SC: Statement recorded u/s 67 of NDPS Act can’t be used as a confessional statement in trial

The Hon’ble Supreme Court, on 29th October 2020, in the matter of Tofan Singh v. State of Tamil Nadu pronounced that the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act. Any confessional statement made to officers who are invested with powers under section 53 of the NDPS Act would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. A statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. 

The Hon’ble Supreme Court observed that:

The NDPS Act is to be construed in the backdrop of Article 20(3) and Article 21, Parliament being aware of the fundamental rights of the citizen and the judgments of this Court interpreting them, as a result of which a delicate balance is maintained between the power of the State to maintain law and order, and the fundamental rights chapter which protects the liberty of the individual. Several safeguards are thus contained in the NDPS Act, which is of an extremely drastic and draconian nature, as has been contended by the counsel for the Appellants before us. Also, the fundamental rights contained in Articles 20(3) and 21 are given pride of place in the Constitution. After the 42nd Amendment to the Constitution was done away with by the 44th Amendment, it is now provided that even in an Emergency, these rights cannot be suspended – see Article 359(1). The interpretation of a statute like the NDPS Act must needs be in conformity and in tune with the spirit of the broad fundamental right not to incriminate oneself, and the right to privacy, as has been found in the recent judgments of this Court. (Para 27)

It is important to emphasise that the interpretation of the term “accused” in section 25 of the Evidence Act is materially different from that contained in Article 20(3) of the Constitution. The scope of the section is not limited by time – it is immaterial that the person was not an accused at the time when the confessional statement was made. (Para 31)

Whereas a formal accusation is necessary for invoking the protection under Article 20(3), the same would be irrelevant for invoking the protection under section 25 of the Evidence Act. (Para 33)

Section 26 of the Evidence Act extends the protection to confessional statements made by persons while “in the custody” of a police-officer, unless it be made in the immediate presence of a Magistrate. “Custody” is not synonymous with “arrest” – custody could refer to a situation pre-arrest. In fact, section 46 of the CrPC speaks of “a submission to the custody by word or action”, which would, inter alia, refer to a voluntary appearance before a police officer without any formal arrest being made. (Para 34)

The interplay between the CrPC and the provisions of the NDPS Act is contained in several provisions. It will be noticed that the CrPC has been expressly excluded when it comes to suspension, remission or commutation in any sentence awarded under the NDPS Act – see section 32A. Equally, nothing contained in section 360 of the CrPC or in the Probation of Offenders Act, 1958 is to apply to a person convicted of an offence under the NDPS Act, subject to the exceptions that such person is under 18 years of age, and that that offence only be punishable under section 26 or 27 of the NDPS Act – see section 33. (Para 37)

On the other hand, the CrPC has been made expressly applicable by the following sections of the NDPS Act: section 34(2), which refers to the form of a security bond; section 36B, which refers to the High Court’s powers in appeal and revision; section 50(5), which refers to searching a person without the intervention of a Gazetted Officer or a Magistrate; and section 51, which deals with warrants, arrests, searches and seizures made under the Act. Equally, the CrPC has been applied with necessary modifications under section 36A(1)(b), when it comes to authorising the detention of a person in custody for a period beyond fifteen days; section 37(1)(b), which contains additional conditions for the grant of bail in certain circumstances; and section 53A, which are exceptions engrafted upon statements made in writing under sections 161, 162 and 172 of the CrPC. Read with sections 4(2) and 5 of the CrPC, the scheme of the NDPS Act seems to be that the CrPC is generally followed, except where expressly excluded, or applied with modifications. (Para 38)

Undoubtedly, the NDPS Act is a comprehensive legislation which makes provisions for exercising control over narcotic drugs and psychotropic substances, at the heart of which is the power vested in various officers to investigate offences under the Act, so as to prevent and punish the same against offenders being, inter alia, organised gangs of smugglers who indulge in what is considered by Parliament to be a menace to society. (Para 40)

