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2023 DIGILAW 446 (HP)

State of H. P. v. Hom Singh @ Homi

2023-11-06

SATYEN VAIDYA, TARLOK SINGH CHAUHAN

body2023
JUDGMENT : Tarlok Singh Chauhan, J. Aggrieved by 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 (in short, “the NDPS Act”), the petitioner-State has filed the instant petition for grant of leave to appeal. 2 The parties do not dispute that the case as set out by the prosecution has correctly been enumerated by the learned Special Judge, therefore, the same is extracted as such from the judgment. “2. Briefly stated, the case of the prosecution is that H.C. Nek Ram (PW-18), constable Mahinder Singh (PW-1), constable Vivek Sen (PW-2), constable Pushap Raj and HHG Kapil Dev were on patrolling duty in a private vehicle bearing registration no. HP 32-A-3153 bei.ng driven by H.C. Nek Ram. They were sitting in the vehicle at 12:40 pm near the Bajaj showroom. The accused was coming towards Gutkar. When he reached the vehicle in which the police were sitting, he started walking briskly. H.C. Nek Ram opened the door of the vehicle and the accused started running. The po lice apprehended the accused. The accused fell on his knees and said that he should be pardoned as he has done some illegal act. He had a backpack (Ex. MO6) with him. The police became suspicious that the backpack was containing some illegal substance or forest produce. H.C. Nek Ram directed Constable Pushap Raj and HHG Kapil Dev to detain the accused. He asked the inmates of the vehicles passing the spot to become witnesses; however, they declined. H.C. Nek Ram called Krishan Bhanu, a local counsellor, who g told him that he was away to Mandi and would return in the evening. H.C. Nek Ram called Chanderesh Chandel (Pw-17) and requested him to become a witness. He agreed. H.C. Nek Ram directed Constable Vivek Sen to bring another witness. Constable Vivek Sen called Sanjay Kumar and requested him to become a witness. Chanderesh Chandel reached the spot in his vehicle bearing registration no. HP-33- D-6184. Sanjay Kumar reached the spot in the vehicle bearing registration no. HP 87-A-3007. The accused revealed his name as Chetan Parkash on inquiry. The police told the accused that a search of his backpack was to be conducted and he had a right to search the police party; however, the accused declined. H.C. Nek Ram searched the backpack. HP-33- D-6184. Sanjay Kumar reached the spot in the vehicle bearing registration no. HP 87-A-3007. The accused revealed his name as Chetan Parkash on inquiry. The police told the accused that a search of his backpack was to be conducted and he had a right to search the police party; however, the accused declined. 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 (Ex. MO3) some of which were wrapped with transparent polythene (Ex. MO4) and some were unwrapped. 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. The charas was put in the carry bag from which it was recovered and the carry bag was put in the backpack in the same manner in which it was recovered. H.C. Nek Ram handed over the backpack to Chandresh Chandel and started to prepare the parcel. However, it started raining. H.C. Nek Ram requested Chanderesh Chandel to name some place where the proceedings could be conducted. Chanderesh Chandel took them to Auto Hub opposite the Competent showroom. The police party, the accused and the witnesses reached Auto Hub. The charas was again weighed and its weight was found to be 1.500 kilograms. The charas was put in the carry bag and the g carry bag was put in a cloth parcel (Ex. MO1). The parcel was sealed with ten impressions of seal BLH O. The parcel was marked as "A". The backpack was put in another cloth parcel (Ex. MO5) and the parcel was sealed with thirteen impressions of seal BLH O. The parcel was marked as "B". Sample seal (Ex. P1/PW1) was taken on a separate piece of cloth. H.C. Nek Ram filled the relevant columns of the NCB-1 form in triplicate (Ex. P2/PW1). He obtained the seal impressions BLH O on the NCB- Mandiform and handed over the seal to Chanderesh Chandel after the use. Cloth parcels, sample seal and NCB-1 form were seized vide memo (Ex. P3/PW1). A copy of the seizure memo was supplied to the accused free of cost. H.C. Mahinder Singh took the photographs of the spot (Ex. P5/PW1 to Ex. P36/PW1). H.C. Nek Ram prepared a rukka (Ex. Cloth parcels, sample seal and NCB-1 form were seized vide memo (Ex. P3/PW1). A copy of the seizure memo was supplied to the accused free of cost. H.C. Mahinder Singh took the photographs of the spot (Ex. P5/PW1 to Ex. P36/PW1). H.C. Nek Ram prepared a rukka (Ex. P4/PW1) and handed it over to constable Mahinder with directions to carry it to the police