sec. 67 NDPS ACT and sec.25 of Evidence Act - whether the Officer are Police Officer and whether the officers can record a confessional statement from the Accused by force - due to conflict judgments- referred to larger bench. =
In our view the aforesaid discussion necessitates a re-look
into the ratio of Kanhiyalal Case. It is more so when this Court has
already doubted the dicta in Kanhaiyalal (supra) in the case of
Nirmal Singh Pehalwan (2011) 12 SCC 298 wherein after noticing both
Kanhiyalal as well as Noor Aga, this Court observed thus:
“15. We also see that the Division Bench in Kanhaiyalal case;
2008 (4) SCC 668; (2008) 2 SCC (Crl.) 474, had not examined the
principles and the concepts underlying Section 25 of the
Evidence Act vis.-a-vis. Section 108 of the Customs Act the
powers of Custom Officer who could investigate and bring for
trial an accused in a narcotic matter. The said case relied
exclusively on the judgment in Raj Kumar's case (Supra).
The
latest judgment in point of time is Noor Aga's case which has
dealt very elaborately with this matter.
We thus feel it would
be proper for us to follow the ratio of the judgment in Noor
Aga's case particularly as the provisions of Section 50 of the
Act which are mandatory have also not been complied with.”
whether the officer investigating the matter under NDPS
Act would qualify as police officer or not.
whether the
statement recorded by the investigating officer under Section 67 of
the Act can be treated as confessional statement or not, even if the
officer is not treated as police officer also needs to be referred to
the larger Bench, inasmuch as it is intermixed with a facet of the
1st issue as to whether such a statement is to be treated as
statement under Section 161 of the Code or it partakes the character
of statement under Section 164 of the Code.
In so far
as Section 108 of the Customs Act is concerned, it gives power to the
custom 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 Andhra Pradesh High Court in the Case of Shahid Khan
vs. Director of Revenue Intelligence; 2001 (Criminal Law Journal)
3183.
42. The Registry is accordingly directed to place the matter before Hon’ble the Chief Justice for the decision of this appeal by a larger Bench after considering the issues specifically referred as above.
We find from the record that as against the sentence of 10
years awarded to the appellant he has already undergone more than 9
years of sentence. In these circumstances, we deem it a fit case to
suspend further sentence till the disposal of this appeal by the
larger Bench. The appellant shall be released on bail on furnishing
security in the sum of Rs.50,000/- (Rupees Fifty Thousand) with two
sureties of the same amount, to the satisfaction of the trial court.
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 152 OF 2013
TOFAN SINGH ….APPELLANT
VERSUS
STATE OF TAMIL NADU ….RESPONDENT
J U D G M E N T
A.K. Sikri, J
1. The appellant herein, Tofan Singh, was listed as Accused No. 3 in
the trial for the offences under Section 8(c) r/w Section 21 (c) of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter to be referred as the NDPS Act) as well as for the
offences under Section 8(c) r/w Section 29 of the NDPS Act.
This
trial, conducted by the Special Judge, Additional Special Court,
under NDPS Act, Chennai, resulted in the conviction of the
appellant holding him guilty of the offences under the aforesaid
provisions of the Act.
As a consequence of the said judgment dated
18.12.2009 convicting him under the provisions of the NDPS Act, the
learned Special Judge sentenced the appellant to undergo 10 years
rigorous imprisonment and to pay a fine of Rs. one lakh.
In default
whereof, it was ordered that the appellant would undergo rigorous
imprisonment for a further period of one year.
Identical sentences
were imposed for the offences under Section 8 (c) read with Section
21 & 29 of the NDPS Act, 1985 with the direction that both the
sentences had to be undergone by the appellant concurrently.
2. Appeal filed by the appellant against the order of the Special
Judge, Addl. Special Court, has been dismissed by the High Court of
Judicature at Madras vide judgment dated 18.6.2012 thereby
maintaining the conviction as well as the sentence awarded by the
Special Judge, Addl. Special Court under NDPS Act, Chennai.
Dissatisfied and undeterred by the judgments of the Courts below,
the appellant preferred the Special Leave Petition in which the
leave was granted on 18.1.2013.
However, at the same time, bail
application preferred by the appellant was rejected and appeal was
posted for hearing.
This is how the present appeal arises against
the impugned judgment dated 18.6.2012 of the High Court of
Judicature at Madras.
3. The allegations against the appellant (along with five others out of
whom two are absconding) were that 5.250 Kgs of heroin was seized
from these accused persons which they were carrying and attempting
to export out of India.
As per the complaint filed by the
Intelligence Officer, NCB, Chennai in this behalf, the prosecution
case is stated, in a summary form, as below:-
4. On 23.10.2004, the Intelligence Officer, NCB, South Zone Unit,
Mr. L.S. Aruldoss (PW-7), received information at about 9.00 p.m. that
one Prem @ Kannan @ Sudeshwaran resident of Nanganallur, Chennai was
procuring Narcotic Drugs from Guddu Singh resident of Rajasthan with
the assistance of one Bapulal resident of Pattalam, Chennai, for
trafficking it from Chennai to Srilanka and
that they had made
arrangements for the supply of 5 Kgs. of heroin through his two
persons, who were identified to Bapulal by Guddusingh and those two
persons were arriving at Chennai on the next day by Jaipur Express.
It
was further reported that the said Bapulal and Kannan had planned to
leave at 10.00 p.m. on 23.10.2004 to Nellore, Andhra Pradesh, in a
white Ambassador Car bearing Registration No. TN-01-K0923 and on
reaching Chennai, Prem @ Kannan @ Sudeshwaran would receive the heroin
and smuggle it out to Srilanka.
5. After receiving the information, Mr. L.S. Aruldoss, the
Intelligence Officer (PW-7) discussed the matter with other officers
namely Mr. Gunabalan (PW-6) and Mr. A. Sendhil Murugan (PW-10)
resulting into the orders by Mr. Gunabalan (PW-6) to proceed with the
case.
Accordingly, on 24.10.2004, at about 9.00 a.m., P.W.6, P.W.7,
and P.W.10 and two other staff members viz., one Sepoy and Driver left
NCB Office and reached the scene of occurrence at 11.00 a.m.
On the
instruction of P.W.6, P.W.7 procured two independent witnesses viz. S.
Gopi (P.W.8) and one Krishnamurthy (not examined).
They intercepted
the Ambassador Car bearing Registration No. TN-01-K0923 and found that
there were six passengers inside the car.
On the front seat, there
were two drivers namely, Satyakeerthi and Mariappan and next to driver
Mariappan, the appellant herein was sitting.
On the back seat Prem @
Kannan @ Sudeshwaran (Accused No. 2) of Srilanka, Bapulal (Accused No.
1) of Chennai & Badrilal Sharma (Accused No. 4) were seated.
After the
police party enquired as to whether there were any Narcotic Drugs,
Accused No. 1 & 2 who were seated on the back seat, took out one green
colour bag from beneath their seat and handed it over to Mr. Aruldoss
(P.W.7) stating that it contains 5 Kgs. of heroin.
The recoveries
were, thereafter, effected and the accused persons were arrested for
commission of offences under the NDPS Act.
The two drivers of the
ambassador car were, thereafter, allowed to go.
The appellant and the
other accused persons were arrested by the raiding party.
6. While the four accused persons including the appellant
were arrested, the other two accused namely Guddu Singh @ Vikram Singh
and Ravi could not be arrested and were absconding.
The statements of
the arrested accused persons were recorded by Mr. A. Sendhil Murugan,
Intelligence Officer.
The appellant also gave his statement under Section 67 of the NDPS Act as per which he confessed to the commission of the crime.
