NDPS Confessions to NCB Officers Inadmissible, Sampling at Seizure Doubtful: Supreme Court Acquits Two in Heroin Case

On information received on 16 May 2002, an NCB intelligence officer, her team and two independent witnesses raided a Chennai hotel room occupied by accused no.4; all four accused were present, and a bag with 5.067 kg of heroin was seized (paras 1, 9). The trial court convicted accused no.1 and accused no.3 (the appellant Bothilal) under Section 8(c) read with Section 21(c) and other provisions, sentencing each to 11 years' rigorous imprisonment; the Madras High Court confirmed the convictions but reduced the sentence to ten years (para 1). The appellants relied on Tofan Singh and Mohanlal; the Additional Solicitor General argued the convictions stood on the official witnesses even without the confessions (paras 2, 4, 8).

The High Court had used the accused's confessional statements to corroborate the official witnesses (para 10). Under Tofan Singh, officers invested with powers under Section 53 are police officers, so confessions to them are barred by Section 25 of the Evidence Act; these confessions had to be kept out (paras 11-12). The statements of the two independent witnesses, who were never examined, were inadmissible, as the conditions of Section 53A were not proved and no explanation was offered (paras 13-14). The officer drew two samples from each packet before the contraband reached the Station House Officer (para 15). Under Mohanlal, samples are drawn in the Magistrate's presence; this sampling was not in conformity, and "This creates a serious doubt about the prosecution’s case that the substance recovered was contraband" (para 16). The bag was in the room of accused no.4, who was convicted only under Section 30; it was not in accused no.1's custody, and nothing showed the other accused brought it there (para 17). Possession was not proved beyond reasonable doubt (para 18).