Jammu and Kashmir High Court: A Division Bench of Sanjay Dhar and Rajesh Bindal, JJ. while dismissing the present application seeking leave to appeal, said, “…the non-applicant cannot be convicted on the statement of co-accused recorded under Section 67 of the NDPS Act, as the same cannot be used as a confessional statement being barred under the provision of Section 25 of the Evidence Act.”
Background
Through the instant application, the applicant; Narcotics Control Bureau (NCB) seeks leave to file an appeal against the judgment dated 11-11-2019 passed by the Principal Sessions Judge, Kathua (“Special Court”) whereby the non-applicant Rafi Ahmed has been acquitted of the charges for the commission of offences under Sections 8, Section 21, Section 27, Section 28 of Narcotic Drugs and Psychotropic Substances Act, 1985.
Observation
Court placed reliance over the case of, Toofan Singh v. State of Tamil Nadu, 2020 SCC OnLine SC 882, wherein the Court said, “… (i) 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.
(ii) 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”.
Decision
Dismissing the present application, the Court remarked, “…the learned Special Court has rightly acquitted the non-applicant of the charges leveled against him. The law does not allow the State to file an appeal against an order of acquittal under Section 417 CrPC. The State has to seek leave to file an appeal.”[Union of India v. Rafi Ahmed, 2020 SCC OnLine J&K 643, decided on 15-12-2020]
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