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2020 DIGILAW 304 (GAU)

Akhil Chandra Pathak v. State Of Assam

2020-02-27

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT M.A. Ali, J. - All the three appeals having arisen out of the same judgment dated 27.10.2014, passed by the learned Special Judge, Kamrup (M), in NDPS Case No. 24/2013 are taken up together for hearing and disposal. By the said judgment, the learned Special Judge convicted the appellants under Section 20(b)(C)/8(c)/29 of the NDPS Act R/W Section 149 IPC and sentenced them to imprisonment for 14 years and fine of Rs. 1,00,000/- each, in default to undergo further imprisonment for six months. The appellants were further sentenced to rigorous imprisonment for fourteen years and fine of Rs. 1,00,000/- with default stipulation under Section 29 of the NDPS Act. The sentence of imprisonment were directed to run concurrently. 2. On 05.01.2013, Sri Santanu Aich, Superintendent, NCB received a secret information that one person, namely, Dipak Das will take a consignment of ganja from Nalapara area of Guwahati in two vehicles bearing registration No. AS-01-R/9175 and AS-01-AW/7900. The said information was reduced to writing by Superintendent Santanu Aich and forwarded the same to his superior officer, Officiating Zonal Director, who constituted a team comprising of NCB officers to pursue the information. He also authorized said Santanu Aich to conduct search and seize the contraband and Sri A.K. Mondal to carry out the investigation after the seizure. As per the secret information, the NCB team, under the leadership of Santanu Aich proceeded to the place of operation and reached the Nalapara area at about 20.50 hours and kept surveillance over the vehicles. At about 21.00 hours, they spotted two vehicles bearing registration No. AS-01-R/9175 (TATA Indica) and AS-01-AW/7900 (Chevrolet Beat) as mentioned in the secret information and they followed the said vehicles by their own vehicle. At about 21.30 hours, both the suspected vehicles entered into the residence of Dipak Das at Janakpur, Kahilipara, Guwahati-19 and five persons alighted from the said two vehicles and carried some packets from the vehicles into a room. The NCB team having found two local persons passing through the road, requested them to be witnesses to the search, who agreed to be witnessed to the search and seizure and along with the said two independent witnesses, the NCB team entered into the room of Dipak Das, where they downloaded the packets from the vehicles. On being asked by them, one person opened the door, who introduced himself as Sadhan Deb (appellant). On being asked by them, one person opened the door, who introduced himself as Sadhan Deb (appellant). The NCB team having entered into the room introduced themselves and the four other persons, who were inside the room, also disclosed their identity as Dipak Das, Akhil Pathak, Tiken Das, Sukleswar Das. The NCB team noticed that all of them were weighing the packets of ganja by manual weighing system. After disclosing their identity, the NCB team tested some small sample and found that it was ganja. They also gave notice to the said 5 persons under Section-50 of the NDPS Act asking them whether they would like to be searched personally in presence of Magistrate and as they offered for search without the presence of the Magistrate, the NCB team conducted personal search of all the 5 persons and recovered some innocuous items, like, driving license, identity card, mobile phone, document of the vehicle etc. They also took samples of ganja from all the 32 packets weighing 24 grams each in duplicate and the entire lot of ganja was weighed and found to be 123.4 kg. The NCB team made all the necessary formalities for search and seizure and taking sample etc. in presence of witnesses. Thereafter the samples were sent for forensic examination, which gave positive test for ganja. After completing the process and obtaining forensic report, a formal complaint was lodged with the Special Judge. On the basis of the complaint lodged by the complainant, NCB, the learned Special Judge took cognizance, recorded evidence and eventually charges were framed under Section 20(b)(ii)(C)/25/27A/29/8(C) of NDPS Act R/W Section 149 IPC against all the appellants, to which, they pleaded not guilty. After framing of the charges, the witnesses were further cross examined by the accused. As many as 9 witnesses were examined by the prosecution. After completion of the prosecution evidence, the appellants also examined under Section 313 CrPC and on appreciation of the evidence, learned Sessions Judge convicted the appellants and awarded sentence as indicated above. 3. Aggrieved, the appellants have preferred the appeal. 4. We have heard learned counsels Mr. R. Dey, Ms. T. Som for the appellants and the learned Standing Counsel for NCB, Mr. S.C. Keyal. Also perused the evidence and the materials brought on record. 5. Learned counsel for the appellants assailed the impugned judgment, basically on the following grounds. 