Judgement Summary

Toofan Singh v State of Tamil Nadu

Coram – Nariman, Navin Sinha, Indira Banerjee JJ.

Majority – Nariman and Navin Sinha JJ. 

Facts

This case came to Supreme Court as a reference of a Division Bench decision of Supreme Court reported as Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31.

  1. Conviction was challenged on the ground that

The conviction is based solely on the purported confessional statement recorded under Section 67 of the NDPS Act which has no evidentiary value because

  1. The statement was given to and recorded by an officer who is to be treated as “police officer” and is thus, hit by Section 25 of the Evidence Act
    1. No such confessional statement could be recorded under Section 67 of the NDPS Act. This provision empowers to call for information and not to record such confessional statements. Thus, the statement recorded under this provision is akin to the statement under Section 161 CrPC.
    1. In any case, the said statement having been retracted, it could not have been the basis of conviction and could be used only to corroborate other evidence.”

Judgment By Nariman and Navin Sinha JJ. 

  1. Constitutional backdrop to the issue –
    1. The first most important constitutional protection provided in the fundamental rights chapter so far as these cases are concerned is provided by Article 20(3), which is the well-known right against self-incrimination.
    1. In M.P. Sharma and Ors. v. Satish Chandra 1954 SCR 1077, an eight-Judge Bench set out Article 20(3) and held, the guarantee under Article 20(3) would be available in the present cases to these petitioners against whom a first information report has been recorded as accused therein. It would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them.
    1. An eleven-Judge Bench was then constituted in State of Bombay v. Kathi Kalu Oghad and Ors. (1963) 2 SCR 10 said M.P. Sharma was correctly decided insofar as it stated that the guarantee under Article 20(3) extended to testimony by a witness given in or out of courts, which included statements which incriminated the maker. However, the Court went on to state that “furnishing evidence” would exclude thumb-impressions or writing specimens, for the reason that the taking of impressions of parts of the body often becomes necessary for the investigation of a crime. Incriminating information must therefore include statements based on personal knowledge. The Court then went on to consider whether section 27 of the Evidence Act would fall foul of Article 20(3). The Court held that if self-incriminatory information is given under compulsion, then the provisions of section 27 of the Evidence Act would not apply.
    1. In Balkishan A. Devidayal v State of Maharastra, the court held that only a person against whom a formal accusation of the commission of an offence has been made can be a person “accused of an offence” within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an FIR or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in court. In the instant case no such formal accusation had been made against the appellant when his statement(s) in question were recorded by the RPF officer.”
    1. In Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424, it was held an accused person is bound to answer where there is no clear tendency to criminate.
    1. Selvi v. State of Karnataka (2010) 7 SCC 263 dealt with the constitutional validity of narco-analysis tests and held the protective scope of Article 20(3) read with Section 161(2) CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20(3) is decided by the trial Judge, but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3).
    1. Equally important is the right to privacy which has been recognised by a number of decisions of this Court, and now firmly grounded in Article 21 of the Constitution of India. In K.S. Puttaswamy several judgments were referred to; and M.P. Sharma where it was held that no such right was recognised in the Constitution of India, was overruled.
    1. The NDPS Act is to be construed in the backdrop of Article 20(3) and Article 21, Several safeguards are thus contained in the NDPS Act, which is of an extremely drastic and draconian nature; 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 Court.
  2. CONFESSIONS UNDER SECTION 25 OF THE EVIDENCE ACT
    1. Section 25 was originally in the Criminal Procedure Code, 1861 (Act 25 of 1861), and was brought into the Evidence Act of 1872. Section 25 states that a confession made to any police officer, whatever his rank, cannot be relied upon against a person accused of any offence.
    1. “Police officer” is not defined in the Evidence Act
