Criminal Application No. 1075 of 2001

8th September, 2001

Petitioner Counsel: Shri. V.R.MANOHAR, S.V.MANOHAR
Respondent Counsel: Shri. S.G.LONEY, Shri. D.B.YENGAL

Cases Cited:
Ashok Datta Naik Vs. State1979 Cri.L.J. NOC 95, page 45 [Para 10]
Asstt. Collector of Customs, New Delhi Vs. Harbans Lal Sharaf, 1980 Cri.L.J. 618 [Para 11]
Ananta Dixit Vs. The State, 1984 Cri.L.J. 1126 [Para 12]
Kalpnath Rai Vs. State, 1998 ALL MR (Cri) 240 (S.C.)=1997 (8) SCC 732 [Para 13]
Suresh Budharmal Kalani @ Pappu Kalani Vs. State of Maharashtra, 1999 ALL MR (Cri) 95 (S.C.)=AIR 1998 SC 3258 [Para 14]
Superintendent of Police CBI/SIT Vs. Nalini , 1999 ALL MR (Cri) 1273 (S.C.)=1999(5) SCC 253 [Para 15]
Aravind Mehram Patel Vs. The Intelligence Officer, Narcotics Control Bureau 1991 Cri.L.J. 382 [Para 18]
Puran Sri Ram Vs. The State of Punjab, (I) AIR 1953 SC 459 [Para 19]
Nathu Vs. State of Uttar Pradesh, AIR 1956 SC 56 [Para 20]
Ram Prakash Vs. The State of Punjab, AIR 1959 SC 1 [Para 21]
Haricharan Kurmi Vs. State of Bihar, AIR 1964 SC 1184 [Para 22]
Bhuboni Sahu Vs. The King, AIR 1949 Privy Council 257 [Para 22]
Rashid Gafoor Parkar Vs. State of Maharashtra, 1984 JSCTL 277 [Para 22]
Mohd.Hussain Umar Kochra Vs. K.S.Dalipsinghji, AIR 1970 SC 45 [Para 23]
Smt.Paru Mrugesh Jaikrishna Vs. Assistant Collector of Customs, 1988 Cri.LJ 963 [Para 24]
Sasi Vs. State of Kerala, 2000(1) SCC 360 [Para 25]
Roy V.D. Vs. State of Kerala, 2000(8) SCC 590 [Para 26]
Union of India Vs. Ram Samujh, 1999(9) SCC 429 [Para 27]
Babua @ Tazmul Hossain Vs. State of Orissa, 2001 ALL MR (Cri) 990 (S.C.) [Para 28]
Intelligence Officer, Narcotics C. Bureau Vs. Sambhu Sonkar, 2001 ALL MR (Cri) 1006 (S.C.) [Para 29]
Lal Singh Vs. State of Gujarat, 2001 ALL MR (Cri) 1038 (S.C.) [Para 30]

JUDGMENT

JUDGMENT :- The applicant was arrested by D.R.I., respondent No.1 on 24.05.2001 in connection with offences under Sections 21,23,25,26,27-A read with Sections 29 and 8-C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as NDPS Act) in respect of seizures made on 23 and 24.11.1995. The applicant had filed an application for bail which was rejected by the learned Extra Joint District and Additional Sessions Judge, Amravati vide order dated 09.08.2001. The applicant has, therefore, moved an application for bail in this Court.

2. The bail application was argued on behalf of the applicant by Senior Counsel Shri. V.R.Manohar and Advocate Shri. S.V.Manohar and on behalf of the respondent Nos. 1 and 3, the bail application was argued by learned Special Public Prosecutor Shri. S.G.Loney and learned A.P.P. Shri. D.B. Yengal for respondent No.2.

3. Learned Senior Counsel took me through the background of the case and has basically made the following submissions :-

(I) The confessions of Kantilal Jogani and Kasam Merchant cannot be used against the applicant in view of Section 30 of the Evidence Act and in support of this proposition he has placed reliance on rulings to which reference shall be made at the time of discussion of the matter on merits. Besides this, according to learned Senior Counsel for the applicant, there is no other evidence against the applicant.