3. Aggrieved, the appellants have preferred the appeal. 4. We have heard learned counsels Mr. R. Dey, Ms. T. Som for the appellants and the learned Standing Counsel for NCB, Mr. S.C. Keyal. Also perused the evidence and the materials brought on record. 5. Learned counsel for the appellants assailed the impugned judgment, basically on the following grounds. wxyz (i) Violation of Section 42 (1) and (2) of the NDPS Act zyxw wxyz (ii) Violation of Section 50 of the NDPS Act zyxw wxyz (iii) Non-examination of independent witness zyxw wxyz (iv) Anomalies and irregularities in the search and seizure and maintaining the samples zyxw wxyz (v) Non-admissibility of the confessional statement recorded under Section 67 of the NDPS Act. zyxw wxyz POINT NO. 1. zyxw 6. Learned counsel for the appellants submitted that the secret report of information proved as Ext.1 did not bear any reference number nor did it mention any time of forwarding the information to the superior officer. It was also submitted that the authority letter (Ext.3) was issued after the search and seizure and as such the search was made by the PW-1 without authority. Therefore, contention of the learned counsel for the appellants was that the entire proceeding stood vitiated for non-compliance of Section 42 of the NDPS Act. In order to bolster the submission, learned counsel for the appellants relied on the following two decisions: wxyz ( Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, (2000) 2 SCC 513 ) zyxw wxyz ( State of W,B. & Ors. Vs. Babu Chakraborty, (2004) 12 SCC 201 ) zyxw 7. Pw-1, the seizing officer has deposed that upon receiving the secret information, he reduced the same in to writing, which has been proved as Ext. 1. He also deposed that the Ext. 1 information was forwarded to his senior officer, the Officiating Zonal Director, who in turn authorized him for search and seizure vide Ext. 2 (order) and Ext. 3 (authority letter). PW6, the Zonal Director, who has been senior officer of PW-1 also deposed that the secret information received by PW-1, and reduced to writing was forwarded to him and he authorized PW-1, vide the authorization order/letter Ext.2 & Ext.3 to conduct the search. PW-6 also proved the Ext.7, the copy of the secret information forwarded to him, which in turn was sent to the Director General of Narcotic Control Bureau. PW-6 also proved the Ext.7, the copy of the secret information forwarded to him, which in turn was sent to the Director General of Narcotic Control Bureau. Learned counsel for the appellants referring to Ext. 3, the authority letter, where it was mentioned that the house of Dipak Das, Janakpur, Kahilipara, Guwahati rented to Tiken Das and the evidence of PW 1, who stated that on reaching the place of occurrence, he came to know, that the house of Dipak Das was rented to Sri Tiken Das, submitted, that authority letter Ext.3 was not issued before the search and seizure and as such there was violation of Section 42 (1) of the NDPS Act, inasmuch as, the search was conducted after sunset and before sunrise without authority. The contention of the learned counsel for the appellants referring to Ext.3 was that when the NCB officials including the PW-6 did not know till reaching the place of search, that the house of Dipak Das was rented to Tiken Das, how it was mentioned in Ext.3. Thus, the statement in the Ext. 3 regarding the house of Dipak Das being rented out to Tiken Das was suggestive of the fact that Ext. 3 was issued after the search and seizure was made, submits learned counsel Mr. Dey. 8. It appears from the evidence of PW-1 & PW-6 and Ext. 2, that vide Ext. 2, office order, the PW-6 authorised the PW-1 (Santanu Aich) to act as a search and seizing officer followed by Ext. 3, the authority letter. PW-6, however, admitted in his evidence, that though, he signed the authority letter (Ext.3), it was not filled up by him, inasmuch as, the handwriting in the authority letter was not of his. Evidently, in the instant case, the search and seizure was made after sunset and before sunrise and no gazetted officer was present, inasmuch as, admittedly, PW-6, who happened to be the gazetted officer and senior to the PW-1, arrived the place of occurrence after the search and seizure was completed. The prosecution has proved two documents being Ext. 2 and Ext.3, whereby the PW-1 was authorize to conduct the search. PW-1 & PW-6 also deposed that PW-1 was authorized to conduct the search. The evidence of PW-6 & PW-1 and Ext. 2, the office order authorizing PW-1 for search and seizure was not challenged by defence. The prosecution has proved two documents being Ext. 2 and Ext.3, whereby the PW-1 was authorize to conduct the search. PW-1 & PW-6 also deposed that PW-1 was authorized to conduct the search. The evidence of PW-6 & PW-1 and Ext. 2, the office order authorizing PW-1 for search and seizure was not challenged by defence. The evidence of PW-1, however, shows that till reaching the place of search, they