    1. As to what, therefore, “police officer” means, has been the subject matter of several decisions of the Court. the voluntariness or otherwise of the confession being irrelevant – it is conclusively presumed by the legislature that all such confessions made to police officers are tainted with the vice of coercion.
    1. In Agnoo Nagesia v. State of Bihar (1966) 1 SCR 134, the Court held: A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun.
  • PROVISIONS CONTAINED IN THE NDPS ACT
    • 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 offence only be punishable under section 26 or 27 of the NDPS Act – see section 33
    • 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.
    • 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.
    • 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 those 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.
    • 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. Several safeguards are contained in section 42
    • Section 42 – 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
    • “Reason to believe” has been construed by this Court in A.S. Krishnan v. State of Kerala (2004) 11 SCC 576 as “Reason to believe” is a higher level of state of mind. Likewise, “knowledge” will be slightly on a higher plane than “reason to believe”. A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same.”
    • 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.
    • S. 58 says 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 subsection (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.
    • Given the stringent provisions of the NDPS Act, together with the safeguards mentioned in the provisions discussed above, 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
    • 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.
    • 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.
    • 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.
    • 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.
    • It would be absurd that if a police officer, properly so-called, were to “investigate” an offence under the NDPS Act, all the safeguards contained in sections 161 to 164 of the CrPC would be available to the accused, but that if the same police officer or other designated officer under section 42 were to record confessional statements under section 67 of the NDPS Act, these safeguards would be thrown to the winds. section 67 would then have to be “read down” so as to conform to fundamental rights
    • Take, for example, an investigation conducted by the regular police force of a State qua a person trafficking in ganja. If the same person were to be apprehended with ganja on a subsequent occasion, this time not by the State police force but by other officers for the same or similar offence, the safeguards contained in sections 161-164 of the CrPC would apply insofar as the first incident is concerned but would not apply to the subsequent incident. This is because the second time, the investigation was not done by the State police force, but by other officers. The fact situation mentioned in the aforesaid example would demonstrate manifest arbitrariness in the working of the statute, leading to a situation where, for the first incident, safeguards available under the CrPC come into play because it was investigated by the local State police, as opposed to officers other than the local police who investigated the second transaction.
  • WHETHER AN OFFICER DESIGNATED UNDER SECTION 53 OF THE NDPS ACT CAN BE SAID TO BE A POLICE OFFICER
    • In State of Punjab vs Barkat Ram case, by a 2:1 majority, this Court held that a Customs Officer under the Land Customs Act, 1924 is not a “police officer” within the meaning of section 25 of the Evidence Act
    • since the expression “police officer” is not defined, it cannot be construed in a narrow way, but must be construed in a “wide and popular sense”.
    • The Court expressly left open the question as to whether the “broader” or “narrower” meaning of police officer in the constitutional judgment Badku Joti Savant v State of Mysore. In Romesh Chandra Mehta court held that Customs officer could not be said to be a police officer for the purpose of section 25 of the Evidence Act
    • In State of U.P. v. Durga Prasad (1975) 3 SCC 210, a Division Bench of this Court referred to section 8 of the Railways Property (Unlawful Possession) Act, 1966 and held that an officer conducting an inquiry under Section 8(1) of the Act does not possess all the attributes of an officer-in-charge of a police station investigating a case under Chapter XIV of the Code. He possesses but a part of those attributes limited to the purpose of holding the inquiry. Members of the Force are appointed under the authority of the Railway Protection Force Act, 1957, the prime object of which is the better protection and security of Railway property. Powers conferred on members of the Force are all directed towards achieving that object and are limited by it. It is significant that the Act of 1957, by Section 14, makes a distinction between a member of the Force and a police officer properly so called.
