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2023 DIGILAW 258 (JK)

Mohammad Ayoub Wani v. State Of J. & K.

2023-07-11

SANJAY DHAR

body2023
JUDGMENT : 1. Appellant, Mohammad Ayoub Wani, has challenged judgement dated 27.01.2014, passed by learned Principal Sessions Judge, Srinagar, whereby appellant along with other co-accused has been convicted for offences under Section 20/28/29 of the NDPS Act. Challenge has also been thrown to order dated 13.02.2014 passed by learned Sessions Judge, whereby appellant, in proof of aforesaid offences, has been sentenced to under a rigorous imprisonment for a period of two years and to pay a fine of Rs.20,000/. In default of payment of fine, the appellant has been directed to undergo simple imprisonment for a further period of three months. 2. Briefly stated, the case of the prosecution is that on 22.02.2008, the police of Police Station, CIK, Srinagar, received an information from reliable sources that the appellant along with co-accused Mohammad Shakoor Khatana, Mohammad Imran Bhat and Feroz Ahmad Lone, under a well-knit conspiracy, are in the process of smuggling a huge quantity of Charas which they have concealed in the body of the vehicle (Tavera) bearing registration No.MH02N-7852 to some place out of State. As per the information, the Charas was proposed to be smuggled by the appellant and the co-accused to Ahmadabad, Mumbai etc. and the money that would be received in this connection would be used in militant activities. On the basis of this information, FIR No.03/2008 for offences under Section 20/28/29 of NDPS Act was registered with Police Station, CIK, Srinagar, and investigation of the case was entrusted to PW-10, DSP Sajad Hussain. 3. The Investigating Officer along with other officials of the police proceeded to Pantha Chowk and laid a Naka overthere. They intercepted a vehicle bearing No. MH02N-7852, which, at the relevant time, was being driven by accused Feroz Ahmad Lone and accused Mohammad Imran was also travelling in the said vehicle. Upon questioning, the aforenamed two accused denied presence of charas in the vehicle but after sustained interrogation, they disclosed that the charas has been concealed inside the body of the vehicle. The two accused claimed that they are only carriers of the contraband and, in fact, the same belonged to appellant and co-accused Mohamed Shakoor Khatana. Upon questioning, the aforenamed two accused denied presence of charas in the vehicle but after sustained interrogation, they disclosed that the charas has been concealed inside the body of the vehicle. The two accused claimed that they are only carriers of the contraband and, in fact, the same belonged to appellant and co-accused Mohamed Shakoor Khatana. The vehicle was taken to CIK office Batamaloo whereafter the appellant and co-accused Mohammad Shakoor Khatana were arrested from Sumbal and brought to CIK headquarters, where co-accused Mohamed Shakoor in presence of the Executive Magistrate recovered 11 packets of charas that was lying concealed inside the body of the vehicle. After investigation of the case, offences under Section 20/28/29 of NDPS Act were found established against the appellant and the co-accused and the chargesheet was laid before the trial court. 4. On 03.05.2008, the appellant and the co-accused were charged for offences under Section 20/28/29 of the NDPS Act and their pleas were recorded. The appellant and the co-accused denied the charges and claimed to be tried. Prior to that, on 29.04.2008, accused Mohammad Imran was declared as juvenile and a direction was issued for presentation of a separate challan against the said accused before the appropriate forum. 5. The prosecution, in order to prove charges against the appellant and co-accused produced ten witnesses, namely, PWs Nazir Ahmad Bhat, Sareer Ahmad, Constable Firdous Ahmad, Sarfaraz Ahmad Khan, Imran Qureshi, Bashir Ahmad Balkhi, Lateef Ahmad Kakroo, Shakeel Ahmad Wani, Bilal Ahmad Najar and DSP Sajad Hussain. 6. After completion of the prosecution evidence, the incriminating circumstances appearing in the prosecution evidence were put to the appellant and the co-accused and their statements under Section 342 of the J&K Cr P. C were recorded. Appellant Mohammad Ayoub Wani while making his statement denied his connection with the alleged transportation of the charas. He stated that he had not concealed the charas inside the vehicle in question nor he had engaged the said vehicle for transportation of the charas. He further submitted that the charas was not recovered on the basis of his disclosure. The appellant also stated that he was unnecessarily arrested and that there is no evidence showing his complicity. He claimed that the prosecution witnesses have deposed falsehood against him. The appellant did not lead any evidence in defence. 