Supreme Court on Confessional Statements and their Admissibility against Co-Accused

FACTS IN BRIEF

In the instant case, Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence, the Appellant i.e. Surinder Kumar Khanna was convicted along with other co-accused persons for illegally shipping commercial quantities of a narcotic drug, namely, Heroine, in India and also for abetting and conspiring in such crime, under Section 21 (c) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’) respectively.

The conviction of the Appellant by the Trial Court was solely based upon the statements recorded by the co-accused persons and there was nothing else on the record to indicate the involvement of the Appellant in commission of the crime indicated hereinabove. Adopting such reasoning, the High Court also affirmed the conviction of the Appellant.

The matter traversed the Hon’ble Supreme Court wherein the State/Prosecution placed on record the Call Data Reports (CDR) of the Appellants to indicate that around the time when the co-accused persons were getting arrested, the Appellant was in touch with some person from Dubai. Basically, apart from the statements of the co-accused persons recorded under Section 67 of the NDPS Act, there was nothing to link the Appellant with the co-accused persons.

LEGAL POSITION AND JUDGMENT

The Hon’ble Supreme Court observed that whether statement recorded under Section 67 of the NDPS Act can be construed as a confessional statement even if the officer who recorded such statement was not to be treated as a police officer, has now been referred to a larger Bench (Tofan Singh v. State of Tamil Nadu, (2008) 16 SCC 417) along with an incidental question that whether such a statement is to be treated as statement under Section 161 of Cr.P.C. or it partakes the character of statement under Section 164 of Cr.P.C.

Despite the fact that the abovementioned questions have not yet been decided, the Court went on to opine that even if a statement under Section 67 of the NDPS is considered to be a confessional statement, then also there is nothing in the scheme of the NDPS Act to suggest that such confession could be used as a piece of substantive evidence against the co-accused. In absence of the same and considering its earlier judgments, the Court conclusively observed that except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused, a confession cannot be treated as a piece of substantive evidence against a co-accused person. Thus, on account of lack of substantive evidence against the Appellant, the Hon’ble Supreme Court acquitted the Appellant of the charges levelled against him.

COMMENTS

In my humble opinion, this Judgment reaffirms the adage that one is innocent until proven guilty. Without existence of substantive evidence, today, a lot of Courts are convicting individuals merely on the pretext that more convictions will lead to deterrence in the minds of the criminals to commit crime and will lead to a crime-free society. I think such a reasoning is completely baseless and flawed. It is not the role of Judges or the Courts to indulge into policing of the society. Let that job remain with the Executive. The Courts do not exist to control the society but to adjudicate disputes and interpret the law, as and when required. This is a welcome Judgment and it should set a precedent for the Judiciary to not to become conviction-minded for the sake of achieving some utopian goal.