Excelsior Correspondent
JAMMU, Feb 25: A Division Bench of the Jammu & Kashmir and Ladakh High Court comprising Justice Atul Sreedharan and Justice Rajesh Sekhri has granted bail to an accused in the Handwara narco-terror case.
The accused was represented by Senior Advocates N Hariharan and Kamal Nijhawan, along with Advocates Umair A Andrabi and Tanisha. Notably, an NCB officer co-accused in the same case was granted bail by the Supreme Court earlier this month, was also represented by Advocates Umair A Andrabi, Tanisha and others.
While passing the order, the DB emphasized the constitutional right against self-incrimination and the requirement of informed consent for a confession to be valid under the law.
The appeal challenged a previous 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 DB stated 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. “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 DB added.
The DB reiterated 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 and 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.
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