7. The case was, thereafter, handed over to Mr. R. Murugan
(P.W.2) for investigation. After completing the investigation, he
filed a report under Section 173 of the Code of Criminal Procedure,
1973 before the Special Judge under NDPS Act. Charges were framed and
the matter went on trial. The prosecution examined as many as 10
witnesses. Among them were Mr. L.S. Aruldoss - Intelligence Officer,
NCB (P.W.7), Mr. Gunabalan – Superintendent (P.W.6), Mr. A. Sendhil
Murugan (P.W.10), Mr. R. Murugan (P.W.2), Smt. Saraswathy
Chakravarthy, Chemical Examiner in Customs House Laboratory at Chennai
(P.W.4), Mr. T. Sridhar (P.W.5).
8. The information relating to the commission of the offence
has been taken note of and discussed by the Trial Court as well as the
High Court in the impugned judgment in detail. It is not necessary to
burden this judgment with all those details as our purpose would be
served by referring to those aspects which are essential for the
purposes of the present appeal. We may state that the prosecution had
also produced Exs. P1 to P81 and M.Os 1 to 19 during the trial.
After
examining the prosecution witnesses, statements of the accused persons
under Section 313 of the Code of Civil Procedure (hereinafter to be
referred as ‘Code’)were recorded.
The accused persons denied the same
and stated as follows:
A-1: Denied the incriminating evidence against him and stated
that he was compelled to come to the NCB Office and a false
case is foisted against him and gave a written statement
stating that the NCB officers came to his house between
12.30 to 1.00 p.m. on 25.10.2004 and took him to their
office at Chennai in the presence of his wife and his
children and have forcibly taken the signatures on some
papers written in Hindi and that he is not connected with
the other accused and that he was not occupant of the Car
as alleged in the case and he was not aware of the
contraband seized and examined defence witnesses on his
behalf namely Mr. Vinay, son of A-1, D.W.1 and Dr.
Somasundaram D.W.2.
A-2: Denying the incriminating evidence against him stated that
he was taken from Nanganallur to the NCB Office and that he
was not allowed to talk before the Judge during remand.
A-3: Stated that summon was not issued to him and Rs. 1,600/-
and train tickets were seized from him at Chennai Central
Railway Station and he was beaten and forced to sign in the
NCB office on blank papers and stated that it is a false
case.
A-4: Stated that he was arrested at Nellore Railway Station
while he was coming from train and his signatures were
obtained forcibly and the Intelligence Officer Mr.
Karthikeyan (P.W.3) has foisted a false case against him
due to quarrel in the train between him and the
Intelligence Officer and that he was working in the RPF and
is not connected with the contraband seized and gave a
written statement stating that he travelled in mufti to go
to Tirupathy and got down at Chennai Central Railway
Station and was arrested and false case was foisted against
him due to wordy quarrel with the officer and that Section
67 statement was obtained by force and torture and that he
was not carrying any Narcotic Drug.
Thereafter, the accused persons produced two witnesses who
were examined and one document Ex. D1 was marked.
9. Defence evidence is as follows:-
DW.1: The NCB Officers came at about 1.00 p.m on 25.10.2004 and
searched the house of A-1 and they obtained his
signature and his mother’s signature in blank papers by
threatening them. A-2 has not gone anywhere during
September and October of 2004 and he was at home doing
cloth business. A-1 was taken from his office and
arrested. The other accused had never contacted A-2 over
phone at any time.
DW.2: Dr. Somasundaram has recommended A-1 for treatment for
Paralysis at Royapettah Hospital and his case sheet
containing 21 pages for treatment from January, 2008 to
25.9.2008 is Ex. D.1.
10. It would be relevant to point that two of the accused persons
namely Guddu Singh @ Vikram Singh and Ravi were absconding and they
could not be procured during the trial, resulting into splitting up of
case as new C.C. No. 9 of 2007.
Thereafter, the trial proceeded
against the other four accused persons which led to their conviction,
as mentioned above.
All these four accused persons had filed the
appeal which has been dismissed by the High Court of Judicature at
Madras vide impugned Judgment.
However, out of the four convicted
persons, only the appellant herein has preferred the present appeal.
JUDGMENT OF THE TRIAL COURT:
11. The learned Trial Court in its judgment dated 18.12.2009, after
pointing out the main prosecution evidence as well as the defence,
noted that the gist of the prosecution case was that the six accused
persons had hatched criminal conspiracy at Nellore, Andhra Pradesh,
Chennai and Srilanka to procure, possess, transport and attempt to
export out of India 5.250 Kgs. of heroin to Srilanka. Accused No. 2
had indulged in financing for purchase of heroin for which he entered
India without registering himself as a foreigner. The heroin, which
was seized, was being taken for the said export which was intercepted
in the manner stated below:-
“As per the prosecution, after the information was received by
Mr. L.S. Aruldoss, Intelligence Officer (P.W.9) on 23.10.2004
and discussed with Mr. Gunabalan, Superintendent (P.W.6) and Mr.
A. Sendhil Murugan, Intelligence Officer (P.W.10) and further
action was sanctioned, the raiding party consisting of PW.6,
PW.7, PW.10 with Sepoy and driver, left the NCB office in the
vehicle Mini Bus bearing Registration No. TN 09 C 3113 on
24.10.2004 at 9.00 a.m and had reached GNT Road 100’ Road
Junction at 11.00 a.m. Two independent witnesses namely, Mr. S.
Gopi (P.W.8) and Krishnamurthy were also associated. When they
were mounting surveillance at about 12.00 noon, they noticed
Ambassador Car bearing Regd. No. TN 01 K 0923 coming towards
Chennai which was intercepted by the raiding authority and the
heroin in question seized in the manner already explained above.
The case argued by the prosecution was that the conspiracy
hatched between Accused No. 1 to 4 was proved by the seizure of
Ex. P-4 train ticket PNR No. 840-7161615 dt. 14.10.2004 and Ex.
P-41 the booking particulars disclose the name of A-2, A-2 and
Rajesh and the place of travel from Mumbai to madras and another
passenger name through it was mentioned in it was given as
Shahid by A-1 in his further voluntary statement in Hindi Ex. P-
6 of which the free English translation is Ex. P-77 in which it
is stated that Shahid is the person through whom money was sent
to Guddu Singh which in fact is within the special knowledge of
A-1. In the same manner Ex. P-5 telephone bills were seized from
the residence of A-1 and when A-21 was questioned about the
telephone numbers Faroth and Sarola A-2 has stated in Ex. P-77
that these numbers belong to Guddu Singh and his brother through
which he used to talk about smuggling of heroin. In the English
translation of voluntary statement of A-3, Ex. P-78 of which the
Hindi version is Ex. P-10 it is stated that A-3 met Guddu Singh
who introduced him to A-4 and told him that A-4 is working in
RPF, Bhawani Mandi, Rajasthan and that A-4 would travel with him
in uniform in Jaipur Chennai Express and handed over a bag
containing 5 Kgs. of heroin stating that it should be handed
over to A-1 at Nellore who was already introduced to A-3 on
13.10.2004. The version of A-3 in Ex. P-78 that he travelled in
Jaipur Chennai Express from Shamgarh is corroborated by the
seizure of two train tickets Ex. P-61 and Ex. P-62 from Shamgarh
to Chennai from A-3 and I.D. Card of A-4 Ex. P-63 discloses that
A-3 was working in RPF. Ex. P-79 is the voluntary statement of A-
4 which is free english translation of the hindi statement of
Ex. P-74 in which A- has stated that he boarded Jaipur Express
on 22.10.2004 and met A-3 in Bhopal in the train and that he
knew that A-3 brought Narcotic Drug with him. Conspiracy could
be proved only through the conduct of the accused. A-3 and A-4
had travelled with the contraband in the train and have met A-1
and A-2 at Nellore and handed over the same and boarded in the
ambassador car only due to the previous meeting of minds by
fixing the time and place of handing over the contraband to the
concerned accused. From the proved conduct of A-1 to A-4 it is
clear that they have involved themselves in the illegal
trafficking of heroin. Ex. P-21 call analysis discloses that
07425-284050 in the name of Bhuvan Singh of M.P. was frequently
in touch with A-2 and A-2 mobile numbers A-1 in his voluntary
statement Ex. P-2 has stated that Guddu Singh Number is 07425-
284050 through which he used to contact A-3 and Guddu Singh.