(II) Even the said confessions had been obtained by the D.R.I. by threat and coercive method on account of which the said confessions were rejected by the Sessions Court in respect of the trial of this case relating to the said Kantilal Jogani and Kasam Merchant who were acquitted of the charges in the said case by the learned Sessions Judge vide judgment dated 24.09.1998 though six other accused were convicted by the said judgment. In support of this submission also, reliance was placed on some authorities to which reference shall be made at the time of discussion on merits.

(III) The said confessions were retracted by Kantilal Jogani and Kasam Merchant and there is no other material to connect the applicant with the crime and even otherwise it is urged that the confession of co-accused is a weak piece of evidence for which the courts normally look for the corroboration.

4. In view of the above submissions, it is urged that on the strength of the material on record there are reasonable grounds for believing that the applicant is not guilty of the offence of which he has been charged.

5. Learned Special Public Prosecutor Shri. Loney argued that the applicant was a party to the conspiracy in respect of the seizure made on 23/24.11.1995 and the involvement of the applicant was spoken by Kantilal Jogani as also Kasam Merchant in the statements made by them before the authorities under Section 67 of the NDPS Act. He also pointed out that D.R.I. has also recorded the statement of the applicant under Section 67 of the NDPS Act wherein the involvement of the applicant in the whole episode is made out even though he calls himself to be an informer which question has to be decided during the course of the trial and not at this stage. He also pointed out that Kantilal Jogani and Kasam Merchant had retracted the confessions made by them at 313 Cr.P.C. stage. He also pointed out to the statements of some other witnesses including Prashant Rathi, Seizure Panchnama dated 23.11.1995 is also relied as also rulings to which reference shall be made at the time of discussion on merits of the application. He, therefore, contends that the bail application be rejected. Learned A.P.P. Shri. Yengal appearing on behalf of respondent No.2, adopted the arguments advanced by learned Special P.P. Shri. Loney.

6. In reply, learned Advocate Shri. S.V. Manohar argued that the name of the applicant does not figure in any of the statements of witnesses and the seizure panchnama dated 23.11.1995 does not show any connection of the applicant with the said seizure since the seizure was made from Prashant Rathi who has been convicted by the Sessions Court.

7. In order to appreciate the submissions and the rulings upon which reliance has been placed by the parties, it is necessary first to have a bird's eye view of the facts of the case. On 23/24.11.1995, Officers of D.R.I. Mumbai along with Officers of Central Excise, Amravati conducted raids at Amravati and Akola and seized huge quantities of Methaqholone powder and Mandrax tablets. In respect of this seizure, the prosecutions were lodged by Superintendent of Central Excise, Akola and Assistant Commissioner of Central Excise, Amravati by filing separate complaints against nine accused including Kantilal Jogani and Kasam Merchant who are accused Nos. 9 and 10 in the said Sessions Trials No. 66 of 1996 and 108 of 1997. The said Sessions Cases were disposed of by the judgment dated 24.09.1998 in which accused Nos. 1 to 6 including accused No.5 Prashant Rathi were convicted under Section 22 read with 8-C of the NDPS Act. The said accused were acquitted for offence punishable under Section 29 read with 8-C of the NDPS Act. Accused Nos. 7 to 9 were acquitted of offences under Sections 22 and 29 with 8-C of the NDPS Act.

8. The applicant apprehending arrest in the said case, had filed Criminal Writ Petition No. 272 of 1997 as also Criminal Application No. 353 of 1998 before this Court. In the Criminal Writ Petition No. 272 of 1997, reply was filed by the respondent No.1, Superintendent of Narcotic Cell Custom Preventive as also by V.K.Tolani of D.R.I. on behalf of respondent No.6. In reply filed by respondent No.1, it was stated that the applicant was in fact informer in connection with the seizure which was ultimately effected by D.R.I. In an affidavit filed by V.K.Tolani on behalf of the respondent No.6, it was stated that the Investigating department has filed two complaints in respect of the seizure at Amravati and Akola and the petitioner has not been named in any of the two complaints; the petitioner did not make available himself for investigation in spite of repeated summons. The issue regarding filing complaint against the petitioner has not been considered by the D.R.I. so far and that at this stage, it was not possible to make any statement whether the D.R.I. would launch prosecution against the petitioner or not. In view of this stand taken by the respondents, the criminal writ petition was disposed of by this Court vide order dated 31.03.1998. In this order, it was observed that the learned Advocate for the respondent Nos. 4 and 6 had stated that the applicant was not mentioned in the said complaint. However, the respondents want to investigate into the offences mentioned in the said complaint as against the applicant on the basis of the material which is used in the above referred two complaints and any other fresh material made available to the respondent Nos. 4 and 6 after further investigation in the crime and thereafter fresh complaint will be filed as against the present applicant, if decision to that effect is taken by the Department. In view of this statement of learned Advocate for respondent Nos. 4 to 6 in the said writ petition, the learned Advocate for the applicant withdrew the writ petition with liberty to approach this Court if the fresh complaint is filed before this Court. The Criminal Application No. 353 of 1998 was also disposed of vide order dated 31st March 1998 by this Court stating that in view of the order passed in Criminal Writ Petition No. 272 of 1997, it appears that as on date there is no offence registered against the applicant as a result of which there was no apprehension for arrest. Accordingly, learned Advocate for the applicant was allowed to withdraw the said application. The D.R.I. has now filed complaint against the applicant on 29th August, 2001.