were not aware, that the house belonging to Dipak Das, was rented out to Tiken Das. Apparently, the Ext.3 was prepared in a printed format and the format of Ext. 3 was not filled up by PW-6, though, he put his signature on the printed format. Evidently, the office order (Ext.2) was also issued by PW-6, authorizing PW-1 to conduct the search. Therefore, though, Ext.3 authority letter with all detailed was issued, before issuing Ext.3, the Ext.2 was issued authorizing the PW-1 to conduct the search. Admittedly, the Ext.3 authority letter was issued by PW-6, who never stated that after completion of the search and seizure he learnt about the house of Dipak Das being rented out to Tiken Das. Therefore, the evidence of the PW-1 that he learnt on reaching the house of Dipak Das, that it was rented out to Tiken Das by itself does not render the Ext.3 a post search document, nor render the search and seizure made by PW-1 unauthorise, reason being that evidently the Ext.2 order was also issued authorizing the PW-1 to conduct the search, which remained unchallenged. This apart, when all the appellants were found with the narcotic inside the house, while they were weighing the same, the question who was the owner or tenant of the house became redundant, inasmuch as, both Dipak Das and Tiken Das were caught with the narcotic inside the house. The Ext. 2, order was followed by Ext. 3, where the details of the house was put by hand. When evidently, the information of the house being rented out to Tiken Das by Dipak Das was known to PW-1 before the search was conducted, the same information could be inserted in Ext.3 even before the search. It is also to be noted, as rightly observed by the learned trial court that Section 42 (1) does not provide any specific format for issuing authority. It is also to be noted, as rightly observed by the learned trial court that Section 42 (1) does not provide any specific format for issuing authority. Therefore, when the evidence on record both oral and documentary demonstrated that PW-1 was authorized to conduct the search, I find no substance in the submission of the learned counsel for the appellants, that the authority letter was issued after search and seizure was completed or the PW-1 did not have the authority to conduct the search. PW-1 & PW-6 have clearly stated that the information was reduced into writing, which has been proved as Ext. 1 and the same was forwarded to the PW-6, the superior officer, who also proved the Ext.7, the report forwarded to him. Therefore it cannot be said that the copy of secret information was not forwarded to PW6. The Ext. 7 shows that the information was received on 05.01.2013. The PW-6 also stated in his evidence that he received the information forwarded by PW-1 on the same day. The copy of the information sent to the Director General also demonstrated that it was received before 06.01.2013. 9. Section 42(2) of NDPS Act, provides that where an officer takes down any information in writing under sub-section (1) or records reasons for his belief under the proviso thereto, he shall within 72 hours, send a copy thereof to his immediate official superior. Thus, as per the requirement of Sub-section (2) of Section 42 of the NDPS Act, the information reduced to writing under Sub-section (1) of Section 42 of the NDPS Act, is required to be sent to the superior officer within 72 hours. In the instant case, it is apparent from the evidence of the PW-1 & PW-6 and also Ext.7 that secret information, reduced to writing was forwarded to PW6 within 72 hours and therefore, there was no lapse or violation on the part of the PW-1, in sending the report to his superior officer. The decisions in Abdul Rashid Ibrahim (supra) and State of W.B. & Ors. Vs. The decisions in Abdul Rashid Ibrahim (supra) and State of W.B. & Ors. Vs. Babu Chakraborty (supra) relied by the learned counsel for the appellants do not help the appellants in the facts and circumstances of the case, inasmuch as, in both the decisions the secret information received by the officer was not reduced to writing, which was a clear violation of the provision of Sub-section (2) of Section 42 of the NDPS Act, which is not the case in hand. In the present case, evidently, the information was reduced to writing and the same was also forwarded to the superior officer within the stipulated time as provided in Section 42(2) of the NDPS Act and therefore, we find no force in the submission of the learned counsel for the appellants, that there was violation of the provision of Section 42 of the NDPS Act. Hence the point No. 1 decided against the appellants. wxyz POINT NO. 2 zyxw 10. The second submission of the learned counsel for the appellants was that there was violation of the provision of Section 50 of the NDPS Act. Evidently, the contraband articles seized in the instant case was a huge quantity of 123.4 kg of ganja, which were carried in 32 bags by two vehicles. It is also evident that during the personal search of the appellants no