Hence, the prosecution contended that the charges against A-1 to
A-4 for possession transportation of heroin for Export from
India and Conspiracy U/s. 8(c) r/2. 21 (c) and 29 of NDPS Act
were well proved.”
12. In so far as the charge under Section 28 of the NDPS Act is
concerned, the trial court held that the said charge was not proved
against the accused persons, in as much as at the stage of preparation
to commit the offence of illegal export of contraband, the car was
intercepted and search and seizure conducted which resulted in the
recovery of the contraband. As such, the accused persons were
apprehended in the middle of the operation and since the attempt to
commit the offence of export had not yet begun, it could not be said
that the accused persons had committed any act which could be
considered as a step towards the commission of offence of export of
the contraband. The accused persons were, thus, acquitted of the
charge under Section 28 of the NDPS Act.
13. Likewise, the trial court held that charge under Section 27A of
the NDPS Act foisted upon the accused No. 2 was not proved as no oral
or documentary evidence was produced in the form of Bank Pass Book or
income particulars or documents regarding the money transactions
between the seller and the purchaser of heroin.
Moreover, there was no
oral or documentary evidence to show that the Accused No. 2 had failed
to register himself as a foreigner or that he had entered into India
without valid and legal documents and thus, he was acquitted of the
charge under Section 3(3) of the Passport (Entry into India) Act, 1920
read with Rule 3 (a) as well as under Section 14 of the Foreigners
Act, 1946.
14. While discussing the main charge leveled under Section 8(c) read
with Section 21(c) and 29 of the NDPS Act, the trial court noted that
the defence counsel had sought for discard of the prosecution case on
the following grounds:
(i) Voluntary statement recorded under Section 67 of the NDPS
Act had been retracted and so, they had no evidentiary
value.
(ii) There was violation of Section 50 of the NDPS Act as there
was non-compliance of the provisions thereof .
(iii) Driver of the vehicle was not examined which was fatal to
the prosecution case.
(iv) Sample sent for analysis and the seized contraband were
not one and the same.
(v) There was no link evidence which vitiated the trial.
(vi) Names of Accused No. 3 (the appellant) and Accused No. 4
were not mentioned in the information which was received by
the Intelligence Officer and, therefore, they were wrongly
included in the charge sheet.
(vii) There was a violation of standing order 1/88 in as much as
samples were not submitted to the Chemical Examiner within
72 hours of seizure and the report was not submitted within
15 days of receipt of contraband for analysis.
(viii) Statements under Section 67 were not recorded in
accordance with law, as no statutory warning under Section
164 of the Code of Criminal Procedure was given to the
accused persons before recording the statement.
15. The trial court discussed the arguments predicated on the
aforesaid defence but found the same to be meaningless. On the basis
of prosecution evidence, the trial court concluded that the
prosecution was able to prove the charges under Section 8(c) read with
Section 21(c) and Section 29 of the NDPS Act and convicted and
sentenced the accused persons in the manner mentioned in the beginning
of this judgment.
JUDGMENT OF THE HIGH COURT:
16. A perusal of the impugned judgment reveals that as many as six
arguments were advanced before the High Court, attacking the findings
of the learned Trial Court. Taking note of these grounds of appeal,
the High Court framed the questions in Para 12 of the judgment. We
reproduce hereinbelow those six questions formulated by the High Court
which reflected the nature of defence:
(i) Whether Section 50 of NDPS Act is complied with or not?
(ii) Whether the provision of Section 42 of NDPS Act is
complied with or not?
(iii) Whether non-examination of drivers and non-seizure of
vehicle/ car are fatal to the case of the prosecution?
(iv) Whether Section 67 statement of the accused is reliable?
(v) Whether Accused No. 2 is entitled to invoke Section 30 of
NDPS Act?
(vi) Whether conviction and sentence passed by the trial court
is sustainable.
17. Obviously, all these questions have been answered by the High
Court against the appellant herein as the outcome of the appeals has
gone against the appellant. However, it is not necessary to mention
the reasons/ rationale given by the High Court in support of its
conclusion in respect of each and every issue. We say so because of
the reason that all the aforesaid contentions were not canvassed
before us in the present appeal. Thus, eschewing the discussion which
is not relevant for these appeals, we would be narrating the reasons
contained in the impugned judgment only in respect of those grounds
which are argued by Mr. Sushil Kumar Jain, learned Counsel appearing
for the appellant, that too while taking note of and dealing with
those arguments.
THE ARGUMENTS:
18. After giving brief description of the prosecution case, in so
far as the alleged involvement of the appellant is concerned. Mr.
Sushil Kumar Jain drew our attention to the following aspects as per
the prosecution case itself:
(a) In the present case in the prior secret information with
the police, there was no prior information with regard to
the appellant herein. The secret information (Ex. P-72)
does not disclose the name of the appellant at all.
(b) On the date of incident also, the appellant was found
sitting on the front seat alongwith the two drivers who
have been let off by the investigating agency itself and
the ambassador car from which the recoveries had been
effected has also not been seized. The said drivers could
have been the best witnesses but they have not been
examined by the prosecution.
(c) The recovery of the narcotic substance was made at the
instance of A1 and A2 (and not the appellant herein), who
while sitting on the back seat took out a green colour bag
from beneath their seat and handed it over to PW.7. The
appellant cannot be said to be in conscious possession of
the narcotic substance.
(d) In the search conducted of the appellant herein, the
raiding party found Indian currency of Rs. 680/- (vide Ex.
P-11) which is M.O. 15 and two second class train tickets
from Shamgarh to Chennai. Thus no incriminating material
has been recovered from the appellant. Further there is
also no recovery of any mobile phone from the appellant
herein which could link the appellant with the other co-
accused.
(e) The prosecution case hinges solely upon the confessional
statement of the appellant herein (Ex. P-9), which was
recorded by PW.2 – R. Murugan under Section 67 of the Act,
and the same person acted as the investigating officer in
the present case.
19. From the above, Mr. Jain argued that there was no evidence worth
the name implicating the appellant except the purported confessional
statement of the appellant recorded under Section 67 of the NDPS Act.
After drawing the aforesaid sketch, Mr. Jain endeavoured to fill
therein the colours of innocence in so far as the appellant is
concerned with the following legal submissions:-
(I) It was argued that the conviction of the appellant is
based upon a purported confessional statement (Ex. P-9] recorded
by PW.2 R. Murugan under the provisions of Section 67 of the
NDPS Act, which did not have any evidentiary value. Mr. Jain
submitted in this behalf that:
(a) There is no power under Section 67 of the NDPS Act to
either record confessions or substantive evidence which can form
basis for conviction of an accused, in as much as:
(i) The scheme of the Act does not confer any power upon
an officer empowered under Section 42 to record
confessions since neither a specific power to record
confession has been conferred as was provided under
Section 15 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (TADA) or under Section 32 of
the Prevention of Terrorism Act, 2002 (POTA) nor the
power under Section 67 is a power to record
substantive “evidence” as in Section 108 of the
Customs Act or Section 14 of the Central Excise Act
which are deemed to be judicial proceedings as
specifically provided under Section 108(4) of the
Customs Act or Section 14(3) of the Central Excise
Act.