This itself refers to the Act being a “stringent” measure to combat the menace of crimes relatable to drugs and psychotropic substances. Under Chapter IV, which deals with “Offences and Penalties”, sections 15-24 speak of various drugs and psychotropic substances, in which the golden thread running through these sections is that where the contravention involves “small quantity” as defined, there can be a rigorous imprisonment for a term that may extend to one year, or a fine that may extend to ten thousand rupees or both; where the contravention involves an intermediate quantity, i.e. between “small” and “commercial” quantity, with rigorous imprisonment that may extend to ten years and with fine that may extend to one lakh rupees; and where the contravention involves “commercial quantity” as defined, with rigorous imprisonment for a minimum of ten years but which may extend to twenty years, and also be liable to a fine which shall not be less than one lakh, but which may extend to two lakhs – the court, for reasons to be recorded, is also given the power to impose a fine exceeding two lakhs. Under sections 28 and 29, punishments for attempts to commit offences, and for abetment and criminal conspiracy, are then set out. An extremely important section is section 30, where even preparation to commit an offence is made an offence . Under section 31, where a person is already convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under the NDPS Act, and is subsequently convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, an offence punishable under the NDPS Act, the punishment then goes to up to a term which may extend to one and one-half times the maximum term of imprisonment, and shall also be liable to a fine which shall extend to one and one-half times of the maximum amount of fine. In certain circumstances under section 31A, the death penalty is also awarded. Under section 32A, no sentence awarded under the NDPS Act, other than a sentence under section 27, shall be suspended, remitted or commuted. Equally, we have seen how under section 33, the Probation of Offenders Act, 1958 does not apply where the offender is above 18, or if the offence is for offences other than those under sections 26 and 27 of the Act. (Para 41)

Several presumptions are also made under the NDPS Act in which the burden of proof is reversed, now being on the accused. They are all to be found in three sections – sections 35, 54 and 66. (Para 42)

Under section 40, where a person is convicted of any of the offences punishable under the Act, the court may, in addition, publish at the expense of such person – in a newspaper or other manner – the factum of such conviction. The NDPS Act is said to be in addition to the Customs Act, 1962 and the Drugs and Cosmetics Act, 1940, so that, notwithstanding that offences may be made out under those Acts, offences under the NDPS Act will continue to be tried as such – see sections 79 and 80. (Para 44)

Given the stringent nature of the NDPS Act, several sections provide safeguards so as to provide a balance between investigation and trial of offences under the Act, and the fundamental rights of the citizen. (Para 45)

From section 42 of the NDPS Act it is clear that only when the concerned officer has “reason to believe” from personal knowledge or information given by any person and taken down in writing that an offence has been committed, that the concerned officer may, only between sunrise and sunset, enter, search, seize drugs and materials, and arrest any person who he believes has committed any offence. By the first proviso, this can be done only by an officer not below the rank of sub-inspector. Under sub-section (2) in addition, where the information in writing is given, the officer involved must send a copy thereof to his immediate official superior within seventy-two hours. It is important here to contrast “reason to believe” with the expression “reason to suspect”, which is contained in section 49 of the NDPS Act. (Para 46)

Section 57 then speaks of a person making an arrest or seizure having to make a full report of all the particulars of such arrest or seizure to his immediate official superior within forty-eight hours. Equally, under section 57A, whenever any officer notified under section 53 makes an arrest or seizure under the Act, the officer shall make a report of the illegally acquired properties of such person to the jurisdictional competent authority within ninety days of the arrest or seizure. (Para 53)

Section 58 more than any other provision, makes it clear that a person’s privacy is not to be trifled with, because if it is, the officer who trifles with it is himself punishable under the provision. Under section 63, which contains the procedure in making confiscations, the first proviso to sub- section (2) makes it clear that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence which he produces in respect of his claim. (Para 54)

It is important to note that statutes like the NDPS Act have to be construed bearing in  mind the fact that the severer the punishment, the greater the care taken to see that the safeguards provided in the statute are scrupulously followed. (Para 55)

The marginal note to the Section 67 of the NDPS Act indicates that it refers only to the power to “call for information, etc.”. A marginal note is an important internal tool for indicating the meaning and purpose of a section in a statute, as it indicates the “drift” of the provision. (Para 59)

Secondly, it is only an officer referred to in section 42 who may use the powers given under section 67 in order to make an “enquiry” in connection with the contravention of any provision of this Act. The word “enquiry” has been used in section 67 to differentiate it from “inquiry” as used in section 53A, which is during the course of investigation of offences. As a matter of fact, the notifications issued under the Act . Soon after the Act came into force, which will be referred to later in the judgment, specifically speak of the powers conferred under section 42(1) read with section 67. This is an important executive reading of the NDPS Act, which makes it clear that the powers to be exercised under section 67 are to be exercised in conjunction with the powers that are delineated in section 42(1). (Para 60)