9. In these proceedings, D.R.I. seeks to rely on the confessional statements of Kantilal Jogani and Kasam Merchant under Section 30 of the Indian Evidence Act. Section 30 of the Indian Evidence Act reads as under:-

"30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession.

[Explanation.- "Offence", as used in this section, includes the abetment of, or attempt to commit the offence.]

Illustrations

(a) A and B are jointly tried for the murder of C. It is proved that A said - "B and I murdered C". The Court may consider the effect of this confession as against B.

(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said - "A and I murdered C".

This statement may not be taken into consideration by the Court against A, as B is not being jointly tried."

I shall now briefly refer to the authorities upon which reliance has been placed by the learned Senior Counsel for the applicant in support of his arguments that the confessional statements of Kantilal Jogani and Kasam Merchant cannot be used against the applicant in view of Section 30 of the Indian Evidence Act. It is now well settled that before a statement by one of the accused persons can be taken into consideration against other accused, the following conditions must be satisfied.

(i) There must be a joint trial for the same offence.

(ii) It must be a confession.

(iii) The confession of guilt must affect himself and the others i.e. inculpate the maker substantially to the same extent as the other co-accused.

(iv) The confession of guilt must be duly proved.

If these conditions are satisfied then the Court may take into consideration such confession as against such other persons as well as against the other persons who make such confession. In illustration (b) to Section 30, it is stated that the statement may not be taken into consideration by the Court against A as B is not being jointly tried.

10. In Ashok Datta Naik and others v. State (reported in 1979 Cri.L.J. NOC 95, page 45), it has been held by Judicial Commissioner's Court, Goa, Daman and Diu that Section 30 which makes confession of an accused admissible against a co-accused applied only to case in which the confession has been made by a person tried at the time with the accused persons against whom the confession is used. Therefore, a confession of an absconding co-conspirator who is not tried jointly with other conspirators cannot be used against the latter.

11. In Asstt. Collector of Customs, New Delhi v. Harbans Lal Sharaf (reported in 1980 Cri.L.J., 618) a Division Bench of the Delhi High Court has laid down in para 35 that one of the requisites for admissibility of confession of one accused against the other is that there should be a joint trial, where a joint trial did start but could not last long as one of the accused absconded and, the case of that accused was separated under Section 512 of the Criminal Procedure Code 1898. Section 30 of the Evidence Act was not attracted and the statement of the other accused was not usable against the absconding accused.

12. In Ananta Dixit v. The State (reported in 1984 Cri.L.J. 1126), the Orissa High Court has laid down that Section 30 applies to a case in which the confession is made by accused tried at the same time with the accused person against whom a confession is used. The confession of an accused tried previously would be rendered inadmissible. It is further laid down that the confession of a co-accused is not technically "evidence" and it cannot be treated as substantive evidence. Section 30 gives the Court discretion to use it against a co-accused when the condition as to its affecting himself and the other accused is fulfilled. It is pointed out that the words "may take into consideration" have been designedly used and go to show that if there is other relevant evidence tending to prove the guilt of the accused, the confession of a co-accused may then be used only in support of other evidence, but confession of co-accused cannot be made as a foundation of the conviction. It is also laid down that such a confession cannot be added to supplement the evidence otherwise insufficient nor can it be used to fill a gap in the prosecution evidence. The evidentiary value of the confession of a co-accused is extremely weak piece of evidence.