7. He further submitted that the charas was not recovered on the basis of his disclosure. The appellant also stated that he was unnecessarily arrested and that there is no evidence showing his complicity. He claimed that the prosecution witnesses have deposed falsehood against him. The appellant did not lead any evidence in defence. 7. The learned trial court, after hearing the parties and after appreciating the evidence on record, came to the conclusion that the recovery of charas from the vehicle in question has been established and that connection of the appellant and co-accused with the transportation of the charas has also been established from the evidence on record. On this basis, the learned trial court convicted all the accused including the appellant herein for offences under Section 20/28/29 of NDPS Act. 8. Appellant Mohammad Ayoub has raised a number of pleas in his appeal for challenging the impugned judgment of conviction and the order of sentence but during the course of arguments, learned counsel appearing for the appellant has laid emphasis on the ground that the appellant has been convicted on the basis of inadmissible evidence, inasmuch as he has been connected to the alleged crime on the basis of alleged confessional statement made by co-accused Feroz Ahmad Lone and Mohammad Imran Bhat. It has been urged that confessional statement of a person made before a police officer while being under arrest is not admissible in evidence and the learned trial court has grossly erred in relying upon the alleged confessional statement of the co-accused to implicate the appellant. 9. Learned counsel appearing for the respondent State has contended that the charas has been recovered on the basis of the disclosure statements made by the co-accused and, as such, their confessional statements cannot be brushed aside. He has also submitted that the confessional statements have been made by the co-accused in the presence of Executive Magistrate, as such, the same are admissible in evidence. The learned counsel for State has relied upon the judgment of the Supreme Court in the case of Mohan Lal vs. State of Rajasthan, (2015) 6 SCC 222 and the judgments of the Gauhati High Court in the case of Moirangthem Tomba Singh vs. State of Manipur, 1984 CriLJ 536, and Danti Ram Reang vs. State of Tripura, 2010 CriLJ 4499. 10. 10. I have heard learned counsel for the parties and perused the grounds of appeal, the impugned judgment and the trial court record including the evidence led by the parties during the trial of the case. 11. As already noted, the only ground raised by the appellant for challenging the impugned judgment is that he has been convicted on the basis of inadmissible evidence, inasmuch as the learned trial court has recorded finding of guilt against the appellant on the basis of confessional statements of the co-accused. In order to ascertain the veracity of this contention of the appellant, it would be apt to refer to the relevant excerpts of the impugned judgment, which relate to recording of finding of guilt against the appellant. The same are reproduced as under: “The acquittal of accused No.4 Mohammad Ayoub has also been sought on the ground that statement of any co-accused cannot be read against the said accused in view of Section 67 of NDPS Act and in this regard has relied upon 2001 Criminal Law Journal 3187, wherein their lordships of the Andhra Pradesh High Court have held that statement of accused recorded by official referred to in Section 42 cannot be used as evidence for prosecution in the form of confession. As per his argument, the said accused namely Mohammad Ayoub has not been connected by the prosecution with the commission of any offence punishable under NDPS Act, but the statement of Investigating Officer and that of the other witnesses cannot be brushed aside for the reason that on the one hand when the vehicle in question was intercepted by police station, Pantha Chowk, the two accused namely, Feroz and Imran who were traveled in the said vehicle have in categorical terms named the other accused which include the accused Ayoub and the Investigating Officer, Sajad Hussain, Dy. SP, has further stated in his deposition that accused Ayoub disclosed before him that the vehicle belonged to him at later stage disclosed before the Investigating Officer that both the charas and vehicle belonged to the said accused. SP, has further stated in his deposition that accused Ayoub disclosed before him that the vehicle belonged to him at later stage disclosed before the Investigating Officer that both the charas and vehicle belonged to the said accused. Therefore, once the Investigating Officer has in categoric terms deposed before this Court that accused