The officer referred to in section 42 is given powers of entry, search, seizure and arrest without warrant, with the safeguards that have been pointed out hereinabove in this judgment. The first safeguard is that such officer must have “reason to believe”, which as has been noted, is different from mere “reason to suspect”. It is for this reason that such officer must make an enquiry in connection with the contravention of the provisions of this Act, for otherwise, even without such enquiry, mere suspicion of the commission of an offence would be enough. It is in this enquiry that he has to call for “information” under sub-clause (a), which “information” can be given by any person and taken down in writing, as is provided in section 42(1). Further, the information given must be for the purpose of “satisfying” himself that there has been a contravention of the provisions of this Act, which again goes back to the expression “reason to believe” in section 42. This being the case, it is a little difficult to accept Shri Lekhi’s argument that “enquiry” in section 67 is the same as “investigation”, which is referred to in section 53. (Para 61)

By virtue of section 2(xxix) of the NDPS Act, this definition becomes applicable to the use of the expression “investigation” in section 53 of the NDPS Act. It is important to notice that it is an inclusive definition, by which, “evidence” is collected by a police officer or a person authorised by the Magistrate. The “enquiry” that is made by a section 42 officer is so that such officer may gather “information” to satisfy himself that there is “reason to believe” that an offence has been committed in the first place. (Para 63)

This becomes even clearer when section 52(3) of the NDPS Act is read. Under section 52(3), every person arrested and article seized under sections 41 to 44 shall be forwarded without unnecessary delay either to the officer-in-charge of the nearest police station, who must then proceed to “investigate” the case given to him, or to the officer empowered under section 53 of the NDPS Act, which officer then “investigates” the case in order to find out whether an offence has been committed under the Act. It is clear, therefore, that section 67 is at an antecedent stage to the “investigation”, which occurs after the concerned officer under section 42 has “reason to believe”, upon information gathered in an enquiry made in that behalf, that an offence has been committed. (Para 64)

Equally, when we come to section 67(c) of the NDPS Act, the expression used is “examine” any person acquainted with the facts and circumstances of the case. The “examination” of such person is again only for the purpose of gathering information so as to satisfy himself that there is “reason to believe” that an offence has been committed. This can, by no stretch of imagination, be equated to a “statement” under section 161 of the CrPC which would include the making of a confession, being a sub-species of “statement”. (Para 65)

Under section 163(1) of the CrPC, no inducement, threat or promise, as has been mentioned in section 24 of the Evidence Act, can be made to extort such statement from a person; and finally, if a confession is to be recorded, it can only be recorded in the manner laid down in section 164 i.e. before a Magistrate, which statement is also to be recorded by audio-video electronic means in the presence of the Advocate of the person accused of an offence. This confession can only be recorded after the Magistrate explains to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him – see section 164(2) of the CrPC. The Magistrate is then to make a memorandum at the foot of the record that he has, in fact, warned the person that he is not bound to make such confession, and that it may be used as evidence against him – see section 164(4) of the CrPC. Most importantly, the Magistrate is empowered to administer oath to the person whose statement is so recorded – see section 164(5) of the CrPC. (Para 67)

Section 67 of the NDPS Act would then have to be “read down” so as to conform to fundamental rights. (Para 68)

Sections 53 and 53A of the NDPS Act, when read together, would make it clear that section 53A is in the nature of an exception to sections 161, 162 and 172 of the CrPC. This is for the reason that section 53(1), when it invests certain officers or classes of officers with the power of an officer in charge of a police station for investigation of offences under the NDPS Act, refers to Chapter XII of the CrPC, of which sections 161, 162 and 172 are a part. First and foremost, under section 162(1) of the CrPC, statements that are made in the course of investigation are not required to be signed by the person making them – under section 53A they can be signed by the person before an officer empowered under section 53. Secondly, it is only in two circumstances [under section 53A(1)(a) and (b)] that such a statement is made relevant for the purpose of proving an offence against the accused: it is only if the person who made the statement is dead, cannot be found, is incapable. (Para 72)