13. In Kalpnath Rai v. State (through CBI) reported in 1997 (8) SCC 732 : (1998 ALL MR (Cri) 240 (S.C.)), the Apex Court while dealing with the provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987, after considering Section 15 of the said Act and Section 30 of the Evidence Act has laid down:-

"73. The first condition is that there should be a confession i.e. inculpatory statement. Any exculpatory admission is not usable for any purpose whatsoever as against a co-accused. The second condition is that the maker of the confession and the co-accused should necessarily have been tried jointly for the same offence. In other words, if the co-accused is tried for some other offence, though in the same trial, the confession made by one is not usable against the co-accused. The third condition is that the confession made by one accused should affect him as well as the co-accused. In other words, if the confessor absolves himself from the offence but only involves the co-accused in the crime, while making the confession, such a confession cannot be used against the co-accused.

74. Even if no conditions are satisfied the use of a confession as against a co-accused is only for a very limited purpose i.e. the same can be taken into consideration as against such other person. It is not well settled that under Section 30 of the Evidence Act the confession made by one accused is not substantive evidence against a co-accused. It has only corroborative value (vide Kashmira Singh v. State of M.P. Nathu v. State of U.P., Haricharan Kurmi v. State of Bihar)

75. A confession made admissible under Section 15 TADA can be used as against a co-accused only in the same manner and subject to the same manner and subject to the same conditions as stipulated in Section 30 of the Evidence Act."

Section 15 of TADA provides that, "notwithstanding anything in the Code or in the Indian Evidence Act, but subject to the provisions of this section, a confession made by a person before a Police Officer not lower in rank than a Superintendent of Police shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or Rules made thereunder, provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused. The Apex Court has further pointed in para 76 that though under Section 15 of TADA such a confession is admissible in evidence even when the confessor and the co-accused are tried in the same case (no matter that they are not tried together for the same offence) the utility of such a confession as against the co-accused gets substantially impaired for all practical purposes unless both of them are tried for the same offence.

14. In Suresh Budharmal Kalani alias Pappu Kalani v. State of Maharashtra (reported in AIR 1998 SC 3258 : ( [1999 ALL MR (Cri) 95 (S.C.)]), while dealing with Section 14 of TADA, the Apex Court has observed that at the stage of framing of charges the Court is required to confine its attention to only those materials collected during investigation which can be legally translated into evidence and not upon further evidence (dehors those materials) that the prosecution may, adduce in the trial, which would commence only after the charges are framed and the accused denies the charges. It was held that the designated court was, therefore, not at all justified in taking into consideration the confessional statement of accused for framing charges against co-accused.

15. Learned Senior Counsel for the applicant as also learned Special P.P.had placed reliance on State of Tamil Nadu through Superintendent of Police CBI/SIT v. Nalini and others (reported in AIR 1999 SC 2640 : 1999(5) SCC 253 : [1999 ALL MR (Cri) 1273 (S.C.)]). Learned Senior Counsel for the applicant has relied upon para 678 of the ruling cited in AIR and learned A.P.P. placed reliance on head note-B of the ruling cited in SCC. The apex Court in this judgment has laid down :-

"There is no provision in the Evidence Act for making confession of an accused relevant or admissible against the co-accused. In the setting of those provisions Section 30 of the Evidence Act is enacted which is a clear departure from the principles of English laws. A plain reading of Section 30 of the Evidence Act discloses that when the following conditions exist, namely, (i) more persons than one are being tried jointly; (ii) the joint trial of the persons is for the same offence; (iii) a confession is made by one of such persons (who are being tried jointly for the same offence); (iv) such a confession affects the maker as well as such persons (who are being tried jointly for the same offence); and (v) such a confession is proved in court, the court may take into consideration such confession against the maker thereof as well as against such persons (who are being jointly tried for the same offence). The expression "may take into consideration" means that the use of the evidence of confession of an accused may be used for purposes of corroborating the evidence on record against the co-accused and that no conviction can be based on such confession.