Ayoub told him that charas and vehicle belonged to him, the argument of the learned counsel for the accused in so far as Section 67 of the NDPS Act appears to be devoid of any legal force, as such, not sustainable. However, admittedly the disclosures of either of the accused have not been reduced in writing, but that would not effect the prosecution case and the conviction of an accused in my opinion can be bashed on the statement of the Investigating Officer as well. 12. From the afore-quoted observations of the trial court, it is clear that the court has relied upon the statement of the Investigating Officer and other witnesses to the effect that the co-accused Feroz Ahmad Lone and Imran Hussain Bhat, who were travelling in the vehicle in question, have in categorical terms named other co-accused including the appellant. It has been further observed that Investigating Officer, PW Sajad Hussain, has deposed that the appellant has disclosed before him that the vehicle belonged to him and that he had admitted that the vehicle as well as the charas belonged to him. So, in-effect, the learned trial court has convicted the appellant on the basis of the confessional statements made by co-accused Feroz and Imran as also the confessional statement of the appellant which he is stated to have made before the Investigating Officer. 13. It is true that most of the prosecution witnesses, who happen to be the police officials, have stated that when the vehicle in question was intercepted, co-accused Feroz Ahmad Lone and Imran, upon questioning, disclosed that they were only carriers and that the charas belonged to appellant and co-accused Mohammad Shakoor Khatana. Investigating Officer, PW Sajad Hussain, has also stated that appellant Mohammad Ayoub, admitted before him that the vehicle in question belongs to him and that recovered charas belongs to him and the co-accused Mohammad Shakoor Khatana. Investigating Officer, PW Sajad Hussain, has also stated that appellant Mohammad Ayoub, admitted before him that the vehicle in question belongs to him and that recovered charas belongs to him and the co-accused Mohammad Shakoor Khatana. A perusal of the trial court record shows that excepting the statements of the police officials including the Investigating Officer, that co-accused Feroz Ahmad and Imran admitted before them that the charas belonged to appellant Mohammad Ayoub and co-accused Shakoor and that appellant himself admitted before the Investigating Officer that he is owner of the vehicle as well as of the recovered charas, there is no other material on record to connect the appellant with the alleged crime. In fact, the learned trial court has made these confessional statements of co-accused and appellant Mohammad Ayoub basis for recording finding of guilt and conviction against him. 14. The question arises as to whether the confessional statements of co-accused and the confessional statement of the appellant made before a police officer are admissible in evidence. In this regard, it would be apt to notice the provisions contained in Section 25 of the Evidence Act, which reads as under: 25. Confession to police-officer not to be proved.–– No confession made to a police-officer, shall be proved as against a person accused of any offence. 15. From a bare perusal of aforesaid provision, it is clear that a confessional statement made to a police officer is inadmissible in evidence. Therefore, the statements of co-accused Feroz Ahmad and Imran made before the police officer that they were carrying charas on behalf of the appellant, are not admissible in evidence. Similarly, the statement of the appellant made to the Investigation Officer that he is owner of the vehicle that was seized along with charas and that he was co-owner of the recovered charas is also not admissible in evidence. 16. Even if we treat the statements of the co-accused and the statement of the appellant made before the police officers as statements made under Section 67 of the NDPS Act, still then the same are inadmissible in evidence in view of the law laid down by the Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1 . In the said case, the Supreme Court has observed that a confession made to any police officer of whatever rank cannot be relied upon against any person accused of any offence. While holding so, the Supreme Court relied upon its earlier judgment in the case of Agnoo Nagesia v. State of Bihar, AIR 1966 SC 119 , wherein it has been held that the terms of Section 25 are imperative. The Court further observed that a confession made to a police officer under any circumstances is not admissible in evidence against an accused. It covers a confession made when he was free and not in police custody as also a confession made before an Investigating Officer before any investigation has begun. It has been explained that the expression “accused of any offence” covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. 