(ii) The powers under Section 67 has been conferred upon
an officer under Section 42 so that such officer can
effectively perform his functions. The power under
Section 67 is incidental to and intended to enable an
officer under Section 42 to effectively exercise his
powers of entry, search, seizure or arrest which is
provided under Section 42 of the Act. The powers
under Section 67 are powers to “call for information”
which information can thereafter form the basis for
satisfaction of “reasons to believe by personal
knowledge or information” appearing in Section 42 and
which a jurisdictional basis and a pre-condition to
exercise powers under Section 42 of the Act. Absence
of reasons to believe or information would render the
exercise under Section 42 of the Act bad in law and
hence in order to derive the said information power
has been conferred under Section 67 to an officer
empowered under Section 42. This statement is,
therefore, merely “Information” subject to
investigation and cannot be treated as substantive
evidence.
(b) Pitching this argument to the next level, it was
submitted that the power under Section 67(c) of the Act is
merely a power to examine any person acquainted with the
facts and circumstances of the case. Such statements are
not required in law to be truthful as provided under
Section 161(2) of the Criminal Procedure Code, which
required the person making statement to a police officer
under Section 161 Cr.P.C. to make a true statement. Even
such a statement made under Section 161 Cr. P.C. is not a
substantive evidence on which a conviction can be based.
Statements under Section 67 are not required in law to be
given truthfully and hence cannot in any case be treated to
be a substantive evidence. Further statement under Section
67 are not recorded after administration of oath as is
required under Section 164(5) of the Criminal Procedure
Code, the officers are not competent to administer oaths
and, therefore, the statements under Section 67 cannot be
substantive evidence for recording conviction.
(c) Taking the arguments to a still higher pedestal, Mr.
Jain’s effort was to demonstrate that the officer recording
the statement was a police officer and, therefore, such a
statement was hit by Section 25 of the Indian Evidence Act.
He submitted that an officer empowered under Section 42 of
the Act has been conferred with substantive powers which
are powers available to a police officer for detection and
prevention of crime. The learned Counsel placed heavy
reliance upon the ratio of the judgment of the Constitution
Bench of this Court in the case of Batku Jyoti Sawat Vs.
State of Mysore 1966 (3) SCC 698 which accepted a broader
view, as laid down in the case of Rajaram Jaiswal Vs. State
of Bihar 1964 (2) SCR 752 and State of Punjab Vs. Barkat
Ram 1962 (3) SCR 338. It was submitted that in view of the
ratio of the above judgments, officers empowered under
Section 42 and conferred with powers to enter, search,
seize or arrest are “police officers” properly so called
and hence statements made to such officers would be hit by
the provisions of Section 25 of the Evidence Act. In any
case such officers would come within the meaning of term
“person in authority” and hence the statements recorded by
such officers would be hit by the provisions of Section 24
of the Evidence Act especially since the statements were
not voluntary and had been retracted by the accused.
(d) In the alternate, the submission of Mr. Jain was that
even if it is assumed, without admitting, that Section 67
confers powers to record confessions, the status of a
statement recorded by an officer under Section 42 of the
Act can at best be recorded as “extra judicial confession”
and no conviction can be based solely on the basis of extra
judicial convictions.
(e) It was also argued that in any case the statement
under Section 67 was retracted and as such the confession
in the present case is a retracted confession which ought
to have been investigated and could have been used only to
corroborate other evidence and not as a substantive
evidence itself. He submitted that no conviction can be
based on uncorroborated retracted confessional statement as
held in Noor Aga Vs. State of Punjab 2008 (9) SCALE 681.
(II) Next submission of Mr. Jain was that there was complete
absence of Fair Investigation and Non-compliance of the
provisions of Section 52(3) of the Act-
Pointing out that in the present case the appellant had been
arrested by PW.2 – R. Murugan after recording statement under Section
67 of the Act, the ld. Counsel made a fervent plea to the effect that
it was evident that PW.2 R. Murugan was exercising purported powers
conferred to an officer under Section 42 of the Act.
It was submitted
that Section 52(3) of the Act casts an obligation on an officer
empowered under Section 42 of the Act to forward, without unnecessary
delay every person arrested or article seized to either an officer-in-
charge of a police station or an officer empowered under Section 53.
According to him, since there is an obligation to forward such person
arrested or article seized, to an officer under Section 53 or an
officer-in-charge of the police station, it necessarily follows that
an officer under Section 42 would be different and distinct from an
officer invested with the task of investigation, i.e., either the
officer-in-charge of the police station or an officer empowered under
Section 53 of the Act. In the present case, however, the PW.2 R.
Murugan recorded the statement of the appellant under Section 67 and
thereafter arrested him. He was, therefore, required to forward the
statement as well as the appellant to the Investigating officer in
terms of Section 52(3). Instead, he himself became the Investigating
Officer in the present case, which amounted to non-compliance of
Section 52(3) read with Section 58 of the Act.
Fair investigation
demands existence of an independent investigating agency which is also
contemplated and is evident from the scheme of NDPS Act.
It was
submitted that since Section 58 of the Act provides for punishment for
vexatious entry, search, seizure and arrest, the conduct of the
officer arresting or an officer under Section 42 is subject matter of
investigation by an independent agency and hence PW. 2 R. Murugan
could not have been made an investigating officer in the present case
after he has already acted and exercised powers under Section 42 of
the Act.
(III) Another submission of Mr. Jain was that trial was
initiated because of Non-compliance of the Provisions of Section
57 of the Act –
It was submitted that Section 57 requires that whenever
any person makes any arrest or seizure under the Act, then a report
thereof has to be submitted of such arrest or seizure to his immediate
superior officer. In the present case the raiding party comprised of
PW.6- Gunabalan, Superintendent – PW.7 Aruldoss, Intelligence Officer,
PW.10 Sendhil Murugan, Intelligence Officer and two other staff
members i.e., one Sepoy and one driver. It was submitted that the
senior most officer among the raiding team was PW.6 Gunabalan who was,
therefore, exercising powers under Section 42 of the Act and the other
officers being his subordinates were assisting him in exercise of such
powers. Therefore, the report contemplated under Section 57 ought to
have been made by PW.6 Gunabalan to his immediate superior officer but
instead, in the present case PW.7 Aruldoss has submitted a report to
PW.6 Gunabalan under Section 57 of the Act with regard to seizure and
PW.2 R. Murugan has submitted report to PW.6 Gunabalan under Section
57 with regard to arrest of the appellant herein. It is, thus,
submitted that there is a complete non-compliance of the provisions of
Section 57 of the Act which has vitiated the safeguards provided under
the Act and as such the appellant could not have been convicted.
20. Arguing on behalf of the prosecutor, Mr. S. Nanda Kumar, learned
Counsel submitted that the appellant had given voluntary statement
that discloses his involvement in the commission of the offence
alongwith other accused persons. In the statement he has categorically
admitted having bringing 5.250 kgs of heroin/ narcotic substance from
Maniki Village, District Mandsaur, Rajasthan to Chennai by Jaipur –
Chennai Express along with other co-accused Badrilal Sharma wearing
RPF Uniform till Nelore, Andhra Pradesh. He has also admitted that,
thereafter, the other accused namely Guddu Singh @ Vikram Singh and
Bapulal Jain picked them in a car and proceeded to Chennai. It is on
the way that these accused persons were caught by the respondent’s
officials and based on their confession as well as the material
seized, the case was registered. He also pointed out that it has come
on record that Babulal Jain (declared as absconder) and Guddu Singh
were involved in the similar offence by selling 8 Kgs. of heroin on
earlier occasions which was handed over to Prem @ Kannan, a Srilankan
National, another co-accused in this case. It was the second time that
the accused persons planned to smuggle the heroin to Srilanka.
