Jammu, Feb 25: The High Court of J&K and Ladakh has granted bail to an accused in the Handwara narco-terror case after spending four and a half years in custody. A division bench comprising Justice Atul Sreedharan and Justice Rajesh Sekhri, while granting the bail to the accused in its order emphasised the constitutional right against self-incrimination and the requirement of informed consent for a confession to be valid under the law.
The accused was represented by senior advocates N Hariharan and Kamal Nijhawan, along with Advocates Umair A Andrabi and Tanisha. The appeal challenged an order of the trial court that denied bail to the accused, who was charged under the Narcotic Drugs and Psychotropic Substances Act (NDPS) and the Unlawful Activities (Prevention) Act (UAPA). The prosecution alleged that the accused had concealed a packet containing 3 kg of heroin at the behest of his brother. The contraband was later recovered based on his disclosure.The counsel for the accused argued that another co-accused, an NCB officer, had been granted bail by the Supreme Court due to delays in trial.
The prosecution, on the other hand, contended that the accused had knowledge of the heroin’s presence, citing his Section 27 Evidence Act memorandum as proof.
However, the court questioned the evidentiary value of the accused’s statement under Section 27, holding that such statements must be voluntary and informed. The bench underscored that using a confession obtained without proper safeguards would violate Article 20(3) of the Constitution, which protects individuals from self-incrimination.
The court observed that for a confession to be legally admissible, an accused must be fully aware of the consequences, including the possibility of conviction and the extent of punishment. The court pointed out that merely asking an accused if they are confessing voluntarily is inadequate. “The accused must be made aware of their legal rights and consequences before making a confession,” the court said.
The court noted that any confession in a police investigation must be recorded by a Judicial Magistrate under Section 164 of the Criminal Procedure Code (CrPC), ensuring the accused has access to legal counsel. The court clarified that while the recovery of contraband based on such statements is relevant, the self-incriminatory part of such a statement cannot be considered conclusive proof of guilt. The court asked the prosecution to present independent evidence proving that the accused had conscious possession of the heroin. The prosecution admitted that apart from the Section 27 statement, there was no independent evidence establishing the accused’s intent or knowledge. The ruling reinforces constitutional safeguards against self-incrimination and sets a precedent on the admissibility of statements under Section 27 of the Evidence Act.