station Balh for the registration of the FIR. H..C. Nek Ram informed the police station Balh telephonically about the recovery of the charas and requested that the second 1.0. be sent to the spot for carrying out the investigation. Constable Mahinder handed over the rukka to SI Nokh Ram (PW-13) who got the FIR (Ex. P57/PW13) recorded. H.C. Manoj Kumar w as directed to visit Gutkar for carrying out the investigation. H.C. Nek Ram handed over the parcels, NCB-1 form in triplicate, accused to Manoj Kumar vide memo (Ex. P37/PW2). H.C. Manoj Kumar prepared a site plan (Ex. P66/PW-19) and recorded the statements of the witnesses as per their version. He produced one cloth parcel sealed with ten impressions of seal BLH O, NCB-1 form in triplicate, sample seal and accused before SI Nokh Ram (PW-13). S.I. Nokh Ram resealed the parcel with seven impressions of seal BLH g CA. He filled columns no. 9 to 11 of the NCB-1 form in triplicate and put the seal impression on the form. He obtained the sample seal (Ex. P58/PW13) on a separate piece of cloth and handed over the parcels, NCB-1 form in triplicate, sample seals BLH O and BLH CA to MHC Dinesh Kumar on 02-05-2021 at 12:09 am. H.C. Manoj Kumar handed over the cloth parcel (Ex. MO5) to HC Dinesh Kumar. H.C. Dinesh Kumar made an entry at Sr. No. 1037 of the Malkhana register (Ex. P46/PW7) and deposited the parcel in the malkhana. He handed over the parcel to H.C. Manoj Kumar on 03-05-2021 for getting the inventory certified. H.C. Manoj Kumar filed an application (Ex. P68/PW19) for getting the inventory certified. The court passed an order (Ex. P69/PW19) and obtained two samples out of bulk. The court also issued a certificate (Ex. P70/PW19). Photographs of the inventory proceedings (Ex. P71/PW19 to Ex. P78/PW19) were taken. The sample seal (Ex. P79/PW19) was taken on a separate p.iece of cloth. Sample parcels were marked as S1 and S2. The court passed an order (Ex. P69/PW19) and obtained two samples out of bulk. The court also issued a certificate (Ex. P70/PW19). Photographs of the inventory proceedings (Ex. P71/PW19 to Ex. P78/PW19) were taken. The sample seal (Ex. P79/PW19) was taken on a separate p.iece of cloth. Sample parcels were marked as S1 and S2. H.C. Manoj Kumar handed over the bulk parcel (Ex. MO1) sealed with three additional seals of ACJM MDI, two sealed parcels marked as S1 and S2 (Ex. MO9 and Ex. MO10), a copy of the order and sample seals of ACJM MDI to H.C Dinesh Kumar (PW-7) who dep osited all the articles in malkhana. H.C. Manoj Kumar prepared a special report (Ex. P50/PW8) and handed it over to Constable Ramesh Kumar with a direction to carry it to Dy.S.P. (Leave reserve). Constable Ramesh Kumar handed over the special report to Anil Patial Dy.S.P. (Leave reserve) in his office on 03-05-2021 at 10:20 am. Anil Patial handed over the special report to his reader H.C. Roshan Lal (PW-8) on 03-05-2021 at 10:30 am. H.C. Roshan Lal made an entry at Sr. No. 53 of the special report register (Ex. P51/PW8) and retained the special report on record. H.C. Dinesh Kumar handed over the parcel marked as S1 sealed with seven impressions of ACJM MDI, sample seal ACJM MDI, form NCB-1 in triplicate, order of the Court and docket to constable Braham Dass (PW-10) with a direction to carry them to FSL Junga vide R.C. No. 142/21 (Ex.P47/PW7). Constable Braham Dass deposited all the articles in a safe condition at FSL Junga and handed over the receipt to HC Dinesh Kumar on his return. One mobile phone (Ex. MOS) was found in possession of the accused Chetan Parkash. H.C. Manoj Kumar analysed the mobile phone and found that the accused was talking to Hom Singh and his location and the location of Hom Singh was found in village Thanach. Accused Chetan Parkash revealed on enquiry that he had purchased the charas from Hom Singh. H.C. Manoj Kumar took accused Chetan Parkash to village Thanach where he identified the place of the purchase. H.C. Manoj Kumar prepared the .site plan (Ex. P80/PW19) and took the photographs (Ex. P81/PW19 to Ex. P85/PW19). Accused Chetan Parkash revealed on enquiry that he had purchased the charas from Hom Singh. H.C. Manoj Kumar took accused Chetan Parkash to village Thanach where he identified the place of the purchase. H.C. Manoj Kumar prepared the .site plan (Ex. P80/PW19) and took the photographs (Ex. P81/PW19 to Ex. P85/PW19). The police also interrogated the accused Chetan Parkash and Hom Singh in the presence of each other and they confirmed the sale and purchase of the charas. H.C. Manoj Kumar took the accused Chetan Parkash to his home and prepared a site plan (Ex. P86/PW19). H.C. Manoj Kumar put the mobile phone in a cloth parcel and sealed it with eight impressions of seal BLH AS. The sample