    • In State of Gujarat v. Anirudhsing and Anr. (1997) 6 SCC 514, one of the questions which arose before Court was as to whether a member of the State Reserve Police Service acting under the Bombay State Reserve Police Force Act, 1951 could be said to be a police officer within the meaning of section 25 of the Evidence Act. The court held When employed on active duty at any place under subsection (1) of Section 10, the senior reserve police officer of highest rank, not being lower than that of a Naik present, shall be deemed to be an officer-in-charge of a police station for the purposes of Chapter IX of the Code of Criminal Procedure, 1898, Act V of 1898. A senior reserve police officer appointed under the SRPF Act, though is a police officer under the Bombay Police Act and an officer-in charge of a police station, he is in charge only for the purpose of maintaining law and order and tranquility in the society and the powers of investigation envisaged in Chapter XII of the CrPC have not been invested with him.
    • 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
    • In Raja Ram Jaiswal case the court held that as all powers of investigation, which would lead to the filing of a police report, were invested with excise officers, who therefore, despite not belonging to the police force properly so-called, must yet be regarded as police officers for the purpose of section 25 of the Evidence Act.
    • The language of section 53(1) is crystal clear, and invests the officers mentioned therein with the powers of “an officer-in-charge of a police station for the investigation of the offences under this Act”. 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).
    • 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.
    • Vinubhai Haribhai Malviya and Ors. v. State of Gujarat and Anr. 2019 SCC OnLine SC 1346 held that the power to further investigate an offence would be available at all stages of the progress of a criminal case before the trial actually commences. If the officer designated under section 53 can only file a “complaint” and not a “police report”, then such officer would be denuded of the power to further investigate the offence under section 173(8) after such “complaint” is filed. This is because section 173(8) makes it clear that the further report can only be filed after a report under sub-section (2) (i.e., a police report) has been forwarded to the Court. However, a police officer, properly so-called, who may be investigating an identical offence under the NDPS Act, would continue to have such power, and may, until the trial commences, conduct further investigation so that, as stated by this Court in Vinubhai, an innocent person is not wrongly arraigned as an accused, or that a prima facie guilty person is not so left out. Such anomaly – resulting in a violation of Article 14 of the Constitution of India – in that there is unequal treatment between identically situated persons accused of an offence under the NDPS Act solely due to the whether the investigating officer is a police officer or an officer designated under section 53 of the NDPS Act, would arise only if the view in Raj Kumar Jaiwsal is correct.
    • Section 32 of POTA and section 15 of TADA are exceptions to section 25 of the Evidence Act in terms, unlike the provisions of the NDPS Act. Both these Acts, vide section 32 and section 15 respectively, have non-obstante clauses by which the Evidence Act has to give way to the provisions of these Acts. Pertinently, confessional statements made before police officers under the provisions of the POTA and TADA are made “admissible” in the trial of such person – see section 32(1), POTA, and section 15(1), TADA. This is distinct from the evidentiary value of statements made under the NDPS Act, where section 53A states that, in the circumstances mentioned therein, statements made by a person before any officer empowered under section 53 shall merely be “relevant” for the purpose of proving the truth of any facts contained in the said statement. Therefore, statements made before the officer under section 53, even when “relevant” under section 53A, cannot, without corroborating evidence, be the basis for the conviction of an accused. Both acts (POTA and TADA) are repealed.
    • 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.
    •  As contrary was stated in Raj Kumar Karwal v Union of India 1991 AIR 45, 1990 SCR (2) 63 and Kanhaiyalal v. Union of India (2008) 4 SCC 668 are overruled.
    • Conclusion
      • 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
  1. 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