17. In view of the above legal position, it is beyond any cavil that the confessional statements made by co-accused Feroz Ahmad and Imran as also the confessional statement made by the appellant before the police officers, whether these statements were made by them before or after their arrest, are not admissible in evidence. 18. Learned counsel for the respondent-State has contended that so far as the confessional statement made by the appellant before the Investigating Officer is concerned, the same was made by him in presence of the Executive Magistrate, therefore, in view of the provisions contained in Section 26 of the Evidence Act, the same is admissible in evidence. The contention of the learned counsel is without any merit, firstly for the reason that the alleged confessional statement of the appellant has not been reduced into writing at all and secondly, as per the ratio laid down by this Court in the case of Rayees Ahmad Dar vs. UT of J&K (Bail App No.05/2022 decided on 21.05.2022), confessional statement of an accused while in custody made in presence of the Magistrate becomes admissible in evidence only if the same has been recorded in the manner as provided under Section 164 of the Cr. P. C. In the instant case the alleged confessional statement of the appellant has not been reduced into writing at all, not to speak of its recording in the manner as provided under Section 164 of the Cr. P. C. In the instant case the alleged confessional statement of the appellant has not been reduced into writing at all, not to speak of its recording in the manner as provided under Section 164 of the Cr. P. C. Therefore, the same is inadmissible in evidence. 19. Lastly, learned counsel for the respondent State has contended that recovery of charas has taken placed on the basis of the disclosure statements made by the accused, as such, the confessional statements of the appellant and co-accused are admissible in evidence in terms of Section 27 of the Evidence Act. 20. Before dealing with the aforesaid contention of learned counsel for the respondent State, it would be apt to refer to the provisions contained in Section 27 of the Evidence Act. It reads as under: 27. How much of information received from accused, may be proved. Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 21. From a perusal of the aforesaid provision, it is clear that the same is in the nature of an exception to the rule that confession before a police officer is inadmissible in evidence. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus, a confessional statement made by an accused in custody of police which leads to discovery of a fact is admissible in evidence. 22. Coming to the facts of the instant case, the Investigating Officer, PW-10 Sajad Hussain, DSP, has repeatedly stated in his deposition before the Court that the police was already knowing that the charas had been concealed inside the body of the vehicle. He has, in fact, clarified that as per his information, the contraband charas has not been recovered on the basis of any disclosure made by accused Feroz Ahmad Lone. He has, in fact, clarified that as per his information, the contraband charas has not been recovered on the basis of any disclosure made by accused Feroz Ahmad Lone. He has further stated that none of the accused made any disclosure as regards the charas as the same was already in the knowledge of the police. In the face of this evidence on record, even if the contention of learned counsel for the respondent State that it is not necessary to reduce into writing the disclosure statement of an accused, is accepted, still then it is amply clear from the evidence on record that, in fact, no disclosure was made by any of the accused including the appellant herein. If that is so, their confessional statements cannot be saved by the provisions contained in Section 27 of the Evidence Act. 23. From the foregoing analysis of the evidence on record in the light of the legal position on the subject, it is clear that there was no legally admissible evidence on record before the trial court to record a finding of guilt against the appellant. The observations and findings recorded by the learned trial court against the appellant are grossly perverse, to say the least. The same are not sustainable in law and deserve to be set aside. 24. Accordingly, the appeal is allowed and the impugned judgment of conviction and the order of sentence passed by the learned trial court, to the extent of the appellant herein, are set aside. 25. The trial court record along with a copy of this judgment be sent to the learned trial court.