JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 15-11-2017 passed by the Special Judge (NDPS Act, 1985), Dhamtari in Special Criminal Case No.5/2010, by which the sole appellant herein has been convicted for offence under Section 20(b)(ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’) for having been found in possession of 120 Kgs. of Ganja along with co-accused Rajendra Singh Thakur @ Abhay (now convicted) and sentenced to undergo rigorous imprisonment for twenty years & pay fine of Rs.1,00,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for five years. 2. Co-accused Rajendra Singh Thakur @ Abhay was tried for offence under Section 20(b)(ii)(C) of the NDPS Act in Special Criminal Case No.5/2010 by the Special Judge (NDPS Act), Dhamtari and by judgment dated 24-3-2011, he has been convicted for the said offence and sentenced to undergo rigorous imprisonment for twenty years & pay fine of Rs.1,00,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for five years. However, on appeal preferred by him before this Court being Cr.A.No.150/2012, his conviction has been maintained and jail sentence has been reduced to ten years, while fine sentence has been enhanced to Rs.2,00,000/-, with default stipulation of rigorous imprisonment for five years. He has been released on 11-5-2023 after completion of his sentence. 3. Case of the prosecution, in short, is that on 15-3-2010 at 11:30 a.m., an information regarding two persons travelling with contraband article Ganja in a blue colour Maruti Car was received and accordingly, mukhbir panchnama was prepared by Pradip Kumar Sori (PW-6) vide Ex.P-1 and notice under Section 50 of the NDPS Act for search of person / vehicle was served to accused Rajendra Singh Thakur vide Ex.P-9. Panchnama with regard to search of police party was prepared by Pradip Kumar Sori (PW-6) vide Ex.P-10 and search memo was prepared vide Ex.P-11 on which 13 jute and plastic bags containing Ganja were found kept on the rear seat of Maruti Car. Investigation was made and panchnama with respect to identification of Ganja found in possession of accused Rajendra Singh Thakur was preapred vide Ex.P-12. Investigation was made and panchnama with respect to identification of Ganja found in possession of accused Rajendra Singh Thakur was preapred vide Ex.P-12. Similarly, panchnama with respect to weight of Ganja was prepared vide Ex.P-8 and total weight of Ganja was found to be 120 Kgs.. Notice under Section 91 of the NDPS Act was given to accused Rajendra Singh Thakur vide Ex.P-18 and 13 bags (3 plastic bags and 10 jute bags) containing Ganja were seized from accused Rajendra Singh Thakur vide Ex.P-14. Maruti Car and driving license were seized from accused Rajendra Singh Thakur vide Ex.P-15. Dehati Nalshi was prepared vide Ex.P-20 and accused Rajendra Singh Thakur was arrested vide Ex.P-16. FIR was registered vide Ex.P-21 in which name of Rajendra Singh was mentioned as accused, however, it has been mentioned therein that one accused is absconding. Report under Section 57 of the NDPS Act was sent to the Sub-Divisional Officer of Police, Kurud, vide Ex.P-23C. Samples of the seized contraband article Ganja were taken on 17-3-2010 and same were deposited in the FSL, Raipur on 19-3-2010. Final report was prepared on 18-6-2010 in which present accused / appellant Dhani Ram Gond was found absconding. FSL report was prepared on 14-7-2010 vide Ex.P-26 in which the samples were found to be Ganja. After conclusion of trial, Rajendra Singh Thakur @ Abhay was convicted under Section 20(b)(ii)(C) of the NDPS Act and sentenced to undergo rigorous imprisonment for twenty years & pay fine of Rs.1,00,000/-, in default, to further undergo additional rigorous imprisonment for five years, which was later-on, modified by this Court in appeal by reducing jail sentence to 10 years and enhancing fine sentence to Rs.1,00,000/-with default stipulation. 4. The present appellant was arrested on 11-7-2017 and put to trial and he has been convicted by the trial Court by recording finding in paragraph 51 of the impugned judgment that though the appellant was absconding from the spot, the investigation made by the Investigating Officers namely, Manoj Kumar Berwanshi (PW-5) & Pradip Kumar Sori (PW-6) would also be applicable to the present accused / appellant, who was absconding, and thereafter proceeded to convict him. 5. Mrs. 5. Mrs. Laxmin Tondey, learned counsel appearing for the appellant, would submit that the prosecution has not been able to prove the offence alleged against the appellant beyond reasonable doubt and the trial Court is absolutely unjustified in convicting and sentencing the appellant for the aforesaid offence, therefore, the appellant is entitled for acquittal. 