Judgment by – Indira Banerjee (dissenting)

  1. There are two main enactments on Narcotics subject, the NDPS Act and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, hereinafter referred to as the 1988 Act.
  2. In exercise of power conferred by Section 4(3) of the NDPS Act, the Central Government constituted the Narcotics Control Bureau, hereinafter referred to as NCB. The officers of the NCB are not police officers, but are from different departments of the Government, including officers of the Directorate of Revenue Intelligence, Customs Officers and Central Excise Officers.
  3. The constitutionality of Section 35 of the NDPS Act has been upheld by the Court in Noor Aga v. State of Punjab and Anr (2008) 16 SCC 417 and held that, “It must, however, be borne in mind that the Act was enacted having regard to the mandate contained in International Conventions on Narcotic Drugs and Psychotropic Substances. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, in our opinion, would not render the impugned provisions unconstitutional.”
  4. The scheme of the NDPS Act makes it patently clear that it essentially makes provisions, as are deemed necessary, for preventing and combating the abuse of and illicit trade and trafficking in narcotic drugs and psychotropic substances, including the financing of (i) the cultivation of coca plant; (ii) cultivation of opium poppy or any cannabis plant; (iii) the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use, consumption, import inter-State, export inter. State, import into India, export from India or transhipment of narcotic drugs or psychotropic substances; (iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to above or (v) the hiring or letting out any premises for the carrying on of any of the activities referred to above. Stringent punishment is provided for offences
  5. When a statute has drastic penal provisions like the NDPS Act, the authorities investigating the crime under such law, have a greater duty of care, and the investigation must not only be thorough, but also of a very high standard.
  6. The power of an officer empowered under Section 41(2) to authorize arrest or search, is subject to his having reason to believe from personal knowledge or information given by any person and taken in writing, that the person has committed an offence punishable under the NDPS Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under the NDPS Act has been committed, or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act, is kept or concealed in any building, conveyance or place.
  7. The NDPS Act is a complete code. The NDPS Act specifically makes some provisions of the Cr.P.C applicable to proceedings under the NDPS Act. The Act is very specific on which of the provisions of the Cr.P.C. are to apply to proceedings under the NDPS Act.
  8. A careful reading of the provisions of the NDPS Act show: [SELF READ- imp]
    1. Words and expressions used in the NDPS Act and not defined in the said Act, but defined in the Cr.P.C. would, unless the context otherwise requires, have the meanings assigned to such words and expressions in the Cr.P.C. [Section 2(xxix)]
    1. Nothing contained in section 360 of the Criminal Procedure Code, 1973 or in the Probation of Offenders Act, 1958 is to apply to a person convicted under the NDPS Act, unless such a person is under 18 years of age. [Section 33].
    1. Notwithstanding anything contained in the Cr.P.C, Special Courts constituted under Section 36 of the NDPS Act are to try all offences punishable with imprisonment for a term of more than three years. [Section 36A(1)(a)].
    1. The Cr.P.C does not apply to the power of a Judicial Magistrate to authorize the detention of a person accused or suspected of an offence under the NDPS Act, produced before him, in such custody as he thinks fit, for a period not exceeding 15 days, and that of an Executive Magistrate to do so for a period not exceeding 7 days. [Section 36A (1) (b)].
    1. Where a person accused or suspected of an offence under the NDPS Act, is forwarded to a Special Court under Clause (b) of Section 36A of the NDPS act, the Special Court shall have the same power which a Magistrate, having jurisdiction to try a case, may exercise under Section 167 of the Cr.P.C., notwithstanding anything to the contrary in the Cr.P.C. [Section 36A(1)(c)].
    1. While trying an offence under the NDPS Act, the Special Court may also try an offence other than an offence under the NDPS Act, with which the accused may under the Cr.P.C. be charged at the same trial. [Section 36A (2)].
    1. Nothing contained in Section 36A of the NDPS Act is to be deemed to affect the special powers of the High Court regarding bail under Section 439 of Cr.P.C. [Section 36A (3)].
    1. In respect of offences under the NDPS Act punishable under Sections 19 or 24 or 27A thereof involving commercial quantity, the references in Section 167(2) of the Cr.P.C. to “90 days” where they occur, are to be construed as reference to 180 days. [Section 36A (4)].
    1. Notwithstanding anything contained in the Cr.P.C., offences punishable under NDPS Act, with imprisonment not exceeding three years might be tried summarily. [Section 36 A (5)]