seal (Ex. P39/PW3) was taken on a separate piece of cloth. The mobile phone was seized vide memo (Ex. P40/PW3). H.C. Manoj Kumar filed an application (Ex. P60/PW15) for obtaining the call detail record and customer application form of mobile number 8278895144. Arun Mishra (PW-15) issued the customer application form (Ex. P61/PW15) and the call detail record g (Ex. P62/PW15). He also issued a certificate (Ex.P63/PW15) under Section 65B of the Indian Evidence Act. Mobile phone number 9459598679 was found to be registered in the name of Indira (PW-11) who revealed on inquiry that she had misplaced the SIM. Police filed an application (Ex. P52/PW12) for obtaining the customer application form and call detail record of mobile no. 9459598679. Rajni Sehgal (PW-12) issued a copy of the customer application form (Ex. P53/PW12), copy of aadhar card (Ex. P54/PW12), call detail record (Ex. P55/PW12) and certificate under Section 65B of Indian Evidence Act (Ex. P56/PW12). H.C. Narottam (PW-16) brought the cloth parca and the result of analysis (Ex. P48/PW7) and handed them over to MHC Dinesh Kumar. Dinesh Kumar deposited the parcel in malkhana and handed over the result to the I.O. As per the result of analysis (Ex. P48/PW7), the exhibit was an extract of cannabis and a sample of charas, which contained 29.56% .w/w resin in it. The copies of the Malkhana register, R.C., special report, and special report register were obtained. Statements of the remaining witnesses were recorded as per their versions. After the completion of the investigation, a challan was prepared and presented before the Court. 3. The copies of the Malkhana register, R.C., special report, and special report register were obtained. Statements of the remaining witnesses were recorded as per their versions. After the completion of the investigation, a challan was prepared and presented before the Court. 3. The accused Cheta n Parkash was charged with the commission of an offence punishable under Section 20 (b) (ii) (C) of the ND&PS Act and the accused Hom Singh was charged with the commission of an offence punishable under Section 29 of ND&PS Act. They pleaded not guilty and claimed to be tried. 4. The prosecution examined 19 witnesses to prove its case. Constable Mahinder (PW-1) and Constable Vivek Sen (PW-2) are the official witnesses to the recovery. H.C. Thakur Dass (PW-3) is the witness to the recovery of the g mobile phone. LHHC Promila (PW-4), LHHC Geeta (PW-5) and H.C. Manoj Kumar (PW-6) proved the entries in the daily diary. H.C. Dinesh Kumar (PW-7) was posted as MHC with whom the case property was deposited. HC Roshan Lal (PW-8) was posted as a reader to Dy.S.P. (Leave reserve) to whom the special report was handed over. HHC Ramesh Kumar (PW-9) carried the special report to Anil Patial. Constable Brahm Dass (PW-10) carried the case property to FSL for analysis. Indira (PW- 11) was the owner of the SIM who had lost the same. Rajni Sehgal (PW-12) issued the customer application form and call detail record of the mobile number 9459598679. S.I. Nokh Ram (PW13) was officiating as an S.H.O. who signed the FIR and resealed the case property. ASI Jai Kishan (PW-14) conducted the investigations partly. Arun Mishra (PW-15) issued the call detail record and customer application form of mobile number 8278895144. H.C. Narottam Ram (PW-16) brought the case property and the result of the analysis from FSL. Chandresh Chandel (PW- 17) is an independent witness who has not supported the prosecution case. H.C. Nek Ram (PW-18) effected the recovery. investigations. ASI Manoj (PW-19) conducted the investigations. 5. The accused in their statements recorded under Section 313 Cr.P.C. denied the prosecution case in its entirety. Accused Chetan Parkash stated that he was going to Sundernagar on a bus. The police stopped the bus at some distance from Gutkar. He was taken out of the bus and made to sit in the vehicle. He was falsely implicated. 5. The accused in their statements recorded under Section 313 Cr.P.C. denied the prosecution case in its entirety. Accused Chetan Parkash stated that he was going to Sundernagar on a bus. The police stopped the bus at some distance from Gutkar. He was taken out of the bus and made to sit in the vehicle. He was falsely implicated. Accused Hom Singh stated that he was innocent and he had not done anything. No defence was sought to be adduced by the accused. 3. It would be noticed that the learned Special Judge has not only upheld 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 though for being in conscious possession of only 35.613 grams charas. 