6. Mr. Rishi Rahul Soni, learned amicus curiae, would submit that since the statement of the present appellant under Section 67 of the NDPS Act, as stated by Investigating Officers – Manoj Kumar Berwanshi (PW-5) & Pradip Kumar Sori (PW-6), which has been allegedly recorded on 15-3-2010, was not exhibited and furthermore, by virtue of Section 67 of the NDPS Act, as held by their Lordships of the Supreme Court in the matter of Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1 , followed in the matter of Balwinder Singh (Binda) v. The Narcotics Control Bureau, 2023 LiveLaw (SC) 813 and further followed in the matter of Rajkumar Hariram Gameti v. State of Gujarat and another, 2024 SCC OnLine SC 572, a statement made by an accused and recorded under Section 67 of the NDPS Act is inadmissible in evidence as a confessional statement in the trial of an offence under the NDPS Act, the present appellant is liable to be acquitted. He would further submit that dock identification made by Investigating Officer Pradip Kumar Sori (PW-6) is a very weak piece of evidence and on that basis, the present appellant could not be convicted. In support of this contention, he would rely upon the decision of the Supreme Court in the matter of Bollavaram Pedda Narsi Reddy and others v. State of Andhra Pradesh, (1991) 3 SCC 434 . In that view of the matter, the appellant herein is entitled for acquittal and accordingly, the instant appeal deserves to be allowed. 7. Mr. Arvind Dubey, learned Government Advocate appearing for the State / respondent, would support the impugned judgment of conviction and order of sentence and submit that the Special Court is absolutely justified in convicting the present appellant and as such, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record carefully and thoroughly as well. 9. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record carefully and thoroughly as well. 9. It is not in dispute that on 15-3-2010, Manoj Kumar Berwanshi (PW-5) & Pradip Kumar Sori (PW-6) conducted investigation of the case and proceeded in trial in which all proceedings were drawn against accused Rajendra Singh Thakur @ Abhay and only in the FIR (Ex.P-21), it was recorded that one person was absconding and final report, which is available at pages 35 & 36 of the paper book, was prepared in which also the present appellant has been shown to be absconding and later-on, he was arrested on 11-7-2017 and thereafter, he was put to trial and the trial Court by the impugned judgment of conviction and order of sentence, has recorded following finding in paragraph 51: - 10. Though the statement of co-accused Rajendra Singh Thakur @ Abhay recorded on 15-3-2010 is said to have proved by Manoj Kumar Berwanshi (PW-5) in paragraph 9 of his statement and also by Pradip Kumar Sori (PW-6) in paragraph 20 of his statement, but the fact remains that it is co-accused Rajendra Singh Thakur @ Abhay who informed them that the present appellant is also involved in the incident / offence, but, surprisingly, though the statement co-accused Rajendra Singh Thakur @ Abhay is available on record, but it has not been marked as exhibit at the instance of the prosecution. However, the legal position in this regard has now been crystallized by the judgment of the Supreme Court in Tofan Singh (supra) in which their Lordships after a detailed examination of the legal position in the light of the provisions contained in the NDPS Act, vis-a-vis revenue Statutes like the Customs Act, 1962 and the Central Excise Act, 1944 as also the CrPC and Section 25 of the Evidence Act, arrived at the following conclusion: - “155. Thus, to arrive at the conclusion that a confessional statement made before an officer designated under Section 42 or Section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India. 156. 156. The judgment in Kanhaiyalal, [Kanhaiyalal v. Union of India, (2008) 4 SCC 668 : (2008) 2 SCC (Cri) 474] then goes on to follow Raj Kumar Karwal, [Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409 : 1990 SCC (Cri) 330] in paras 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us. 157. On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga, [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] and Nirmal Singh Pehlwan v. Inspector, Customs, (2011) 12 SCC 298 : (2012) 1 SCC (Cri) 555 are correct in law. 158. We answer the reference by stating: 158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. 158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.” 11. In view of the authoritative pronouncement of the Supreme Court that any confessional statement made by an accused to an officer invested with the powers under Section 53 of the NDPS Act, is barred, as such officers are “police officers” within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. 12. Similarly, the Supreme Court in Rajkumar Hariram Gameti (supra) held in paragraphs 6 and 10 as under: - “6. The position of law over a period of time has changed. 12. Similarly, the Supreme Court in Rajkumar Hariram Gameti (supra) held in paragraphs 6 and 10 as under: - “6. The position of law over a period of time has changed. In the year 2020, a three-Judge Bench of this Court answered a Reference Order of a Division Bench in Tofan Singh v. State of Tamil Nadu, [ (2013) 16 SCC 31 ] and re-examined the ratio in the case of Kanhaiyalal v. Union of India [ (2008) 4 SCC 668 ] and Raj Kumar Karwal v. Union of India [ (1990) 2 SCC 409 ], to decide as to whether the officer investigating a matter under the NDPS Act would qualify as a ‘Police Officer’ or not. The other related issue which was examined by the larger Bench in Tofan Singh [ (2021) 4 SCC 1 ] was whether the statement recorded by the investigating officer under section 67 of the NDPS Act can be treated as a confessional statement or not even if the offender is not treated as a ‘Police Officer’ or not. 10. Thus, the position of law, as on date, is that any confessional statement made by an accused to an officer invested with the powers under Section 53 of the NDPS Act, is barred for the reason that such officers are ‘police officers’ within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.” 