There is difference between Section 30 of the Indian Evidence Act and Section 15(1) of the TADA Act. Though both Section 30 of the Evidence Act as well as Section 15 of the TADA Act required joint trial of the accused making confession and the co-accused, abettor or conspirator, but whereas the former provision requires that the maker of the confession and others should be tried jointly for the same offence, the latter provision does not require that joint trial should be for the same offence. Another point of distinction is that under Section 30 of the Evidence Act, the court is given discretion to take into consideration the confession against the maker as well as against those who are being tried jointly for the same offence, but Section 15(1) of the TADA Act mandates that confession of an accused recorded thereunder shall be admissible in the trial of the maker of confession or co-accused, abettor or conspirator, provided the co-accused, abettor or conspirator is charged and tried with the accused in the same case."

Learned Special Public Prosecutor has placed reliance on the following observations of the Apex Court.

"Section 15 TADA starts with a non obstante clause. It says that neither the Evidence Act nor the Code of Criminal Procedure will apply. This is certainly a departure from the ordinary law. When the legislature enacts that the Evidence Act would not apply, it would mean all the provisions of the Evidence Act including Section 30. By judicial interpretation or judicial rigmarole, the court cannot again bring into operation Section 30 of the Evidence Act and any such attempt would not appear to be quite warranted. TADA was enacted to meet extraordinary situation existing in the country. Its departure from the law relating to confession as contained in the Evidence Act is deliberate. Law has to respond to the reality of the situation. What is admissible is the evidence. Confession of the accused is admissible with the same force in its application to the co-accused who is tried in the same case. It is primary evidence and not corroborative. It must, therefore, be held that under Section 15 of TADA confession of an accused is admissible against a co-accused as a substantive evidence. Substantive evidence, however, does not necessarily mean substantial evidence. It is the quality of evidence that matters. As to what value is to be attached to a confession will fall within the domain of appreciation of evidence. As a matter of prudence, the court may look for some corroboration if confession is to be used against a co-accused though that will again be within the sphere of appraisal of evidence."

16. From the above discussion of the law on the subject, it is crystal clear that confession of the co-accused Kantilal Jogani and Kasam Merchant cannot be used against the present applicant in this trial as the same is hit by Section 30 of the Evidence Act.

17. The confessions of Kantilal Jogani and Kasam Merchant were not even accepted by the Additional Sessions Judge, Akola in Sessions Trial Nos. 69 of 1996 and 108 of 1997, since the Additional Sessions Judge, Akola found that the said confessions had been obtained by the authorities after threatening and by coercive methods and the said confessions were not voluntary. He also held that there is no corroboration by any other evidence even by circumstantial evidence of the said confessions which had been otherwise obtained by threat and coercive method and were not voluntary. Even the learned Extra Joint District and Additional Sessions Judge, Amravati who has rejected the bail application of the present applicant found that primarily evidence against the applicant is the confessional statements of the said Kantilal Jogani and Kasam Merchant. The trial Court did not at all deal with the contention relating to joint trial vis-a-vis the said confession under Section 30 of the Evidence Act.

18. In Arvind Mehram Patel and another v. The Intelligence Officer, Narcotics Control Bureau, Bombay (reported in 1991 Cri.L.J. 382), it was held by this Court that the statements of petitioners and statements of accused which implicated petitioners obtained by their illegal detention for four days and by assault and violence and not corroborated by other evidence though admissible yet the fact that they were not voluntarily made and in the absence of any other evidence on record would entitle the prisoners to grant of bail.

19. Coming now to the position of retracted confession, the Apex Court in Puran Sri Ram v. The State of Punjab (I) (reported in AIR 1953 SC 459) has laid down that it is settled rule of evidence that unless a retracted confession is corroborated in material particulars, it is not prudent to base a conviction in a criminal case on its strength alone.

20. In Nathu v. State of Uttar Pradesh (reported in AIR 1956 SC 56), the Apex Court has held that confessions of co-accused are not evidence as defined in Section 3 and no conviction can be founded thereon, but if there was other evidence on which a conviction can be based, they can be referred to as lending assurance to that conclusion by fortifying it.