21. Refuting the submissions of the appellant, it was submitted that
the confessional statement recorded under Section 67 of the NDPS Act
could be acted upon, as the officer recording statement under this
provision under Section 67 is not a “police officer” and, therefore,
such a statement is not hit by the provisions of Section 24 to 27 of
the Evidence Act or Article 20(3) of the Constitution of India. His
submission was that law on this aspect had already been settled by the
judgment of this Court in Kanhaiyalal v. Union of India; 2008 (4) SCC
668 as well as Raj Kumar Karwal v. Union of India; 1990(2) SCC 409.
The learned Counsel pointed out that judgment relied upon by the
appellant pertains to other Acts like Customs Act etc. whereas the
aforesaid judgments specifically dealt with the nature of duties
performed by officers under the NDPS Act and, therefore, on this issue
Raj Kumar (Supra) and Kanhaiyalal (Supra) were the binding precedents.
He also submitted that as per Section 67 of NDPS Act, any officer
referred to in Section 42 of NDPS Act was empowered to obtain a
statement. Once the said statement is made it can also be construed as
confessional statement since there is no specific provision in the Act
to obtain the confessional statement from the accused. Therefore, such
a statement of the appellant was rightly relied upon resulting into
his conviction.
22. The learned Counsel for the state also countered the submission
of the appellant that the officer acting under Section 53 of the NDPS
Act i.e. the investigating officer had to be necessarily different
from the officer who is acting under Section 42 of the NDPS Act. He
submitted that Sections 42, 53 and 67 of NDPS Act do not bar the
officer authorized under the act to conduct, search, seizure,
investigate and enquire into the matter. His submission was that the
depositions of PW.2 – Murugan, Intelligence Officer, PW.6 – Gunabalan,
Superintendent and PW.10 – Senthil Murugan, Intelligence Officer
establish that they are empowered to act under Section 42, 53 and 67
of the NDPS Act.
23. The learned Counsel also highlighted incriminating facts as per
the records viz. the raid team was led by PW.6 - Gunabalan,
Superintendent along with the PW.10 A. Senthil Murugan, Intelligence
Officer and one Aruldoss, Intelligence officer. Also two other
officials conducted the raid and made a search and seizure of the
heroin on 24.10.2004 at 12.00 hrs. at GNT Road, 100 ft. road,
Madhavaram in Chennai where the vehicles come from Nellore, Andhra
Pradesh towards Chennai Junction. After the seizure, PW.2 – Murugan
enquired into the matter as per the direction of the superintendent.
He also obtained the voluntary statement under Section 67 of the NDPS
Act. The accused also gave another statement for supply of heroin to
Guddu Singh. The confessional statement of Badrilal Sharma, who
travelled alongwith accused/ appellant was also recorded. The
confessional statement of absconded accused viz. Babulal Jain is also
on the original record. In addition to that, the Identity Card of
Badrilal Sharma and the train tickets of the appellant and Badrilal
Sharma, as both of them travelled together, have come on record. All
this proves that the appellant was in possession of the heroin 5.250
Kgs. and carried it from Rajasthan to Chennai with intention to
smuggle the same to Srilanka, when he was caught. He thus pleaded that
conviction and sentence of the appellant was rightly recorded by the
courts below, which warranted no interdicting by this court.
24. From the arguments noted above, it would be clear that the
appellant has challenged the conviction primarily on the following
grounds:-
(i) The conviction is based solely on the purported
confessional statement recorded under Section 67 of the NDPS Act
which has no evidentiary value in as much as:
(a) 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 Indian Evidence Act.
(b) 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 Cr.PC.
(c) 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.
(ii) There was absence of fair investigation and non-compliance
of the provisions of Section 52(3) of the NDPS Act. This
submission is primarily based on the argument that same person
cannot be an officer under Section 42 of the NDPS Act as well as
investigating officer under Section 52 of the said Act.
(iii) Non-compliance of Section 57 of the NDPS Act is also
alleged because of the reason that P.W.7 who was the senior most
officer among the raiding team has submitted the report under
Section 57 of the NDPS Act with regard to arrest of the
appellant to P.W.6j. Instead P.W.6 should have submitted the
report of such arrest to P.W.7.
25. We shall take up these arguments in seriatim for our discussion:
Evidentiary value of statement u/s 67 of the NDPS Act.
Before examining this contention of the appellant, it
would be apposite to take note of the provisions of Sections 42, 53
and 67 of the NDPS Act.
These provisions read as under:-
42. Power of entry, search, seizure and arrest without warrant
or authorization.
(1) Any such officer (being an officer superior in rank
to a peon, sepoy or constable) of the departments of
central excise, narcotics, customs, revenue intelligence or
any other department of the Central Government including
para-military forces or armed forces as is empowered in
this behalf by general or special order by the Central
Government, or any such officer (being an officer superior
in rank to a peon, sepoy or constable) of the revenue,
drugs, control, excise, police or any other department of a
State Government as is empowered in this behalf by general
or special order of the State Government, if he has reason
to believe from persons knowledge or information given by
any person and taken down in writing that any narcotic
drug, or psychotropic substance, or controlled substance in
respect of which an offence punishable under this Act has
been committed or any document or other article which may
furnish evidence fo 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 enclosed place,
may between sunrise and sunset-
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials
used in the manufacture thereof and any other
article and any animal or conveyance which he
reason to believe to be liable to confiscation
under this Act and any document or other
article which he has reason to believe may
furnish evidence of the commission of any
offence punishable under this Act or furnish
evidence of holding any illegally acquired
property which is liable for seizure or
freezing or forfeiture under Chapter VA of this
Act; and
(d) detain and search, and, if he thinks proper,
arrest any person whom he has reason to believe
to have committed any offence punishable under
this Act.
Provided that if such officer has reason to believe that a
search warrant or authorization cannot be obtained without
affording opportunity for the concealment of evidence or
facility for the escape of an offender, he may enter and search
such building, conveyance or enclosed place at any time between
sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in
writing under sub-section (1) or records grounds for his
belief under the proviso thereto, he shall within seventy-
two hours send a copy thereof to his immediate official
superior.
“53. Power to invest officers of certain departments with
powers of an officer-in-charge of a police station:-
(1) The Central Government, after consultation with the
State Government, may, by notification published in
the Official Gazette, invest any officer of the
Department of Central Excise, narcotics, Customs,
Revenue Intelligence or the Border Security Force or
any class of such officers with the powers of an
officer-in-charge of Police Station for the
investigation of the offences under this Act.
(2) The State Government may, by notification published
in the official gazette, invest any officer of the
Department of Drugs Control, Revenue or Excise or any
class of such officers with the powers of an officer-
in-charge of a police station for the investigation
of offences under this Act.”
“67. Power to call for information etc.
Any officer referred to in Section 42 who is authorized in
this behalf by the Central Government or a State Government
may, during the course of any enquiry in connection with
the contravention of any provision of this Act:-
(a) Call for information from any person for the purpose
of satisfying himself whether there has been any
contravention of the provision of this Act or any
rule or order made thereunder:
(b) Require any person to produce or deliver any document
or thing useful or relevant to the enquiry
(c) Examine any person acquainted with the facts and
circumstances of the case.”
26. We have already taken note of the contentions of Counsel for the
parties on the interpretation of the aforesaid provisions.