It is important to remember that an officer-in-charge of a police station, when he investigates an offence, begins by gathering information, in the course of which he may collect evidence relating to the commission of the offence, which would include search and seizure of things in the course of investigation, to be produced at the trial. Under the scheme of the NDPS Act, it is possible that the same officer who is authorised under section 42 is also authorised under section 53. (Para 78)

The very person who initiates the detection of crime, so to speak, can also investigate into the offence – there being no bar under the NDPS Act for doing so. This is a far cry from saying that the scheme of the NDPS Act leads to the conclusion that a section 67 confessional statement, being in the course of investigation, would be sufficient to convict a person accused of an offence. (Para 82)

There could be a situation in which a section 42 officer, as designated, is different from a section 53 officer, in which case, it would be necessary for the section 42 officer to first have “reason to believe” that an offence has been committed, for the purpose of which he gathers information, which is then presented not only to his superior officer under section 42(2), but also presented to either an officer-in-charge of a police station, or to an officer designated under section 53 – see section 52(3). (Para 83)

Whether the officer designated under section 53 of the NDPS Act can be said to be a “police officer” so as to attract the bar contained in section 25 of the Evidence Act.

Where limited powers of investigation are given to officers primarily or predominantly for some purpose other than the prevention and detection of crime, such persons cannot be said to be police officers under section 25 of the Evidence Act. (Para 126)

Where a person who is not a police officer properly so-called is invested with all powers of investigation, which culminates in the filing of a police report, such officers can be said to be police officers within the meaning of section 25 of the Evidence Act, as when they prevent and detect crime, they are in a position to extort confessions, and thus are able to achieve their object through a shortcut method of extracting involuntary confessions. (Para 126)

Even if the NDPS Act is to be construed as a statute which regulates and exercises control over narcotic drugs and psychotropic substances, the prevention, detection and punishment of crimes related thereto cannot be said to be ancillary to such object, but is the single most important and effective means of achieving such object. This is unlike the revenue statutes where the main object was the due realisation of customs duties and the consequent ancillary checking of smuggling of goods (as in the Land Customs Act, 1924, the Sea Customs Act, 1878 and the Customs Act, 1962); the levy and collection of excise duties (as in the Central Excise Act, 1944); or as in the Railway Property (Unlawful Possession Act), 1966, the better protection and security of Railway property. Second, unlike the revenue statutes and the Railway Act, all the offences to be investigated by the officers under the NDPS Act are cognizable. Third, that section 53 of the NDPS Act, unlike the aforesaid statutes, does not prescribe any limitation upon the powers of the officer to investigate an offence under the Act, and therefore, it is clear that all the investigative powers vested in an officer in charge of a police station under the CrPC – including the power to file a charge-sheet – are vested in these officers when dealing with an offence under the NDPS Act. This is wholly distinct from the limited powers vested in officers under the aforementioned revenue and railway statutes for ancillary purposes. Also, importantly, none of those statutes recognised the power of the State police force to investigate offences under those Acts together with the officers mentioned in those Acts, as is the case in the NDPS Act. No question of manifest arbitrariness or discrimination on the application of Article 14 of the Constitution of India would therefore arise in those cases, unlike cases which arise under the NDPS Act. (Para 132)

What is clear, therefore, is that the designated officer under section 53, invested with the powers of an officer in charge of a police station, is to forward a police report stating the particulars that are mentioned in section 173(2) CrPC. Because of the special provision contained in section 36A(1) of the NDPS Act, this police report is not forwarded to a Magistrate, but only to a Special Court under section 36A(1)(d). (Para 137)