contraband was recovered. The huge quantity of ganja being 123.4 kg, which were carried by the appellants in two vehicles contained in 32 bags and the appellants were caught when they were weighing the same also makes it abundantly clear, that such article was not recovered from the body of the appellants. Though, NCB officers conducted the personal search, when admittedly no narcotic was seized from the body of the appellants and the huge quantity of narcotic was seized, which were in 32 bags carried in two vehicles by the appellants, there was no requirement of compliance with the Section 50 of the NDPS Act. Admittedly, from the body search, the articles recovered were innocuous being, mobile phones, identity cards, driving license, documents of the vehicles etc. Admittedly, from the body search, the articles recovered were innocuous being, mobile phones, identity cards, driving license, documents of the vehicles etc. and as such even it is assumed for the sake of argument, that there was some violation of Section 50 of the NDPS Act while conducting the personal body search that would not affect the prosecution in the instant case, inasmuch as, the seizure of 123.4 kg of ganja was not the consequence of personal body search. In this regard, observation of the Apex Court in Jarnail Singh Vs. State of Punjab, (2011) AIR SC 964 may be referred to, where the Apex Court held that Section 50 of the NDPS Act can be invoked only where the drug (narcotic/NDPS substance) is recovered as a consequence of the body search of the accused. In case the recovery of narcotic is made from a container being carried by individual the provision of Section 50 NDPS Act would not be attracted. Thus, point No. 2 also decided against the appellants. wxyz POINT NO. 3. zyxw 11. Pw-1 stated in his evidence that on the basis of secret information forwarded to his superior officer (PW-6), a team was constituted and he was authorized to conduct the search and seizure and accordingly, he along with the team reached the place at Nalapara. While looking for the vehicle mentioned in the secret information, they have spotted the vehicles bearing registration No. No. AS-01-R/9175 and AS-01-AW/7900 and followed the vehicle to the residence of Dipak Das, where they met two persons of the same locality, who agreed to be witness to the search and seizure and in presence of the said two witnesses, the search and seizure was made and the sample was collected, wherein also the independent witnesses put their signatures. PW-1 further deposed that he prepared the inventory in 13 pages, which has been proved as Ext. 19. He further stated that Ext. 19 contained the signature of the independent witnesses as well as the appellants. PW-2, PW-7 & PW-8, who were also part of the NCB team have corroborated the evidence of PW-1, as regards search and seizure in presence of the two independent witnesses. 19. He further stated that Ext. 19 contained the signature of the independent witnesses as well as the appellants. PW-2, PW-7 & PW-8, who were also part of the NCB team have corroborated the evidence of PW-1, as regards search and seizure in presence of the two independent witnesses. The accused Tiken Das, during examination under Section 313 CrPC also admitted the presence of the independent witnesses and stated that the two witnesses, were there at the place of seizure and they were also known to him by their face, though he did not know their names. Therefore, the presence of independent witnesses, as deposed by PW-1, PW-2, PW-6, PW-7 & PW-8 is found to be reinforced by the admission of the accused Tiken Das during his examination under Section 313 CrPC. However, these two witnesses were not examined. PW-5, the Deputy Director of the Forensic Science Laboratory also stated in his evidence, that having received the packets consisted of 32 exhibits in sealed bags and the facsimile of the sample was found to be of Narcotic Control Bureau *1*, which was renumbered by him as DN-12/2013 (a1) to DN-12/2013 (a32) respectively. He further stated, that examination of the sample gave positive test for ''ganja''. There was no cross examination of this witness as to whether the sealed sample received by him did not contain the signature of the accused or the witnesses. It was also in the evidence that summons were issued to the independent witnesses, but the witnesses did not turn up. Evidently, the two independent witnesses were residing in the same building and known to the appellants, therefore, it is not difficult to understand, that both the independent witnesses though initially agreed to witness to the search and seizure, they might be reluctant to depose in court in order to avoid any animosity with the appellants living in the same place. The fact remained is that the presence of the two independent witnesses was not in dispute. However, the PW-1 has categorically deposed that he put his signature on the sample and seizure list and also took the signatures of the independent witnesses and the appellants. There