To
recapitulate in brief, the submission of Mr. Jain is that there is no
power in the Section67 of the NDPS Act to either record confessions
or substantive evidence which can form basis for conviction of the
accused.
It is also argued that, in any case, such a statement is not
admissible in evidence as the excise official recording the statement
is to be treated as “police officer” and thus, the evidential value of
the statement recorded before him is hit by the provisions of Section
25 of the Indian Evidence Act.
27. The learned Counsel for the respondent had pointed out that in
the case of Kanhaiyalal vs. Union of India; 2008(4) SCC 668, it has
been categorically held that the officer under Section 63 is not a
police officer. In arriving at that conclusion the two judge Bench
judgment had followed earlier judgment in the case of Raj Kumar Karwal
Vs. Union of India; 1990(2) SCC 409.
28. Had the matter rested at that, the aforesaid dicta laid down by
two judge Bench would have been followed by us.
However, on the
reading of the aforesaid judgment, we find that the only reason to
conclude that an officer under Section 53 of the NDPS Act was not a
police officer was based on the following observations:
These provisions found in Chapter V of the Act show that
there is nothing in the Act to indicate that all the powers
under Chapter XII of the Code, including the power to file a
report under Section 173 of the Code have been expressly
conferred on officers who are invested with the powers of an
officer-in-charge of a police station under Section 53, for the
purpose of investigation of offences under the Act.
29. We find, prima facie, in the arguments of Mr. Jain to be
meritorious when he points out that the aforesaid observations are
without any detailed discussion or the reasons to support the
conclusion arrived at. Mr. Jain’s fervent plea to depart from the view
taken in the said judgment deserved consideration as there is no
provision under the NDPS Act which takes away the power of filing a
report under Section 173 of the Code which is available with an
officer-in-charge of a police station.
He further argued that the
provision of Section 173 are contained in Chapter XII of the Code and
since all powers of an officer in-charge of a police station has been
conferred, there is no legal basis to suggest that the said power is
not available with the officer under Section 53 of the Act.
Above all,
we find that the judgment in Raj Kumar Karwal (supra) was considered
by this court in few cases but without giving imprimatur, as can be
seen below:
30. Abdul Rashid v. State of Bihar; (2001) 9 SCC 578, this Court
after noticing the judgment in Raj Kumar Karwal (supra), chose to
apply the Constitution Bench judgment in the case of Raja Ram Jaiswal
reported as (1964) 2 SCR 752 and observed thus:-
“ Mr. B.B. Singh also brought to our notice a judgment of
this Court in the case of Raj Kumar Karwal v. Union of India in
support of the contention that even a superintendent of excise
under the Bihar and Orissa Excise Act is not a police officer
and as such a confessional statement made to him would be
admissible in evidence. In the aforesaid case, the question for
consideration is whether the officers of the Department of
Revenue Intelligence (DRI) invested with powers of officer in-
charge of a police station under Section 53 are police officers
or not within the meaning of Section 25, and this Court answered
that those officers are not police officers. This decision is in
pari material with the Constitution Bench decision in 1966 and
does not in any way detract from the conclusion of this Court in
Raja Ram which we have already noticed.
In Pon Adithan v. Dy.
Director, Narcotics Control Bureau this question had not
directly been in issue and the only question that was raised is
whether the statement made was under threat and pressure.
It is
obvious that a statement of confession made under threat and
pressure would come within the ambit of Section 24 of the
Evidence Act.
This decision therefore would not be direct
authority on the point in issue.
In the aforesaid premises, the
decision of Raja Ram would apply to the alleged confessional
statement made by the appellant to the superintendent of excise
and therefore would be inadmissible in evidence.”
31. Both the said judgments i.e. Raj Kumar Karwal (supra) as well as
Kanhiyalal (supra) were thereafter considered by this court in Noor
Aga vs. State of Punjab (2008) 9 SCALE 681
where the court, has after
considering the entire scheme of the Customs Act, has held that the
officer under Section 53 of the customs Act is a police officer and
would, therefore, attract the provisions of Section 25 of the Evidence
Act. It observed:
“104. Section 53 of the Act, empowers the Customs Officer with
the powers of the Station House Officers. An officer invested
with the power of a police officer by reason of a special status
in terms of sub-section (2) of section 53 would, thus, be deemed
to be police officers and for the said purposes of Section 25 of
the Act shall be applicable.”
32. No doubt, Abdul Rashid & Noor Aga were the cases under the
Customs Act.
But the reasons for holding custom officer as police
officer would have significant bearing even when we consider the issue
in the context of NDPS Act as well.
It would be more so when the
schemes & purport of the two enactments are kept in mind.
NDPS Act is
purely penal in nature.
In contradistinction, as far as the Customs
Act and the Central Excise Act are concerned, their dominant object is
to protect revenue of the State and penal provisions to punish the
person found offending those laws are secondary in nature.
33. Further, the NDPS Act is a complete code relating to Narcotic
Substances, and dealing with the offences and the procedure to be
followed for the detection of the offences as well as for the
prosecution and the punishment of the accused.
The provisions are
penal provisions which can, in certain cases, deprive a person of his
liberty for a minimum period of 10 years and can also result in
sentences which can extend upto 20 years or even death sentence under
certain circumstances.
The provisions therefore have to be strictly
construed and the safeguards provided therein have to be scrupulously
and honestly followed. [See Baldev Singh (1997) 1 SCC 416 Para 28;
Union of India vs. Bal Mukund (2009) 12 SCC 161 Para 26, 27 & 28;
Balbir Singh vs. State of Haryana (1987) 1 SCC 533].
34. We have also to keep in mind the crucial test to determine
whether an officer is a police officer for the purpose of Section 25 of the Evidence Act viz. the “influence or authority” that an officer is capable of exercising over a person from whom a confession is obtained.
The term “police officer” has not been defined under the
Code or in the Evidence Act and, therefore, the meaning ought to
assessed not by equating the powers of the officer sought to be
equated with a police officer but from the power he possesses from the
perception of the common public to assess his capacity to influence,
pressure or coercion on persons who are searched, detained or
arrested.
The influence exercised has to be, assessed from the
consequences that a person is likely to suffer in view of the
provisions of the Act under which he is being booked. It, therefore,
follows that a police officer is one who:-
(i) is considered to be a police officer in “common parlance”
keeping into focus the consequences provided under the Act.
(ii) is capable of exercising influence or authority over a
person from whom a confession is obtained.
35. We would also like to point out that Mr. Sushil Kumar Jain had
referred to the provisions of the Police Act as well to support his
submission.
The preamble of the Police Act, 1861 (Act 5 of 1861),
which is an Act for the regulation of a group of officers who come
within the meaning of the word “police” provides”
“Whereas it is expedient to re-organize the police and to make
it a more efficient instrument for the prevention and detection
of crime, it is enacted as follows.”
He argued that from the above, it can be seen that the
primary object of any police establishment is prevention and detection
of crime which may be provided for under the Indian Penal Code or any
other specific law enacted for dealing with particular offences and
bring the guilty to justice. It was submitted by him that if special
authorities are created under special enactments for the same purpose
i.e. prevention and detection of crime, such authorities would be
“Police and have to be understood in the said perspective. Sections 23
and 25 of the said Act lay down the duties of the police officers and
Section 20 deals with the authority and provides that they can
exercise such authority as provided under the Police Act and any Act
for regulating criminal procedure. Section 5(2) of the Criminal
Procedure Code provides that “all offences under any other law shall
be investigated, inquired into, tried and otherwise dealt with
according to the same provisions, but subject to any enactment for the
time being in force regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such offences.