    1. The High Court might exercise, so far as may be, all the powers of Appeal and Revision conferred by Chapter XXIX and XXX of the Cr.P.C. as if a Special Court within the limits of its territorial jurisdiction were a Court of Session. [Section 36 B]
    1.  Save as otherwise provided in the NDPS Act, the provisions of the Cr.P.C., (including provisions as to bails and bonds) are to apply to proceedings before a Special Court and for the purpose of the said provisions, the Special Court is deemed to be a Court of Session and the person conducting prosecution before Special Court is deemed to be a Public Prosecutor. [Section 36 C]
    1. Until a Special Court is constituted as per the NDPS (Amendment) Act, 1988, any offence triable by a Special Court, is, notwithstanding anything in the Cr.P.C., triable by a Court of Session. [Section 36 D]
    1. The power of the High Court under Section 407 of the Cr.P.C. to transfer cases is not affected by Section 36 D (2) in view of the proviso thereto.
    1. Notwithstanding anything in the Cr.P.C. every offence punishable under the NDPS Act is cognizable. [Section 37(1)(a)]
    1. Notwithstanding anything in the Cr.P.C., no person accused of the offences specified in section 37(1)(b) is to be released on bail, on his own bond, unless the Public Prosecutor has been given the opportunity to oppose the release on bail, or where the Public Prosecutor has opposed the release on bail, the Court is satisfied that there are reasonable grounds for believing that the person is not guilty of such offence and that he is not likely to commit any offence, while on bail.
    1. The limitations in the Cr.P.C. on grant of bail, are in addition to the limitations in Section 37(1)(b) of the NDPS Act. [Section 37(2)]
    1. Personal search is to be made in accordance with Section 100 of Cr.P.C. if the person to be searched cannot be taken to the nearest Magistrate or Gazetted Officer inspite of exercise of option to be searched before such Magistrate or Gazetted Officer. [Section 50(5)]
    1. The provisions of the Cr.P.C. are to apply to all warrants issued and searches and seizures made under the NDPS Act in so far as they are not inconsistent with any provision of the NDPS Act. [Section 51]
    1. Notwithstanding anything contained in the Indian Evidence Act, 1872 or the Cr.P.C., every Court is to treat the inventory, photographs of narcotic drugs, psychotropic substances etc. as primary evidence of offence under the NDPS Act. [Section 52A (4)]
  9. If the provisions of the Cr.P.C were to apply to investigations under the NDPS Act, it would not have been necessary to invest any officer under the NDPS Act with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act, by notification in the Official Gazette. The provisions of Section 50(5) and 51 of the NDPS Act would also not have been necessary
  10. Section 53A of the NDPS Act is ex facie contradictory to Section 162 of the Cr.P.C, which provides that no statement made to a police officer, in course of an investigation under Chapter XII of the Cr.P.C shall, if reduced to writing, be signed by the person making it, or used for any purpose at any inquiry or trial in respect of the offences under investigation, except inter alia to confront him if he gives evidence as a witness
  11. Section 53A covers any statement made and signed by any person, before any officer empowered under Section 53 for the investigation of offences, during the course of any proceedings by such officer, under the NDPS Act, be it an inquiry or investigation. This provision makes it abundantly clear that the principles embodied in Sections 161/162 of the Cr.P.C have no application to any inquiry or other proceeding under the NDPS Act, which would include an investigation.
  12. It is well settled that, when different words are used in the same statute, there is a presumption that they are not used in the same sense. Accordingly, in T.A. Krishnaswamy v. State of Madras, this Court held that the words “test” and “analysis” used in Rule 40 of the Central Rules under the Drugs Act 1940 were to be given different meanings. 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.
  13. An enquiry may be carried out by an officer referred to in Section 42 of the NDPS Act, if empowered in this behalf. This is clear from Section 67. The same officer can also investigate an offence under the NDPS Act, if he is also invested under Section 53, with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act.
  14. In Mukesh Singh v. State (Narcotic Branch of Delhi) a Constitution Bench of this Court, unanimously held that an investigation is not vitiated only because the same officer, who was the complainant against the accused offender also investigated into the offence as Investigating Officer. The investigation may also be carried out by a different officer, invested under Section 53 with the powers of an Officer in Charge of the Police Station for the purpose of investigation under the NDPS Act.
