NOOR AGA v. STATE OF PUNJAB & Anr.

3.2 The High Court should have considered the ques tion having regard to the stand taken by the appella"t that ' the confessions made by him were under threat and dis- C tress and not made voluntarily. Only because certain per sonal facts known to him were written, the same by itself would not lead to the conclusion that they were free and voluntary. [Para 90] [428-C]

3.3 Clause (3) of Article 20 of the Constitution pro- vides that no person accused of any offence shall be com pelled to be a witness against himself. Any confession made under Section 108 of the Customs Act must give way to Article 20(3) wherefor there is a conflict between the two.[Para 91] [428-D,E] D E

3.4 A retracted confessional statement may be re lied upon but a rider must be attached thereto namely if it is made voluntarily. The burden of proving that such a confession was made voluntarily would, thus, be on the F prosecution. [Para 91] [428-E]

3.5 The ·extent of right to a fair trail of an accused must be determined keeping in view the fundamental rights as adumbrated under Article 21 of the Constitution of India as also the International Convention and Cov- G enants chartered in Human Rights. Criminal justice deliv ery system prevailing in India lacks mechanisms to rem edy systemic violations of the accused's core constitu tional rights which include the right to effective assistance of counsel, the right to have exculpatory evidence dis- H 388 SUPREME COURT REPORTS (2008] 10 S.C.R. A closed, and the right to be free from suggestive· eyewit ness identifications, coerced custodial interrogation and the fabrication of evidence. (Para 94] (430-A,B,C] Aggregation in Criminal Lawby Brandon L. Garrett April 2007 California Law Review Vol. 95 No.2 page 385 at 393 - referred to. 8

3.6 When, however, the custom officers exercise their power under Customs Act, it is not exercising i~ power as an officer to check smuggling .of goods; .it acts for the c purpose of detection of crime and bringing an accused to book. [Para 95] [430-D] State of Punjab v. Harkat Ram AIR 1962 SC 276- re ferred to D

7 Section 25 of the Evidence Act was enacted to put a stop to the extortion of confession, by taking away from the police officers as the advantage ·of proving such exforted confession during the trial of accused persons. [Para 97] (431-F,G] E Queen Empress v. Babula/ ILR (1884) 6 All. 509 - referred to.

3.8 NDPS Act is a complete code by itself. The cus toms .officers have been clothed with the powers of po lice officers under NDPS Act. It does not, therefore, deal only with a matter of imposition of, penalty or an order of F confiscation of the properties under the Act but also with the offences having serious consequences. Section 53 of NDPS Act empowers the customs officers with the pow ers of the Station House Officers. An officer invested with the power of a police officer by reason of a special stat- G ute in terms of sub-section (2) of Section 53 would, thus, be rleemed to be police officers and for the said purposes of Section 25 of Evidence Act shall be applicable. A legal fiction must be given its fult effect. [Paras 98, 99and 100] (431-G, 432-A,B,C] . H J. NOOR AGA v. STATE OF PUNJAB & ANR. 389 UCO Bank and Anr. v. Rajinder Lal Capoor 2008 (6) A SCALE 1 - referred to.

3.9 Section 53A of NDPS Act makes such a statement relevant for the purposes of the said Act. The observa tions of the High Court that confession can be the sole basis of conviction in view of Section 108 of the Customs 8 Act, thus, appear to be incorrect. the provisions of the Customs Act cannot be applied to seek conviction there under. [Paras 101 and 103] [432-0,G] Alok Nath Dutta v. State of West Bengal 2006 (13) , c SCALE 467; Pon Adithan v. Deputy Director, Narcotics Con trol Bureau, Madras 1999 (6) SCC 1 - relied on. Balkrishna Chhaganlal Soni v. State of West Bengal 197 4 , (3) SCC 567; Babubhai Udesinh Parmar v. State of Gujarat, 2006 (12) SCC 268 - referred to. D • 1-

3.10 A search and seizure or an arrest made for the purpose of proceeding against a person under the Act cannot be different only because in one case the author- ' ity was appointed under the Customs Act and in the other under another. What is relevant is the purpose for which E such arrest or search and seizure is made and investiga tion is carried out. The law applicable in this behalf must be certain and uniform. [Para 106] [433-F,G]

3.11 Even otherwise Section 1388 of Customs Act ; F must be read as a provision containing certain important features, namely: (a) There should be in the first instance statement made and signed by a person before a compe tent custom official. (b) It must have been made during the course of enquiry and proceedings under the Cus- G toms Act. [Para 107] [433-G, 434-A,B]

3.12 Confessional statement of an accused, therefore, cannot be made use of in any manner under Section 1388 of the Customs Act. Even otherwise such an evidence is considered to be of weak nature. [Para 108] [434-F,G] · H j "- \ ;· 1· 390 SUPREME COURT REPORTS [2008] 10 S.C.R. A Gopal Govind Chogale v. Assistant Collector of Central Excise and Anr. 1985 (2) Born CR 499 - referred to.

4.1 There are a large number of discrepa'1cies in the treatment and disposal of the physical evidence. there are contradictions in the statements of official witn"esses. 8 Non-examination of independent witnesses and the na t1.:1re of confession and the circumstances of the record ing of such confession do 11ot lead to the conclusion of the appellant's guilt. Finding on the discrepancies al though if individually examined may not be fatal to the C case of the prosecution but if cumulative view of the sce nario is taken, the prosecution's case must be held to be lacking in credibility. [Para 151) [452-D,E,F,G] 0

4.2 The cardboard carton was not produced in court being allegedly missing. No convincing explanation was rendered in that behalf. The inference was drawn only on the basis of a mere assertion of the witness without any corroboration. No explanation has been given as to what happened to the container. Its absence significantly un dermines th~ case of the prosecution. It reduces the evi- E dentiary value of the statements made by the witnesses referring the fact of recovery of the contraband therefrom. [Para 110 and 111) [435-D, 436-A,C] p

4.3 Preservance of original wrappers comes within the purview of the .direction issued in terms of Section 3.1 of the Standing Order No. 1 of 1989. The guidelines such as those presen't in the Standing Order cannot be blatantly floµted _and substantial compliance therewith must be in sisted upon for so that sanctity of physical evidence in G such cases remains intact. Clearly, there has been no sub stantial compliance of these guidelines by the investigat ing authority which leads to drawing of. an adverse infer en.ce against them to the effect that had such evidence been produced, the same would have gone against the H prosecution. [Paras 112 and 117] [436-D, 438-G, 439-A] NOOR AGA v. STATE OF PUNJAB & ANR. 391 Mani Shankar v. Union of India and Anr 2008 (3) SCC. A