36. On the strength of these provisions, the argument of the learned
Counsel for the petitioner was that persons categorized as “police
officers” can do all the activities and the statute gives them the
power to enable them to discharge their duties efficiently. Of the
various duties mentioned in Section 23, the more important duties are
to prevent the commission of offences and public nuisances and to
detect and bring offenders to justice and to apprehend all persons
whom the police officer is legally authorized to apprehend. It is
clear, therefore, in view of the nature of the duties imposed on the
police officer, the nature of the authority conferred and also the
purpose of the Police Act, that the powers which the police officers
enjoy are powers for the effective prevention and detection of crime
in order to maintain law and order. According to the learned Counsel,
a comparison to the powers of the officers under the provisions of the
NDPS Act makes it clear that the duties and responsibilities of the
officers empowered under the Act are comparable to those of the police
officers and, therefore, they ought to be construed as such. It is
submitted that the primary objective of a NDPS Officer is to detect
and prevent crime defined under the provisions of the act and
thereafter the procedure has been prescribed to bring the offenders to
justice. Thus, the officers under the Act are “Police Officers” and
statements made to such officers are inadmissible in evidence.
37. He also drew our attention to the following pertinent
observation of this Court in the case of State of Punjab v. Barkat
Ram; (1962) 3 SCR 338.
“Section 5(2) of the Code of Criminal Procedure also
contemplates investigation of, or inquiry into, offences under
other enactments regulating the manner or place of
investigation, that is, if an act creates an offence and
regulates the manner and place of investigation or inquiry in
regard to the said offence, the procedure prescribed by the Code
of Criminal Procedure will give place to that provided in that
Act. If the said Act entrusts investigation to an officer other
than one designated as police officer, he will have to make the
investigation and not the police officer. In this situation, the
mere use of the words "police officer" in section 25of the
Evidence Act does not solve the problem, having regard to
permissible rules of interpretation of the term "police officer"
in that section. It may mean any one of the following categories
of officers : (i) a police officer who is a member of the police
force constituted under the Police Act; (ii) though not a member
of the police force constituted under the Police Act, an officer
who by statutory fiction is deemed to be a police officer in
charge of a police station under the Code of Criminal Procedure;
and (iii) an officer on whom a statute confers powers and
imposes duties of a police officer under the Code of Criminal
Procedure, without describing him as a police officer or
equating him by fiction to such an officer. Now, which meaning
is to be attributed to the term "police officer" in a
section 25 of the Evidence Act ? In the absence of a definition
in the Evidence Act it is permissible to travel beyond the four
corners of the statute to ascertain the legislative intention.
What was the meaning which the legislature intended it give to
the term "police officer" at the time the said section was
enacted ?
That section was taken out of the Criminal Procedure
Code, 1861 (Act 25 of 1861) and inserted in the Evidence Act of
1872 as section 25.
Stephen in his Introduction to the Evidence
Act states at p. 171 thus :
"I may observe, upon the provisions relating to them, that
sections 25, 26 and 27 were transferred to the Evidence Act
verbatim from the Code of Criminal Procedure, Act XXV of 1861.
They differ widely from the law of England, and were inserted in
the Act of 1861 in order to prevent the practice of torture by
the police for the purpose of extracting confessions from
persons in their custody. "
So too, Mahmood, J., in Queen Empress v. Babulal I.L.R(1884) . 6 All.
509), gave the following reasons for the enactment of section 25 of
the Evidence Act at p. 523.
"........... the legislature had in view the malpractices of
police officers in extorting confessions from accused persons in
order to gain credit by securing convictions, and that those
malpractices went to the length of positive torture; nor do I
doubt that the Legislature, in laying down such stringent rules,
regarded the evidence of police officers as untrustworthy, and
the object of the rules was to put a stop to the extortion of
confessions, by taking away from the police officers as the
advantage of proving such exported confessions during the trial
of accused persons. "
It is, therefore, clear that section 25 of the Evidence Act was
enacted to subserve a high purpose and that his to prevent the
police from obtaining confessions by force, torture or
inducement. The salutary principle underlying the section would
apply equally to other officers, by whatever designation they
may be known, who have the power and duty to detect and
investigate into crimes and is for that purpose in a position to
extract confessions from the accused.
“..Shortly stated, the main duties of the police are the
prevention and detection of crimes. A police officer appointed
under the Police Act of 1861 has such powers and duties under
the Code of Criminal Procedure, but they are not confined only
to such police officers. As the State's power and duties
increased manifold, acts which were at one time considered to be
innocuous and even praiseworthy have become offences, and the
police power of the State gradually began to operate on
different subjects.
Various Acts dealing with Customs, Excise,
Prohibition, Forest, Taxes etc., came to be passed, and the
prevention, detection and investigation of offences created by
those Acts came to be entrusted to officers with nomenclatures
appropriate to the subject with reference to which they
functioned.
It is not the garb under which they function that
matters, but the nature of the power they exercise or the
character of the function they perform is decisive.
The
question, therefore, in each case is, does the officer under a
particular Act exercise the powers and discharge the duties of
prevention and detection of crime? If he does, he will be a
police officer.”
38. In our view the aforesaid discussion necessitates a re-look
into the ratio of Kanhiyalal Case. It is more so when this Court has
already doubted the dicta in Kanhaiyalal (supra) in the case of
Nirmal Singh Pehalwan (2011) 12 SCC 298 wherein after noticing both
Kanhiyalal as well as Noor Aga, this Court observed thus:
“15. We also see that the Division Bench in Kanhaiyalal case;
2008 (4) SCC 668; (2008) 2 SCC (Crl.) 474, had not examined the
principles and the concepts underlying Section 25 of the
Evidence Act vis.-a-vis. Section 108 of the Customs Act the
powers of Custom Officer who could investigate and bring for
trial an accused in a narcotic matter. The said case relied
exclusively on the judgment in Raj Kumar's case (Supra).
The
latest judgment in point of time is Noor Aga's case which has
dealt very elaborately with this matter.
We thus feel it would
be proper for us to follow the ratio of the judgment in Noor
Aga's case particularly as the provisions of Section 50 of the
Act which are mandatory have also not been complied with.”
39. For the aforesaid reasons, we are of the view that the matter
needs to be referred to a larger Bench for re-consideration of the
issue as to whether the officer investigating the matter under NDPS
Act would qualify as police officer or not.
40. In this context, the other related issue viz. whether the
statement recorded by the investigating officer under Section 67 of
the Act can be treated as confessional statement or not, even if the
officer is not treated as police officer also needs to be referred to
the larger Bench, inasmuch as it is intermixed with a facet of the
1st issue as to whether such a statement is to be treated as
statement under Section 161 of the Code or it partakes the character
of statement under Section 164 of the Code.
41. As far as this second related issue is concerned we would also
like to point out that Mr. Jain argued that 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 number of judgments and there is a
qualitative difference between the two sets of provisions.
In so far
as Section 108 of the Customs Act is concerned, it gives power to the
custom 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 Andhra Pradesh High Court in the Case of Shahid Khan
vs. Director of Revenue Intelligence; 2001 (Criminal Law Journal)
3183.
42. The Registry is accordingly directed to place the matter before Hon’ble the Chief Justice for the decision of this appeal by a larger Bench after considering the issues specifically referred as above.
43. We find from the record that as against the sentence of 10
years awarded to the appellant he has already undergone more than 9
years of sentence.
In these circumstances, we deem it a fit case to
suspend further sentence till the disposal of this appeal by the
larger Bench.
The appellant shall be released on bail on furnishing
security in the sum of Rs.50,000/- (Rupees Fifty Thousand) with two
sureties of the same amount, to the satisfaction of the trial court.
…………………………….J.
[A.K. PATNAIK]
…………………………….J.