  15. The language and tenor of Section 67 or Sections 41/42 does not support the contention that an inquiry can only be made by an officer referred to in Section 42, who is duly authorized, before exercise of the powers of entry, search, seizure or arrest, or at the stage of entry, search, seizure and arrest, but not afterwards. The exercise of power under Sections 41/42 of the NDPS Act does not necessarily have to be preceded by an inquiry. If an inquiry were to be restricted to the stage prior to the exercise of the power of entry, search, seizure and arrest or to the stage of making an entry, search, seizure or arrest, the NDPS Act would have specifically provided so. There is no such provision, either express or implied. It is not permissible to read into Sections 41, 42 etc the words “after an inquiry” which do not exist in those provisions. Nor is it permissible to read the words “before or at the time of entry, search, seizure or arrest” after the words “during the course of any enquiry” in Section 67
  16. An officer referred to in Section 42 of the NDPS Act, if not invested with powers under Section 53 of the said Act, derives the power to call for information, require production of documents and things and to examine persons from Section 67 of the NDPS Act. The powers of investigation of an Officer in Charge of a Police Station include such powers. An officer invested with powers under Section 53 can also make an enquiry. This is clear from the use of the words “A statement made and signed by a person before any officer empowered under Section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant…” in Section 53A (1). The benefit of Section 53A (1) would not be available in the case of a similar statement made before an officer empowered under Section 42, but not under Section 53 of the NDPS Act
  17. If, after an inquiry or investigation, a complaint is filed, and the Special Court takes cognizance of the offence, any statements, documents or other things obtained in the inquiry/investigation may be tendered and proved by the prosecution in the trial against the offender unless the statement and/or document and/or thing has been obtained by any promise, inducement, coercion, threat, or intimidation. The question of whether any statement has been obtained by promise, coercion, threat etc. and/or whether any particular officer, is authorized under Section 42 or invested with powers under Section 53 are matters of trial. The Prosecution has to establish the charges against the offender, in accordance with law, at the trial.
  18. The provisions of the Cr.P.C. only apply to all warrants issued and searches and seizures made under the NDPS Act, in so far as they are not inconsistent with the provisions of the NDPS Act, as provided in Section 51 of the NDPS Act and to the search of a person, without complying with the requirement to take the person to be searched, to the nearest Gazetted Officer or Magistrate, as provided in Section 50(5) of the NDPS Act. Of course, the principles of Section 163 of the Cr.P.C. are implicit in the provisions of the NDPS Act relating to inquiry and investigation though the said Section may not apply to such inquiry or investigation. This is because the bar of Article 20(3) of the Constitution of India has to be read into every statute in spirit and substance. There can be no question of obtaining any statement by any inducement, promise or threat.
  19. The police officers have enormous powers. The powers of a police officer are far greater than those of an officer under the NDPS Act invested with the powers of an Officer in Charge of a Police Station for the limited purpose of investigation of an offence under the NDPS Act. The extensive powers of the police, of investigation of all kinds of offences, powers to maintain law and order, remove obstruction and even arrest without warrant on mere suspicion, give room to police officers to harass a person accused or even suspected of committing an offence in a myriad of ways. The police are, therefore, in a dominating position to be able to elicit statements by intimidation, by coercion, or by threats either direct or veiled. The powers of NDPS officers being restricted to prevention and detection of crimes under the NDPS Act and no other crime, they do not have the kind of scope that the police have, to exert pressure to extract tailored statements.
  20. To summarize, the provisions of the Cr.P.C do not apply to any inquiry or investigation or other proceeding under the NDPS Act, except to the extent expressly provided by the NDPS Act, in view of Section 4(2) read with Section 5 of the Cr.P.C.
  21. Officers under the NDPS Act have the power to call for information, to require production of documents and other things, to examine persons and record their statements by virtue of the powers conferred by Sections 53 and 67 read with Section 53A of the NDPS Act.
  22. As Officers empowered under Section 53 have all the powers of an Officer in Charge of a Police Station to conduct investigation of an offence under the NDPS Act, which includes the powers of calling for information, examining persons or requiring production of documents and other things, such powers have expressly been conferred by Section 67 to authorised officers referred to in Section 42, who may or may not be invested with powers under Section 53.
