casts doubt on the legality of the search. (Paras 10, 14-15) D) Evidence - Panch Witness - Credibility - Independent Witness - The panch witness being a government servant (Income Tax Department) does not automatically make him an interested witness, but the court considered the overall circumstances including the failure to comply with mandatory provisions. (Paras 10, 12) E) Criminal Procedure - Identification - Test Identification Parade - Necessity - Where an accused is not arrested at the spot and is identified for the first time in court, the absence of a Test Identification Parade (TIP) can affect the reliability of the identification. The court found that the identification of Firdoskhan (A-2) by PW-3 was not reliable. (Paras 10, 14-15)
Issue of Consideration
Whether the conviction of the appellants under Section 21 read with Section 8(c) and Section 29 of the NDPS Act is sustainable in light of alleged non-compliance with Sections 42, 50, and 67 of the NDPS Act, and whether the evidence of panch witnesses and identification of the second accused is reliable.
Final Decision
The Supreme Court allowed the appeals, set aside the conviction and sentence, and acquitted both appellants of all charges.
Law Points
- Section 50 NDPS Act mandatory
- Section 67 NDPS Act statements inadmissible after Tofan Singh
- Section 42(2) NDPS Act compliance
- panch witness credibility
- identification without TIP