4. However, as regards acquittal of respondent, it is vehemently argued by the learned Deputy Advocate General that the learned Special Judge has failed to appreciate that it is proved on record that convict Chetan Parkash had purcha.sed the charas from the respondent herein. Call details record has also proved the locations of both the accused persons to be the same. It is further contended that the prosecution has proved that the convict Chetan Parkash hadf 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 rrespondent under Sections 20 and 29 of the NDPS Act. 5. We have thoroughly gone through the records of the case andC find that it is the prosecution case that convict Chetan Parkash on inquiry had revealed that he had purchased the charas from the respondent. It has also come on grecord that the police had examined the call details record and ifound the location of convict Chetan Parkash and respondent to be same. But, this fact itself does not carry the case of the prosecution any further. 6. Further, story of the prosecution is that it was the convict Chetan Parkash, who led the investigating agency to Village Thanach and pointed out the place where the charas had been sold to him by the respondent. The site plan, Ext. P8 was prepared. But, this fact itself does not carry the case of the prosecution any further. 6. Further, story of the prosecution is that it was the convict Chetan Parkash, who led the investigating agency to Village Thanach and pointed out the place where the charas had been sold to him by the respondent. The site plan, Ext. P8 was prepared. The accused Chetan Parkash thereafter led the police team to his home where he showed the place where he had concealed the charas after purchasing it from .the respondent. No statement of the accused was recorded and only the site plan was prepared. 7. Evidently, nothing was recovered by the police on the basis of the statement made by convict Chetan Parkash, therefore, the moot question would be as to whether such statement could be relied upon and is admissible in evidence. 8. It is more than settled that admissibility under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offence. Thus, it incorporates the theory of “confirmation by subsequent facts” facilitating a glink to the chain of events. It is for the prosecution to prove that ithe information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused. Therefore, Section 27 is an exception to Sections 24 to 26 of the Indian Evidence Act meant for a specific purpose and thus can be construed as a proviso. 9. The Hon’ble Supreme Court in State of Rajasthan vs. Bhup Singh (1997) 10 SCC 675 while dealing with conditions in Section 27 of the Indian Evidence Act held as under:- 14. It is clear from the above evidence that PW 12 discovered the fact that the respondent had buried Article 4 the pistol. His statement to the police that he had buried the pistol in the ground near his house, therefore, gets extricated from the ban contained in Sections 25 and 26 of the Evidence Act as it became admissible under Section 27. His statement to the police that he had buried the pistol in the ground near his house, therefore, gets extricated from the ban contained in Sections 25 and 26 of the Evidence Act as it became admissible under Section 27. The conditions prescribed in Section 27 for unwrapping the cover of ban against admissibility of statement of the accused to the police have been satisfied. They are: (1) A fact should have been discovered in consequence of information received from the accused; (2) he should have been accused of an offence: (3) he should have been in the custody of a police officer when he supplied the information; (4) the fact so discovered should have been deposed to by the witness. If these conditions are satisfied, that part of the information given by the i accused which led to such discovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence. It is immaterial whether h the information was supplied in connection with the same crime or a different crime. Here the fact discovered by the police is not Article 4 the pistol, but that the accused had buried the said pistol and he knew where it was buried. Of course, discovery of the said fact became complete only when the pistol was recovered by the police. 15. In this context, we think it appropriate to quote the celebrated words of Sir John Beaumont in Pulukuri Kottaya v. Emperor: "In their Lordships' view it is fallacious to treat the 'fact discovered within the section as equivalent. to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.... Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house ah does n ot lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to Shave been used in the commission of the offence, the fact discovered is very relevant." (emphasis supplied). It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to Shave been used in the commission of the offence, the fact discovered is very relevant." (emphasis supplied). The ratio therein has become locus classicus and even the lapse of half a century after its pronouncement has not eroded its forensic worth. We may point out that this Court g has approvingly referred to the said ratio in a number of decisions e.g. Jaffar Hussain Dastagir v. State of Maharashtra K. Chinnaswamy Reddy v. State of A.P; Earabhadrappa v. State of Karnataka: Ranbir Yadav v. State of Bihar and Shamshul Kanwar v. State of UP. 10 In State of Karnataka vs. David Rozario, (2002) 7 SCC 728 , the Hon’ble Supreme Court while dealing with Section 27 of the Indian Evidence Act held as under:- 5. The first question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Evidence Act is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt. with by this Court in Delhi Admn. V. Balakrishan ( AIR 1972 SC 3 ) and Md. Inayatullah v. State of Maharashtra ( AIR 1976 SC 483 ). The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the ex tent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus receiv.ed from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the inform ation leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor ( AIR 1947 PC 67 ), is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see State of Maharashtra v. Danu Gopinath Shirde and Ors. (2000) Crl.LJ 2301]. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given. 11 In Anter Singh vs. State of Rajasthan (2004) 10 SCC 657 , the Hon’ble Supreme Court summed up requirements of Section 27 of the Indian Evidence Act as under:- (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused's own act. (4) The persons giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be. deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible. 12. Thus, what would be evident from the aforesaid exposition of law is that the 'fact discovered' under Section 27 of the Indian Evidence Act cannot be treated as equivalent with the object produced. The fact as discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinc tly to this fact. Information as to past user or the past history of the object produced is not related to its discovery in the setting in which it is discovered. 13. The information permitted to be admitted in evidence is confined to that portion of the information, which distinctly relates to the fact thereby discovered. Meaning thereby that if nothing is recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all making such information totally not admissible. 14. Secondly, 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. For it is mofre than settled that a confession made by a co-accused cannot be taken as substantive piece of evidence against another co-accused. 15. For it is mofre than settled that a confession made by a co-accused cannot be taken as substantive piece of evidence against another co-accused. 15. In Tofan Singh vs. State of Tamil Nadu, 2021 (4) SCC 1 , the Hon’ble Supreme Court held that 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. 16. Thus, in such circumstances, as rightly concluded by the learned Special Judge, no advantage can be derived by the prosecution from the confessional statement made by the convict Chetan Parkash implicating the respondent. This is not a legally admissible evidence and cannot be used against the respondent. 17. As regards call detail record, it would be noticed that mobile number 9459598679 has been proved to be in the name of one Indira Devi as per the customer application form, as deposed by PW12. Indira Devi stated that she had lost the SIM and obtained a new SIM. There is nothing on record to show that it was the respondent who was using the SIM. Therefore, in such circumstances, even if it is accepted that the location of these two mobile numbers was the same, it would not automatically connect the convict Chetan Parkash with respondent. 18 Furthermore, as rightly concluded by the learned Special Judge that the call detail record by itself cannot carry forward case of the prosecution to show that the charas was sold by respondent to convict Chetan Parkash. It can only show that both of them were in contact with each other, but would not lead Cto any inference that they were selling and purchasing the charas. Learned Special Judge has rightly held that there is no other evidence to connect the respondent with the sale of the gcharas and therefore, he cannot be held guilty of abetting the ipossession of charas by accused Chetan Parkash. 19 In view of the aforesaid discussions, leave to appeal is rejected and the petition is accordingly dismissed, so also the pending application(s), if any.