21. In Ram Prakash v. The State of Punjab (reported in AIR 1959 SC 1), the Apex Court has laid down :-

"Section 30, Evidence Act, makes it clear that where more persons than one are being tried jointly for the same offence, a confession made by any one of them affecting himself and any one of his co-accused can be taken into consideration by the Court not only against the maker of the confession but also against his co-accused. The Evidence Act however provides that if the confession is retracted, it cannot be taken into consideration against the co-accused or the confessing accused. Accordingly, the provisions of the Evidence Act do not prevent the Court from taking into consideration a retracted confession against the confessing accused and his co-accused.

The amount of credibility to be attached to a retracted confession, however, would depend upon the circumstances of each particular case. Although a retracted confession is admissible against a co-accused by virtue of S.30, Evidence Act, as a matter of prudence and practice a court would not ordinarily act upon it to convict a co-accused without the strongest and fullest corroboration on material particulars. The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as the connection of the co-accused with that crime.

Held on the facts of the case that the confession of the co-accused though retracted was not only voluntary and true but it had been corroborated in material particulars regarding the general story told by him in his confession and in tending to connect the appellant with the murder of the deceased. Recovery of the ornaments of the deceased at the instance of the appellant incriminated him to the fullest extent and lent the strongest corroboration to the confession of the co-accused from which it was apparent that no other person than the appellant could have murdered the deceased."

22. In Haricharan Kurmi and another, v. State of Bihar (reported in AIR 1964 SC 1184), a constitution bench of the Apex Court has dealt with scope and effect of Section 30 of the Evidence Act at length. It has been observed that, it is clear that confession mentioned in Section 30 is not evidence as defined under Section 3 of the Evidence Act and in a sense the confession of co-accused can be described as evidence in generic sense. In this judgment, the Apex Court has quoted the observations made by Sir John Beaumont in Bhuboni Sahu v. The King (reported in AIR 1949 Privy Council 257 at page 260) which are as under :-

"a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in S.3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighted with the other evidence."

The Apex Court has observed in paras 12 and 16 as under :-

"As a result of the provisions contained in S.30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S.30, the fact remains that it is not evidence as defined by S.3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.

Thus the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necccessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. ILR 38 Cal 559 (588); AIR 1952 SC 159, Rel.on. AIR 1959 SC 1, Expl. Cri Appeals Nos. 554 and 556 of 1961 (Pat.) Reversed."

In view of this judgment of the Apex Court, it is not necessary to refer to the judgment of this Court in Rashid Gafoor Parkar and others v. State of Maharashtra (reported in 1984 JSCTL 277) on which also reliance was placed by learned Senior Counsel for the applicant, except that it may be necessary to refer that in this case undisputedly there was no other evidence except the confessional statements of the co-accused and in the facts and circumstances of the case, the charge framed was quashed.

23. In Mohd.Hussain Umar Kochra etc. v. K.S.Dalipsinghji and another (reported in AIR 1970 SC 45), the Apex Court has laid down that retracted confession made under Section 30 of the Evidence Act can be taken into consideration, but this confession can be used only in support of other evidence and cannot be made a foundation of a conviction. It cannot be used to support the evidence of other co-accomplices.

24. Reliance has also been placed by the Senior Counsel for the applicant on the judgment of this Court in Smt. Paru Mrgugesh Jaikrishna v. Assistant Collector of Customs, Preventive Deptt.Bombay and another (reported in 1988 Cri.L.J.963). In this case, a complaint was lodged by Customs Authorities under Customs Act against the accused for attempting to export foreign exchange outside limits of India. The learned Judge found that the only material as against the accused was the confessional statement of co-accused which, though relevant under Section 30 of the Evidence Act, was no evidence as contemplated in Section 3 of the Evidence Act and the only use to which it could be put was to lend assurance to the case of prosecution. There was some other material besides the confession of the co-accused but it was found that the said material was not sufficient. Accordingly, the issue of process was quashed.

25. In Sasi and another v. State of Kerala (reported in 2000(1) SCC 360), the Apex Court while dealing with offences under Section 20(a), (b)(i) and (ii) of the NDPS Act has held that confession under Section 30 made by a person as against the co-accused can be used only as a corroborative evidence and not a substantive evidence.

26. Learned Senior Counsel for the applicant has also placed reliance on Roy V.D. v. State of Kerala (reported in 2000(8) SCC 590) wherein it has been held where criminal proceedings initiated on the basis of illicit material collected on search and arrest which are per se illegal and vitiate the trial itself, the proceedings can be quashed by exercising power under Section 482 Cr.P.C. since continuance of such proceedings would amount to abuse of process of the Court.