  23. Officers under the NDPS Act, invested under Section 53 with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act, do not exercise all the powers of police officers. They do not have the power to file a police report under Section 173 Cr.P.C which might be deemed a complaint. There is no provision in the NDPS Act which requires any officer investigating an offence under the said Act or otherwise making an inquiry under the said Act to file a report.
  24. Officers under the NDPS Act not being police officers, Sections 161/162 of the Cr.P.C have no application to any statement made before any officer under the NDPS Act, in the course of any inquiry or other proceedings under the NDPS Act.
  25. In any case, Section 53A is clearly contrary to and thus overrides Section 162 of the Cr.P.C. While Section 162(1) of the Cr.P.C. provides that no statement made by any person to a police officer, when reduced to writing shall be signed by the person making it, or used for any purpose, save as provided in the proviso to the said section, that is, to confront the person making the statement, if he gives evidence as a witness, Section 53A(1) provides that “a statement made and signed by a person before any officer empowered under Section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under this Act” in certain circumstances specified in the said section.
  26. Whether the officer concerned is duly empowered and/or authorised to make an enquiry/investigation, whether any statement or document has improperly been procured, etc. are factors which would have to be examined by the Court on a case-to-case basis. Needless to mention that, having regard to all relevant facts and circumstances, the Court may not base conviction solely on a statement made in an inquiry which is confessional, in the absence of other materials with which the statement can be linked. It is for the Special Court to weigh the statement and assess its evidentiary value, having regard to all relevant factors. All statements and documents tendered in evidence have to be proved at the trial in accordance with law
  27. Constitution Benches in Romesh Chandra Mehta and Illiashave made a distinction between police officers and other officers exercising the powers of a police officer for investigation of an offence under a special act by comparing the restricted police powers of the latter with the far wider powers of the former including those under the Police Acts.
  28. There can be no doubt that the mandatory provisions of the NDPS Act to ensure fair trial of the accused must be enforced. However, over-emphasis on the principles of natural justice in drug trafficking cases can be a major hindrance to the apprehension of offenders. In offences under the NDPS Act, substantial compliance should be treated as sufficient for the procedural requirements, because such offences adversely affect the entire society. The lives of thousands of persons get ruined.
  29. While the right to a fair trial by an impartial Court and/or Tribunal is a human right under the UDHR and an essential concomitant of the fundamental rights, at the same time, the fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. A crime under the NDPS Act is a crime against society and not just an individual or a group of individuals. While the safeguards in the NDPS Act must scrupulously be adhered to prevent injustice to an accused, the Court should be vigilant to ensure that guilty offenders do not go scot free by reason of over emphasis on technicalities. Substantial justice must be done. Every piece of evidence should be objectively scrutinized, evaluated and considered to arrive at a final decision.
  30. Compulsion is an essential ingredient of the bar of Article 20 (3) of the Constitution. Article 20 (3) does not bar the admission of a statement, confessional in effect, which is made without any inducement, threat or promise, even though it may have subsequently been retracted. The article also does not debar the accused from voluntarily offering himself to be examined as a witness. The constitutional protection against compulsion to be a witness is available only to persons “accused of an offence”, and not persons other than the accused. It is a protection against compulsion to be a witness and it is a protection against compulsion resulting in giving evidence against himself.
  31. A statute may expressly make Section 173 of the Cr.P.C applicable to inquiries and investigations under that statute. However, in the case of a statute like the NDPS Act, where the provisions of the Cr.P.C do not apply to any inquiry/investigation, except as provided therein, it cannot be held that the officer has all the powers of a police officer to file a report under Section 173 of the Cr.P.C. The NDPS Act does not even contain any provision for filing a report in a Court of law which is akin to a police report under Section 173 of the Cr.P.C.
  • the provisions of the Cr.P.C 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.

Interesting fact- Raj Kumar Karwal bases its finding as per three constitutional bench judgments, how come three judges bench overrule Raj Kum

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