is no material on record to show that PW-1 had any animosity with the appellant. However, the PW-1 has categorically deposed that he put his signature on the sample and seizure list and also took the signatures of the independent witnesses and the appellants. There is no material on record to show that PW-1 had any animosity with the appellant. Therefore, the PW-1 being a public officer having conducted the search and seizure as per law, there was rather a presumption in favour of genuineness of his official act under Section 114, illustration (e) of the Evidence Act. The Apex Court in Surinder Kumar Vs. State of Punjab,2020 0 Supreme 1 (SC) observed that the mere fact that case of the prosecution is based on evidence of official witnesses, does not mean that same should not be believed. The Apex Court held as under: wxyz "14. Further, it is contended by learned senior counsel appearing for the appellant that no independent witness was examined, despite the fact they were available. In this regard, it is to be noticed from the depositions of Devi Lal, Head Constable (PW-1), during the course of cross- examination, has stated that efforts were made to join independent witnesses, but none were available. The mere fact that the case of the prosecution is based on the evidence of official witnesses, does not mean that same should not be believed. zyxw wxyz 15. The judgment in the case of Jarnail Singh v. State of Punjab4, relied on by the counsel for the respondent-State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status. In the case of State, Govt. of NCT of Delhi v. Sunil & Anr, (2001) 1 SCC 652 it was held as under: zyxw wxyz "It is an archaic notion that actions of the Police Officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Courts cannot start with the presumption that the police records are untrustworthy. AS a presumption of law, the presumption would be the other way round. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Courts cannot start with the presumption that the police records are untrustworthy. AS a presumption of law, the presumption would be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature". zyxw 12. In State of Himachal Pradesh Vs. Pradeep Kumar & Ors, (2018) 13 SCC 808 , the Apex Court held that so far as examination of independent witnesses in support of prosecution case is concerned, all that would be necessary to say in this regard is that examination of independent witnesses is not an indispensable requirement and such nonexamination is not necessarily fatal to the prosecution case. In the present case, PW-1 has categorically stated that the two persons, who were found near the place of occurrence agreed to be witness and they were also present throughout the process of search and seizure and taking sample etc. Ext.19, the inventory also shows that the independent witnesses were present, in fact, presence of independent witnesses has also been admitted by the accused/appellant Tiken Ds in his examination under Section 313 CrPC. It is also evident as indicated above, that both the independent witnesses were resident of the same vicinity, where the accused/appellants also resides. Apparently they were reluctant to come to court, inasmuch as, inspite of issuance of summons, they did not appear to depose in court and their reluctance to depose in court is quite understandable. When all the facts and circumstances including the evidence, both oral and documentary clearly demonstrated that independent witnesses were present, non-examination of the individual witness in the facts and circumstances of the present case would not be fatal for the prosecution, more particularly, when despite endeavor, their presence could not be procured. Therefore, in my considered view, in the facts and circumstances of the case, non-examination of independent witness would be of no consequence. Thus, the point is decided against the appellants. wxyz POINT NO. 4. zyxw 13. Therefore, in my considered view, in the facts and circumstances of the case, non-examination of independent witness would be of no consequence. Thus, the point is decided against the appellants. wxyz POINT NO. 4. zyxw 13. Learned counsel for the appellants submitted referring to the evidence of PW-1 during cross examination, that between the time the samples were drawn and delivered to the FSL, the samples were kept in the custody of PW-1 and not deposited in the custody of nearest police station as per requirement of Section 52(a) as well as Section 53 of the NDPS Act. The contention of the learned counsel for the appellant was that when the samples were not kept in safe custody and was kept in possession of the PW-1, who also had the custody of brass seal used in the sample, a doubt is created as to whether the samples sent to the forensic laboratory were really the samples collected from the narcotic seized from the appellants. It was also contended referring to Ext. 14, Ext.15 & Ext. 18 being godown receipts, that there were discrepancies