27. I shall now refer to ruling upon which reliance has been placed by learned Special Public Prosecutor for respondent Nos. 1 and 3. He has relied upon Union of India. v. Ram Samujh and another (reported in 1999 (9) SCC 429) and has placed reliance on the following observations.

"The legislative mandate contained in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 which culminated in the incorporation of the amended Section 37 has to be adhered to and followed. In a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37(1)(b) are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Hence, the High Court's order has to be set aside."

28. Next ruling upon which reliance has been placed by him is Babua alias Tazmul Hossain v. State of Orissa (reported in 2001 ALL MR (Cri) 990). It is pertinent to note that in this case, the Apex Court has laid down that at the stage of consideration of the case for bail all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. If the Court cannot say that accused is not guilty of the offence if the allegations made in the charge are established, there will be no question of grant of bail.

29. In Intelligence Officer, Narcotics C. Bureau v. Sambhu Sonkar and another (reported in 2001 ALL MR (Cri) 1006) upon which also reliance has been placed by the learned Special Public Prosecutor. The question relating to bail restriction under Section 37 has been considered and it is held that the restriction under Section 37 would apply in a case where offence is punishable under Section 20(b)(i) for possession of Ganja punishable with maximum sentence of five years.

30. Learned APP has also relied upon Lal Singh v. State of Gujarat and another (reported in 2001 ALL MR (Cri) 1038) and reliance has been placed on the observations by the Apex Court that when there is confessional statement, it is not necessary for the prosecution to establish each and every link as confessional statement gets corroboration from the link which is proved by the prosecution and that the law requires establishment of such a degree of probability that a prudent man may on its basis, believe in the existence of the facts in issue. Dealing with the case under Section 16 of the TADA, it was found that the confessional statements were admissible in evidence and confession of co-accused can be relied upon.

31. Keeping the law on the subject in view, I have already observed that the confessional statements of Kantilal Jogani and Kasam Merchant cannot be used against the applicant as they are hit by section 30 of the Indian Evidence Act. Besides this, I do not find any evidence circumstantial or otherwise which can connect the applicant with the crime. Learned Special P.P. has relied upon the statement of the applicant recorded under Section 67 of the NDPS Act in which he has stated that he had contacted Kantilal Jogani at the instance of the Customs Department and that he was giving information from time to time to Customs Authorities. The Customs Authorities way back in their reply filed by respondent No.1 in Criminal Writ Petition No. 272 of 1997 filed by the applicant had stated that the applicant was their informer in connection with the seizure which was ultimately effected by the D.R.I. In fact, Commissioner of Customs Preventive M.G. Venugopalan in letter dated 29.01.1996 had written to Additional Chief Secretary/Chief Secretary with copy to Deputy Chief Minister (Home) that the applicant was informer in respect of the Mandrex seizure in this case and he was working with the gang with full knowledge of Bombay Customs Preventive. In this letter, it was also stated that the applicant was acting in close liaison with the Customs authorities to furnish intelligence relating to smuggling of contraband including Narcotic drugs. When one department of the Government and a responsible officer Commissioner of Customs says that the applicant was their informer in connection with the present seizure which ultimately had been effected by D.R.I. under the circumstances given in reply filed by respondent No.1 in Criminal Writ Petition No. 272 of 1997, the same cannot be just brushed aside. The evidence of Prashant Rathi as also the seizure panchnama dated 23.11.1995 do not in any manner connect the applicant with the crime. Learned Special P.P. has neither referred to any material nor has opposed the bail application on the ground that the accused is likely to commit any offence while on bail.

32. Taking all facts and circumstances into consideration, I am of the opinion that it can be said in case under consideration, that there are reasonable grounds for believing that the applicant is not guilty of the offences with which he has been charged in this complaint. Accordingly, I order that the applicant shall be released on bail upon execution of personal bond of Rs.1,00,000/- (rupees one lac) with one surety in the like amount to the satisfaction of Additional Sessions Judge, Amravati. The observations made in the order shall not in any manner influence the trial Court while dealing with the matter on merits.

Hamdast allowed.

Order according