Mahesh Bhagwati, J.
1. The challenge in this appeal is to the judgment dated 31st January, 1997 whereby, the Special Judge, N.D.P.S. Act Cases, Kota (Additional Sessions Judge, No. 2, Kota) has acquitted the accused-respondent Narendra S/o. Salig Ram in the offence under Section 8 read with Section 29 of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act 1985').
2. The prosecution story succinctly runs as under:
That on 27th May, 1989 at about 11:45 am PW-6 Ratan Lal Goria accompanied by officers of Preventive Party checked a Bus No. RNP 1378 of Rajasthan Roadways on Kota-Bundi road near Khanna Farm and found one person sitting on seat No. 26 who identified himself to be Teju S/o. Babul Lal. Teju was carrying a plastic bag on his lap. On suspicion, Shri Goria called Conductor and Driver of the bus and searched the plastic bag wherein 2.300 klgm opium was found. It is alleged that the accused Teju told the checking party that this plastic bag containing the said opium belonged to Narendra who was sitting on seat No. 17 in the bus. Shri Goria took two samples of opium each of 25 gms and duly sealed them. Shri Goria prepared a Panchnama Ex. P/l, seized the tickets of the accused Narendra and Teju vide memo Ex. P/2 and Ex. P/3 respectively, arrested the accused Narendra vide memo Ex. P/4 and the accused Teju vide memo Ex. P/5, recorded the statements of the witnesses, recorded the statements of the accused persons also, sent the samples for chemical examination and after usual investigation submitted the charge sheet against the accused-persons Teju and Narendra in the Court.
3. The accused Teju was charged for the offence under Section 8/18 and the co-accused Narendra was charged for the offence under Section 8/29 of the Act 1985, who did not plead guilty and claimed trial. In order to further its version, the prosecution has examined in all six witnesses. During the trial accused Teju absconded and the trial continued only against the appellant Narendra. He, in his explanation given under Section 313 of Cr.P.C. Claimed innocence and submitted that he did not know any Teju nor was he travelling with him nor he gave any statement to police. He has been falsely implicated. On completion of trial, the Special Judge, N.D.P.S. Act Cases, Kota did not find him guilty in the offence under Section 8 read with Section 29 of Act of 1985 and thus acquitted as indicated hereinabove.
4. Heard the submissions advanced by the learned Public Prosecutor for the Union of India, learned Counsel for the accused-respondent and with their assistance scanned the relevant material available on record.
5. Learned Counsel Shri Laxman Madnani appearing on behalf of Union of India has canvassed that the trial Court has ignored the confessional statement Ex. P/10 given by the accused Narendra before the Preventive Inspector PW.6 Shri Goria. He confessed before the Inspector that he was accompanying co-accused Teju to assist him in selling the said recovered opium. Shri Madnani has urged that the confessional statement of Narendra Ex. P/10 is voluntary and recorded under Section 67 of the Act 1985 and there is no reason not to rely upon this statement. The learned trial court has erred in not relying upon the statement Ex. P/10 and on the basis of this statement the accused Narendra deserves to be convicted. He has cited Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras : 1999 Cr.L.R. (SC) 443 : RLW 1999(2) SC 318 and Kanhaiyalal v. Union of India : 2008 Cr.L.R. (SC) 312 : 2008(2) RLW 1574 (SC) in support thereof.
6. Per contra, the learned Counsel for the accused-respondent has simply submitted that the impugned judgment of the lower court is perfectly legal, cogent and just. The confessional statement of the accused Narendra is not relevant and also not admissible in evidence and can never become the basis of conviction, as such the appeal deserves to be dismissed.
7. The facts situation emerging in the instant appeal is thus:
(i) no recovery has been made from the accused Narendra.
(ii) the opium weighing 2.30 klgm is found to have been recovered from the possession of accused Teju who is absconding.
(iii) PW.6 Rata Lal Goria recorded the confessional statement of Teju and Narendra.
(iv) The statement of Teju has not been exhibited in evidence, as such it is not admissible and cannot read against the co-accused Narendra.
(v) the said confessional statement Ex. P/10 is found to have been recorded under Section 67 of the Act 1985.
(vi) the learned trial Court has acquitted the accused-respondent on the ground that the confessional statement Ex. P/10 of Narendra is not admissible in evidence and no contraband article is found to have been recovered from his possession. Apart that, the accused Narendra is not proved to have associated the co-accused Teju in selling the contraband opium.
8. In the case of Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras : (1999) Cr.L.R. (SC) 443 : RLW 1999 (2) SC 318, it has been held that 'the confessional statement of the accused could be used against him if it was made by him voluntarily.'
9. But in the case of Kanhaiyalal v. Union of India : (2008) Cr.L.R. (SC) 312 : 2008(2) RLW 1574 (SC), the Hon'ble Apex Court has held that:
What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play.
10. Section 67 of the Act 1985 contemplates that:
67. Power to call for information, etc. -Any officer referred to in Section 42 who is authorised in this behalf by the Central Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,:
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provision of this Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(c) examine any person acquainted with the facts and circumstances of the case.
11. It is pertinent to note that in POTA and TADA Act an inquiry is conducted before filing a challan in the Court. Section 67 of the Act 1985 also envisages an inquiry to be made by the Officer authorised by the Central Government or the State Government as the case may be. It is true that any confessional statement made by an accused during an inquiry before his arrest is not hit by Section 24-27 of the Evidence Act but if that confessional statement is given by him after his arrest then it is tangibly hit by Section 24-27 of the Evidence Act and Article 20(3) of the Constitution of India.
12. In the instant appeal, it is not found as to when this confessional statement Ex. P/10 was recorded by PW-6 Shri Ratan Lal Goria, as it does not bear any date of recording. But, from its language it seems to have been recorded after the search, seizure of the contraband opium and arrest of the accused.
13. No opium or any contraband article is found to have been recovered from the possession of the accused Narendra. The confessional statement Ex.P/10 does not bear any date of its recording. It is not proved by the prosecution that the statement was voluntarily given by the accused Narendra. He, in his explanation under Section 313 of Cr.P.C. has stated that he never gave any statement to the police nor he knew any person in the name of Teju. He was not also traveling with him in the bus. The tickets seized by Mr. Goria vide memo Ex. P/2 and Ex. P/3 do not prove that the accused Narendra was travelling on any of these tickets. There is not even a shred of evidence about the abetment and assisting the accused Teju in sale of opium available on record on the basis of which the accused could have been convicted. The judgment of the learned trial court is cogent and well merited. It does not suffer from any infirmity, factual or legal. I am in full unison with the finding of acquittal arrived at by the trial Court and the impugned judgment calls for no interference.
14. For these reasons, the appeal filed by the Union of India through Central Narcotic Bureau, Kota being devoid of merits stands dismissed.