Officers Designated U/s 53 NDPS Act Can Exercise All Investigative Powers Under CrPC Including Power To File Charge-Sheet and Officers authorised To Investigate NDPS Cases Are 'Police Officers' And Confessional Statements Made To Them Are Not Admissible: SC
TOFAN SINGH V. STATE OF TAMIL NADU, CRIMINAL APPEAL NO.152 OF 2013 WITH CRIMINAL APPEAL NO. 1750 OF 2009, CRIMINAL APPEAL NO. 2214 OF 2009,CRIMINAL APPEAL NO. 827 OF 2010, CRIMINAL APPEAL NO. 835 OF 2011, CRIMINAL APPEAL NO. 836 OF 2011, CRIMINAL APPEAL NO. 344 OF 2013, CRIMINAL APPEAL NO. 1826 OF 2013CRIMINAL APPEAL NO. 433 OF 2014, SPECIAL LEAVE PETITION (CRL.) NO. 6338 OF 2015, CRIMINAL APPEAL NO. 77 OF 2015, CRIMINAL APPEAL NO. 90 OF 2017, CRIMINAL APPEAL NO. 91 OF 2017, SPECIAL LEAVE PETITION (CRL.) NO. 1202 OF 2017, October 29, 2020
The bench comprising of Justice R F Nariman, Justice Navin Sinha, and Justice Indira Banerjee held in a 2:1 majority that officers of the Central & State agencies appointed under Narcotic Drugs are police officers and therefore the 'confessional' statements recorded by them under Section 67 of NDPS Act are not admissible.
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 a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offense under the NDPS Act.
The Hon’ble Supreme Court has analyzed two main issues in the present case:
“1. Whether an officer “empowered under Section 42 of the NDPS Act” and/or “the officer empowered under Section 53 of the NDPS Act” are “Police Officers” and therefore statements recorded by such officers would be hit by Section 25 of the Evidence Act; and
2. What is the extent, nature, purpose and scope of the power conferred under Section 67 of the NDPS Act available to and exercisable by an officer under section 42 thereof, and whether power under Section 67 is a power to record confession capable of being used as substantive evidence to convict an accused?”
After considering several other judgments, the referral order states that a re-look into the ratio of Raj Kumar Karwal and Kanhaiyalal (Kanhaiyalal vs. Union of India) would be necessary, and has referred the matter to a larger Bench. It was held that the officer under Section 63 is not a police officer and thus the bar under Sections 24 and 27 of the Evidence Act cannot be attracted. It was further held in Kanhaiyalal the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person.
In Raj Kumar Karwal, the court had rejected the contention that an officer appointed under Section 53 of the Act, other than a police officer, is entitled to exercise 'all' the powers under Chapter XII of the Code, including the power to submit a report or charge-sheet under Section 173 of the Code. The Constitution Bench in Badku Joti Savant vs State Of Mysore, AIR 1991 SC 45 had observed that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Section 173, he cannot be described to be a 'police officer.
The court referring to Section 36A(d) has observed that,
“This clause makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI, the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned government. Needless to say that such a complaint would have to be under Section 190 of the Code”
The Counsel, Mr. Jain argued that the provisions of Section 67 of the Act cannot be interpreted in the manner in which the provisions of Section 108 of the Customs Act or Section 14 of the Excise Act had been interpreted by a number of judgments and there is a qualitative difference between the two sets of provisions. Insofar as Section 108 of the Customs Act is concerned, it gives power to the customs officer to summon persons “to give evidence” and produce documents. Identical power is conferred upon the Central Excise Officer under Section 14 of the Act. However, the wording to Section 67 of the NDPS Act is altogether different. This difference has been pointed out by the Andhra Pradesh High Court in Shahid Khan v. Director. The counsel, Mr. Jain also argued that the absence of “reasons to believe” would render entry, search, seizure or arrest, Sections 41(2) 42, 43 and 44 of the NDPS Act bad in law and also expose the officer concerned to disciplinary action as also punishment under Section 58 for a “vexatious” entry, search, seizure or arrest.
Section 67 of the NDPS Act provides that any officer referred to in Section 42, who is duly authorized on this behalf by the Central or State Government, may during the course of any inquiry:
(i) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(ii) require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(iii) examine any person acquainted with the facts and circumstances of the case.
In the NDPS Act, the Legislature appears to have consciously intended “inquiry” and “investigation” to convey a different meaning. Accordingly, Section 53A refers to a statement before any officer empowered under Section 53 for the investigation of offences during the course of any inquiry or proceeding by such officer. The difference between the terms “investigation” and “inquiry” is, however, not really material to the issue of whether an officer invested under Section 53 with the powers of the Officer in Charge of a Police Station for investigation of an offence under the NDPS Act, is a police officer within the meaning of Section 25 of the Evidence Act or whether a statement made in an inquiry as contemplated in Section 67, can be used against an accused offender in trail of an offence under the NDPS act.
Counsel appearing in support of the appeals have made general arguments with regard to the differences between provisions of the Central Excise Act or the customs Act with the NDPS Act. The provisions of the Cr.P.C also do not apply to an inquiry/investigation under the NDPS Act except to the limited extent provided in Section 50(5) and 51. Section 173 of the Cr.P.C has not been made applicable to the NDPS Act.
Justice RF Nariman and Justice Navin Sinha pointed out,
Take the anomalous position that would arise as a result of the judgment in Raj Kumar Karwal.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 69 CrPC to release the accused, there would be a major lacuna in the NDPS Act which cannot be filled.(Para 139)
Justice Indira Banerjee gave a dissenting opinion in the case Tofan Singh v State of Tamil Nadu. On the question whether an investigating officer invested with the powers of Officer in Charge of a police station for the purpose of investigation of an offence under a special Act like the NDPS Act is empowered to file a police report under Section 173 of the Cr.P.C, the judge said that the constitution bench judgments have held that the power to file a police report under Section 173 of Cr.P.C has to be conferred by statute.
“I am of the view that the Judgment of this Court in Raj Kumar Karwal(supra), which has reaffirmed the verdict of three Constitution Benches does not require reconsideration. Nor does Kanhaiyalal(supra) require reconsideration”.(Para 271)
While the court held with a 2:1 majority with the judges, Justice Fali Nariman and Justice Navin Sinha stating,
We answer the reference by stating: (i) 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. (ii) That 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)
View/Download Judgment: Tofan Singh Vs. State of Tamil Nadu Lalitha Sarvani. A