in the godown receipts. Learned counsel further contended that as per the Ext. 17 the samples were received by the FSL on 08.01.2013 and there is no material to show, as to where the samples were kept after taking out of the godown on 07.01.2013 till delivered it to the FSL on 08.01.2013. Ext. 14 shows that the samples were deposited in the godown at 5 hours on 06.01.2013. Ext. 15 shows that the same were taken out from the godown for the purpose of producing before court on 07.01.2013. Ext. 18 shows that the samples were deposited again in the godown on 07.01.2013 at about 19 hours. Ext. 16 transpires that the samples were dispatched on 07.01.2013, whereas Ext. 17 reveals that the samples were received in the FSL on 08.01.2013. Referring to these two documents, learned counsel for the appellants submitted, that the prosecution has failed to offer any explanation as to when the samples were taken away for sending to FSL or where the samples were kept in between the time of taking out from the godown and depositing with the FSL. It is no doubt true that Ext. 16, the test memo for sending the sample to FSL was issued on 07.01.2013 and Ext. It is no doubt true that Ext. 16, the test memo for sending the sample to FSL was issued on 07.01.2013 and Ext. 17 shows that it was received by FSL on 08.01.2013. The Ext. 18, shows that the samples were deposited in the godown after production in court, at 7 PM on 07.01.2013. Therefore, the date shown in Ext. 16 as 07.01.2013 might be a typographical error or it might be prepared on the evening of 07.01.2013, inasmuch as, evidently, at 7 PM on 07.01.2013 the samples were deposited in the godown after production before court. Therefore, the above anomalies cannot create any doubt as to the genuineness of the samples in view of the unshaken evidence of PW-5, who has clearly deposed that the samples were found in sealed condition with facsimile and no evidence was brought on record that there was any manipulation in the samples. 14. Another point raised by the learned counsels that there was discrepancy between the evidence of the PW-1 and the Ext.16 (test memo) regarding the weight of the sample. The PW-1 deposed that he took samples of 24 grams each whereas in Ext.16 (test memo) weight of the sample has been mentioned as 25 grams each. As per the standing order No. 1/89 of the Government dated 13.06.1989, the quantity of each sample in case of ganja shall not be less the 24 grams. The PW-1 clearly stated that he took each sample weighing 24 grams and such evidence was not challenged. Therefore, mentioning 25 grams in the Ext. 16 can be attributed to typographical error, inasmuch as, there is no material on record to show that the samples were again weighed at the time of preparing the Ext.16. Even if it is assumed for the sake of argument, that the samples were weighed before sending to FSL vide Ext. 16, such weight shall also contain the weight of the envelope or the container, wherein the samples were sealed. Be that as it may, when evidently, sample taken was not less than 24 grams, the anomalies as pointed out by the learned counsel cannot be considered to be of any consequence, reason being that quantity of sample being as per standard fixed by the Government there was no question of prejudice to the appellant. This apart, appellants also has not stated that they were prejudiced. This apart, appellants also has not stated that they were prejudiced. In view of what has been discussed hereinbefore, this point is also decided against the appellants. wxyz POINT NO. 5. zyxw 15. The learned counsel for the appellants submitted that the conviction was solely based on confessional statement of the appellants recorded under Section 67 of the NDPS Act. It was also contended that no independent witness was present at the time of recording the confessional statement under Section 67 NDPS Act and as such voluntariness of the confession was impaired. It was contended by the learned counsel for the appellants that the confessional statements were not read over and explained to the appellants. To support the submission, that the accused cannot be convicted on the basis of the confessional statement, the learned counsel placed reliance on a decision of the Apex Court in Surinder Kumar Khanna Vs. Intelligence Officer, Directorate of Revenue Intelligence, (2018) 8 SCC 271 , where the Apex Court held that conviction of the accused on the basis of the confessional statement of a co-accused in absence of other evidence suggesting involvement of the accused is bad. There is no quarrel about the legal proposition that confession of coaccused is a weak piece of evidence and no conviction can be passed on the sole basis of the confessional statement of the co-accused, unless there is other independent evidence to substantiate the charges. In the instant case, the confessional statement of all the accused persons were recorded under Section 67 NDPS Act, and as such, this is not the case of conviction of all the accused on the