Officers who have been given powers under section 53 of the NDPS Act are “police officers” within the scope of section 25 of the Evidence Act, which means that any confessional statement made to them is forbidden under section 25 of the Evidence Act and cannot be used to prosecute an accused under the NDPS Act. The judgement was passed by the High Court of Jharkhand in the case of Lacchu Ganjhu vs The State of Jharkhand [Criminal Appeal (DB) No.695 of 2014] by Division Bench consisting of Hon’ble Justice Shree Chandrashekhar & Justice Ratnaker Bhengra.
The case was registered against petitioners on the allegation of illegal cultivation of poppy plants under sections 15 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The learned counsel for the petitioners argued that the procedure prescribed for search and seizure was not followed, the prosecution has not established that poppy was cultivated in the agricultural field of Parana Ganjhu and, above all, based on the evidence of official witnesses conviction of the appellants cannot be recorded under sections 15, 18 and 21 of N.D.P.S Act.
The learned counsel, on the other hand, argued that the appellants are based on cryptic and insufficient evidence. The chain leading to the seizure and production of the contraband was completely broken. There is no evidence that the seized contraband was deposited in Malkhana. The Malkhana register was not produced and the in-charge of Malkhana was not examined during the trial. The Block Development Officer who allegedly accompanied the raiding team was not examined by the prosecution.
He further relied on SC judgment in the case of Ashok v. State of M.P wherein it was observed that seizure witnesses turning hostile may not be very significant by itself but before a conviction is recorded there must be connecting evidence. But, in the present case, there is no satisfactory evidence, either oral or documentary, to show that the seized contraband was cultivated by the appellants and report of the chemical examination was of the seized material.
The court relied on the supreme court judgment in the case of Tofan Singh v. State of T.N it was noted 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 to convict an accused under the NDPS Act.”
The court while allowing the petition held that “if a statement by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so section 30 provides that such a confession may be taken into consideration even against a co-accused, however, the proper approach to adopt would be to consider the other evidence against the co-accused and if such evidence may sustain the charge framed against him the Court may turn to the confession to lend assurance to the tentative opinion formed by it.”