Confession is not substantive evidence against co-accused, reiterates Supreme Court

The Supreme Court has reiterated that confession of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused in the absence of specific provision in law to that effect. It can at best be used or utilized in order to lend assurance to the Court..In the absence of any substantive evidence, it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused..The judgment was delivered by a Bench of Justices AM Sapre and UU Lalit in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)..This case was an appeal challenging the correctness of Judgment passed by the High Court of Punjab and Haryana by which it had affirmed the conviction of the appellant for the offences punishable under Section 21(c) read with Section 29 of the NDPS Act..The accused were arrested after they were found to be in possession of heroin. The prosecution, in support of its case, examined four witnesses. After hearing submissions, the trial court convicted and sentenced all three accused. The appellant was convicted under Section 21(c) read with Section 29 of the NDPS Act and was sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs.1 lakh. Similar orders for conviction and sentence were recorded against other two accused namely Raj Kumar @ Raju and Surinder Pal Singh. All three convicted accused preferred appeals..As regards the appellant, it was observed by the High Court that he was specifically named by co-accused Raj Kumar @ Raju and Surinder Pal Singh in their statements. Apart from such statements nothing was produced on record to indicate the involvement of the appellant..The High Court, however, found that the case against the appellant was made out and affirmed the order of conviction as recorded against the appellant but reduced the sentence to rigorous imprisonment for a period of 10 years and to a fine of Rs.1 lakh..This was challenged by the appellant in Supreme Court..Senior Advocate Jayant Bhushan appearing for the appellant contended that that apart from the so-called statements of co-accused Raj Kumar @ Raju and Surinder Pal Singh, there was nothing against the appellant and that he was neither arrested at the site nor was the contraband material in any way associated with him..Additional Solicitor General Maninder Singh appearing for the respondent, however, supported the judgment of conviction and sentence rendered against the appellant. He placed on record call data reports showing that around the time when the co-accused was arrested, the appellant was in touch with a person named Chaudhary from Dubai..He, however, accepted that apart from the statements of the co-accused there was nothing to link the appellant with said convicted accused. The call data reports also did not indicate that around the time when co-accused were apprehended, the appellant was in touch with either of them..The Court proceeded to consider whether the confession of a co-accused under Section 67 of the NDPS Act can be relied upon against another co-accused when there is no specific provision to that effect in the Act..It noted that in a statute like Terrorist and Disruptive Activities Act, 1987, there is a specific provision (Section 15) which makes confession of a co-accused admissible against other accused in certain eventualities. However, there is no such similar or identical provision in the NDPS Act..The matter, therefore, has to be seen in the light of the law laid down by the Supreme Court as regards general application of a confession of a co-accused as against other accused, it noted..It then proceeded to rely on two judgements wherein it was categorically held that confession cannot be treated as substantive evidence against a co-accused person..The first was the case of Kashmira Singh v. State of Madhya Pradesh which was approved by a Constitution Bench of the Supreme Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar. In the latter case, it was observed,.“As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person.”.The Court observed that the law laid down above has always been followed by the Supreme Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused..“On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused.”.The Court, therefore, allowed the appeal and set aside the conviction..Read the judgment below.