sole basis of confessional statement of the co-accused. The evidence of PW-1, PW-2, PW-5, PW-6, PW-7 & PW-8 clearly established that the ganja of commercial quantity was seized from the possession of all the accused persons while they were weighing the same in a closed room after having brought the same from another place by two vehicles. It is not the case, that the conviction was based solely on the confessional statement of the co-accused. It is not the case, that the conviction was based solely on the confessional statement of the co-accused. Rather, what we find is that even dehors the statement recorded under Section 67 of the NDPS Act, the charges were proved against the appellants and in that view of the matter, the statement recorded under Section 67 of the NDPS Act, in the present case was only an additional material supporting the prosecution. Learned counsel for the appellant further submitted placing reliance on Surendra Kr. Khanna (supra) that the confession made under Section 67 of the NDPS Act is not admissible. The Apex Court in Kanhaiyalal Vs. Union of India, (2008) 4 SCC 668 , held as under: wxyz "45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case, (1990) 2 SCC 409 with which we agree, that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a "police officer" within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the NDPS Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act." zyxw 16. Although, the above proposition, that the 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 police officer has been doubted in Surinder Kumar Khanna (supra) and the issue has been referred to a larger bench, unless a decision is rendered by the larger bench, the existing legal position as laid down in Kanhaiyalal (supra) shall hold the field. Be that as it may, since this is not a case of confession of a coaccused nor a case solely based on confessional statement, the only question to be considered is whether the confessional statement recorded under Section 67 was voluntary or not. Be that as it may, since this is not a case of confession of a coaccused nor a case solely based on confessional statement, the only question to be considered is whether the confessional statement recorded under Section 67 was voluntary or not. Apparently, the confessional statement was recorded under Section 67 of the NDPS Act as back as in the year 2013, copy of which was also furnished to the appellants. Objection that the confession was extracted by coercion was apparently raised at a belated stage. Though the appellant had the opportunity to raise objection against the statement recorded under Section 67, no such objection was raised earlier. It is the common knowledge that always the accused had a tendency to retract almost all confession at a later stage. Except the evidence of PW-9, that his statement was recorded twice and he was forced by NCB to make the statement, there was no cogent material on record to show that the confessions of the appellants were extracted by coercion. Admittedly, PW-9 was not an accused in the instant case and therefore, there could be no reason to force him to make statement as witness. When the accused never raised any objection that the confession was extracted by coercion inspite of having ample opportunity, the belated retraction, cannot affect the credibility of the confession, which was recorded under Section 67 of the NDPS Act and as such in our considered opinion, learned trial court rightly rejected the argument against the confession recorded under Section 67 of the NDPS Act, when raised before the trial court. This apart, it is not a case where the conviction was solely on the basis of confessional statement recorded under Section 67 of the NDPS Act. As indicated above, the prosecution clearly established by oral and documentary evidence that the contraband (ganja) of commercial quantity was seized from the possession of the accused/appellants, while they were weighing the same in a closed room, and the confessional statement was only an additional piece of evidence to support the other evidence brought on record and as such, we find no substance in the submission of the learned counsel for the appellants that the conviction was recorded solely on the basis of confessional statement. Accordingly, the 5th point is also decided against the appellants. 17. Accordingly, the 5th point is also decided against the appellants. 17. In view of the above facts and circumstances, when the prosecution has clearly established that all the five accused persons were found in possession of the ''ganja'' of commercial quantity, while they were weighing the same in a closed room, which was seized by complying all necessary formalities under the statute, we find no reason to differ with the conclusion drawn by the learned trial court to record conviction and award the sentence to the appellants in the instant case. Accordingly, all the appeals are found to be devoid of merit and stand dismissed. 18. Send down the LCR.