13. In the matter of Firdoskhan Khurshidkhan v. The State of Gujarat and another, 2024 SCC OnLine SC 680 accused Firdoskhan (A-2) was convicted relying upon the statement of co-accused Anwarkhan (A-1) and their Lordships of the Supreme Court relying upon the decision in Tofan Singh (supra) held in paragraphs 26 and 27 of the report as under: - “26. The admissibility of a confessional statement of the accused recorded under Section 67 of the NDPS Act was examined by this Court in the case of Tofan Singh (supra) and it was laid down that such confessional statements are not admissible in evidence. 27. The admissibility of a confessional statement of the accused recorded under Section 67 of the NDPS Act was examined by this Court in the case of Tofan Singh (supra) and it was laid down that such confessional statements are not admissible in evidence. 27. Hence, the statement (Exhibit-42) of Anwarkhan (A-1) wherein he allegedly identified the appellant Firdoskhan (A-2) as the person who had escaped from the spot cannot be read in evidence against the appellant Firdoskhan (A-2) because the manner in which the said statement was recorded leaves much to be desired and creates a grave doubt on the sanctity thereof, in addition to the same having rendered inadmissible by virtue of Tofan Singh (supra).” 14. As such, the confessional statement of co-accused Rajendra Singh Thakur @ Abhay is not useful to the prosecution as it could not be exhibited and thus, it cannot be relied upon for the purpose of convicting the present appellant in light of Tofan Singh (supra) and Firdoskhan Khurshidkhan (supra). 15. Furthermore, dock identification is a very weak piece of evidence and it could not be relied upon as held by their Lordships of the Supreme Court in the matter of Budhsen and another v. State of U.P., 1970 (2) SCC 128 in which their Lordships laid down the principle of law holding that identification of the accused person at the trial for the first time is of weak character, and observed as under in paragraph 7 of the report: - “7. Now, facts which establish the identity of an accused person are relevant under Section 9 of the Indian Evidence Act. As a general rule, the substantive evidence of a witness is a statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. ...” 16. Similarly, in Bollavaram Pedda Narsi Reddy (supra), their Lordships of the Supreme Court have clearly held that the evidence given by the witnesses before the Court is the substantive evidence. It has been further held that in a case where the witness is a stranger to the accused and he identifies the accused person before the court for the first time, the court will not ordinarily accept that identification as conclusive. It is to lend assurance to the testimony of the witnesses that evidence in the form of an earlier identification is tendered. Their Lordships observed as under in paragraph 8 of the report: - “8. The evidence given by the witnesses before the court is the substantive evidence. In a case where the witness is a stranger to the accused and he identifies the accused person before the court for the first time, the court will not ordinarily accept that identification as conclusive. It is to lend assurance to the testimony of the witnesses that evidence in the form of an earlier identification is tendered. If the accused persons are got identified by the witness soon after their arrest and such identification does not suffer from any infirmity that circumstance lends corroboration to the evidence given by the witness before the court. But in a case where the evidence before the court is itself shaky, the identification before the magistrate would be of no assistance to the prosecution.” 17. As such, we are of the considered opinion that since the confessional statement of the co-accused is not admissible in evidence for the reasons held herein-above particularly for the reason that the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character, we have no option left except to acquit the present appellant of the said alleged against him and therefore the present appellant namely, Dhani Ram Gond is entitled for acquittal on the ground of benefit of doubt. In that view of the matter, conviction and sentences imposed upon the appellant under Section 20(b)(ii)(C) of the NDPS Act are hereby set aside and he is acquitted of the said charge. He is in jail since 11-7-2017. He be released forthwith, if not required in any other case. 18. The criminal appeal stands allowed. 19. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for necessary information and action, if any.