It is obvious that section 36A(1)(d) is inconsistent with section 2(d) and section 190 of the CrPC and therefore, any complaint that has to be made can only be made under section 36A(1)(d) to a Special Court, and not to a Magistrate under section 190. Section 36A(1)(d) specifies a scheme which is completely different from that contained in the CrPC. Whereas under section 190 of the CrPC it is the Magistrate who takes cognizance of an offence, under section 36A(1)(d) it is only a Special Court that takes cognizance of an offence under the NDPS Act. Secondly, the “complaint” referred to in section 36A(1)(d) is not a private complaint that is referred to in section 190(1)(a) of the CrPC, but can only be by an authorised officer. Thirdly, section 190(1)(c) of the CrPC is conspicuous by its absence in section 36A(1)(d) of the NDPS Act – the Special Court cannot, upon information received from any person other than a police officer, or upon its own knowledge, take cognizance of an offence under the NDPS Act. Further, a Special Court under section 36A is deemed to be a Court of Session, for the applicability of the CrPC, under section 36C of the NDPS Act. A Court of Session under section 193 of the CrPC cannot take cognizance as a Court of original jurisdiction unless the case has been committed to it by a Magistrate. However, under section 36A(1)(d) of the NDPS Act, a Special Court may take cognizance of an offence under the NDPS Act without the accused being committed to it for trial. It is obvious, therefore, that in view of section 36A(1)(d), nothing contained in section 190 of the CrPC can be said to apply to a Special Court taking cognizance of an offence under the NDPS Act. (Para 137)

Also, the officer designated under section 53 by the Central Government or State Government to investigate offences under the NDPS Act, need not be the same as the officer authorised by the Central Government or State Government under section 36A(1)(d) to make a complaint before the Special Court. As a matter of fact, if the Central Government is to invest an officer with the power of an officer in charge of a police station under sub-section (1) of section 53, it can only do so after consultation with the State Government, which requirement is conspicuous by its absence when the Central Government authorises an officer under section 36A(1)(d). Also, both section 53(1) and (2) refer to officers who belong to particular departments of Government. Section 36A(1)(d) does not restrict the officer that can be appointed for the purpose of making a complaint to only an officer belonging to a department of the Central/State Government. There can also be a situation where officers have been designated under section 53 by the Government, but not so designated under section 36A(1)(d). It cannot be that in the absence of the designation of an officer under section 36A(1)(d), the culmination of an investigation by a designated officer under section 53 ends up by being an exercise in futility. (Para 138)

Suppose a designated officer under section 53 of the NDPS Act investigates a particular case and then arrives at the conclusion that no offence is made out. Unless such officer can give a police report to the Special Court stating that no offence had been made out, and utilise the power contained in section 169 CrPC to release the accused, there would be a major lacuna in the NDPS Act which cannot be filled. (Para 139)

Section 59 of the NDPS Act is an important pointer to when cognizance of an offence can take place only on a complaint, and not by way of a police report. By section 59(3), both in the case of an offence under section 59(1) [which is punishable for a term which may extend to one year] or in the case of an offence under section 59(2) [which is punishable for a term which shall not be less than 10 years, but which may extend to 20 years], no Court shall take cognizance of any offence under section 59(1) or (2), except on a complaint in writing made with the previous sanction of the Central Government, or, as the case may be, the State Government. Thus, under section 59, in either case i.e. in a case where the trial takes place by a Magistrate for an offence under section 59(1), or by the Special Court for an offence under section 59(2), cognizance cannot be taken either by the Magistrate or the Special Court, except on a complaint in writing. This provision is in terms markedly different from section 36A(1)(d), which provides two separate procedures for taking cognizance of offences made out under the NDPS Act. (Para 143)

The officer who is designated under section 53 can, by a legal fiction, be deemed to be an officer in charge of a police station, or can be given the powers of an officer in charge of a police station to investigate the offences under the NDPS Act. Whether he is deemed as an officer in charge of a police station, or given such powers, are only different sides of the same coin – the aforesaid officer is not, in either circumstance, a police officer who belongs to the police force of the State. To concede that a deeming fiction would give full powers of investigation, including the filing of a final report, to the designated officer, as against the powers of an officer in charge of a police station being given to a designated officer having only limited powers to investigate, does not stand to reason, and would be contrary to the express language and intendment of section 53(1). (Para 145)

Further, if the distinction between police officer as narrowly defined and the officers of the Narcotics Control Bureau is something that is to be stressed, then any interpretation which would whittle down the fundamental rights of an accused based solely on the designation of a particular officer, would fall foul of Article 14, as the classification between the two types of officers would have no rational relation to the object sought to be achieved by the statute in question, which is the prevention and detection of crime. (Para 146)

Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India. (Para 152)

That the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. (Para 155(i))

A statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. (Para 155(ii))

Copy of judgement:Judgement_29-Oct-2020

-Adv. Tushar Kaushik

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