[A.K. SIKRI]
New Delhi,
October 8, 2013
In our view the aforesaid discussion necessitates a re-look
into the ratio of Kanhiyalal Case. It is more so when this Court has
already doubted the dicta in Kanhaiyalal (supra) in the case of
Nirmal Singh Pehalwan (2011) 12 SCC 298 wherein after noticing both
Kanhiyalal as well as Noor Aga, this Court observed thus:
“15. We also see that the Division Bench in Kanhaiyalal case;
2008 (4) SCC 668; (2008) 2 SCC (Crl.) 474, had not examined the
principles and the concepts underlying Section 25 of the
Evidence Act vis.-a-vis. Section 108 of the Customs Act the
powers of Custom Officer who could investigate and bring for
trial an accused in a narcotic matter. The said case relied
exclusively on the judgment in Raj Kumar's case (Supra).
The
latest judgment in point of time is Noor Aga's case which has
dealt very elaborately with this matter.
We thus feel it would
be proper for us to follow the ratio of the judgment in Noor
Aga's case particularly as the provisions of Section 50 of the
Act which are mandatory have also not been complied with.”
whether the officer investigating the matter under NDPS
Act would qualify as police officer or not.
whether the
statement recorded by the investigating officer under Section 67 of
the Act can be treated as confessional statement or not, even if the
officer is not treated as police officer also needs to be referred to
the larger Bench, inasmuch as it is intermixed with a facet of the
1st issue as to whether such a statement is to be treated as
statement under Section 161 of the Code or it partakes the character
of statement under Section 164 of the Code.
In so far
as Section 108 of the Customs Act is concerned, it gives power to the
custom 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 Andhra Pradesh High Court in the Case of Shahid Khan
vs. Director of Revenue Intelligence; 2001 (Criminal Law Journal)
3183.
42. The Registry is accordingly directed to place the matter before Hon’ble the Chief Justice for the decision of this appeal by a larger Bench after considering the issues specifically referred as above.
We find from the record that as against the sentence of 10
years awarded to the appellant he has already undergone more than 9
years of sentence. In these circumstances, we deem it a fit case to
suspend further sentence till the disposal of this appeal by the
larger Bench. The appellant shall be released on bail on furnishing
security in the sum of Rs.50,000/- (Rupees Fifty Thousand) with two
sureties of the same amount, to the satisfaction of the trial court.
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 152 OF 2013
TOFAN SINGH ….APPELLANT
VERSUS
STATE OF TAMIL NADU ….RESPONDENT
J U D G M E N T
A.K. Sikri, J
1. The appellant herein, Tofan Singh, was listed as Accused No. 3 in
the trial for the offences under Section 8(c) r/w Section 21 (c) of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter to be referred as the NDPS Act) as well as for the
offences under Section 8(c) r/w Section 29 of the NDPS Act.
This
trial, conducted by the Special Judge, Additional Special Court,
under NDPS Act, Chennai, resulted in the conviction of the
appellant holding him guilty of the offences under the aforesaid
provisions of the Act.
As a consequence of the said judgment dated
18.12.2009 convicting him under the provisions of the NDPS Act, the
learned Special Judge sentenced the appellant to undergo 10 years
rigorous imprisonment and to pay a fine of Rs. one lakh.
In default
whereof, it was ordered that the appellant would undergo rigorous
imprisonment for a further period of one year.
Identical sentences
were imposed for the offences under Section 8 (c) read with Section
21 & 29 of the NDPS Act, 1985 with the direction that both the
sentences had to be undergone by the appellant concurrently.
2. Appeal filed by the appellant against the order of the Special
Judge, Addl. Special Court, has been dismissed by the High Court of
Judicature at Madras vide judgment dated 18.6.2012 thereby
maintaining the conviction as well as the sentence awarded by the
Special Judge, Addl. Special Court under NDPS Act, Chennai.
Dissatisfied and undeterred by the judgments of the Courts below,
the appellant preferred the Special Leave Petition in which the
leave was granted on 18.1.2013.
However, at the same time, bail
application preferred by the appellant was rejected and appeal was
posted for hearing.
This is how the present appeal arises against
the impugned judgment dated 18.6.2012 of the High Court of
Judicature at Madras.
3. The allegations against the appellant (along with five others out of
whom two are absconding) were that 5.250 Kgs of heroin was seized
from these accused persons which they were carrying and attempting
to export out of India.
As per the complaint filed by the
Intelligence Officer, NCB, Chennai in this behalf, the prosecution
case is stated, in a summary form, as below:-
4. On 23.10.2004, the Intelligence Officer, NCB, South Zone Unit,
Mr. L.S. Aruldoss (PW-7), received information at about 9.00 p.m. that
one Prem @ Kannan @ Sudeshwaran resident of Nanganallur, Chennai was
procuring Narcotic Drugs from Guddu Singh resident of Rajasthan with
the assistance of one Bapulal resident of Pattalam, Chennai, for
trafficking it from Chennai to Srilanka and
that they had made
arrangements for the supply of 5 Kgs. of heroin through his two
persons, who were identified to Bapulal by Guddusingh and those two
persons were arriving at Chennai on the next day by Jaipur Express.
It
was further reported that the said Bapulal and Kannan had planned to
leave at 10.00 p.m. on 23.10.2004 to Nellore, Andhra Pradesh, in a
white Ambassador Car bearing Registration No. TN-01-K0923 and on
reaching Chennai, Prem @ Kannan @ Sudeshwaran would receive the heroin
and smuggle it out to Srilanka.
5. After receiving the information, Mr. L.S. Aruldoss, the
Intelligence Officer (PW-7) discussed the matter with other officers
namely Mr. Gunabalan (PW-6) and Mr. A. Sendhil Murugan (PW-10)
resulting into the orders by Mr. Gunabalan (PW-6) to proceed with the
case.
Accordingly, on 24.10.2004, at about 9.00 a.m., P.W.6, P.W.7,
and P.W.10 and two other staff members viz., one Sepoy and Driver left
NCB Office and reached the scene of occurrence at 11.00 a.m.
On the
instruction of P.W.6, P.W.7 procured two independent witnesses viz. S.
Gopi (P.W.8) and one Krishnamurthy (not examined).
They intercepted
the Ambassador Car bearing Registration No. TN-01-K0923 and found that
there were six passengers inside the car.
On the front seat, there
were two drivers namely, Satyakeerthi and Mariappan and next to driver
Mariappan, the appellant herein was sitting.
On the back seat Prem @
Kannan @ Sudeshwaran (Accused No. 2) of Srilanka, Bapulal (Accused No.
1) of Chennai & Badrilal Sharma (Accused No. 4) were seated.
After the
police party enquired as to whether there were any Narcotic Drugs,
Accused No. 1 & 2 who were seated on the back seat, took out one green
colour bag from beneath their seat and handed it over to Mr. Aruldoss
(P.W.7) stating that it contains 5 Kgs. of heroin.
The recoveries
were, thereafter, effected and the accused persons were arrested for
commission of offences under the NDPS Act.
The two drivers of the
ambassador car were, thereafter, allowed to go.
The appellant and the
other accused persons were arrested by the raiding party.
6. While the four accused persons including the appellant
were arrested, the other two accused namely Guddu Singh @ Vikram Singh
and Ravi could not be arrested and were absconding.
The statements of
the arrested accused persons were recorded by Mr. A. Sendhil Murugan,
Intelligence Officer.
The appellant also gave his statement under Section 67 of the NDPS Act as per which he confessed to the commission of the crime.
7. The case was, thereafter, handed over to Mr. R. Murugan
(P.W.2) for investigation. After completing the investigation, he
filed a report under Section 173 of the Code of Criminal Procedure,
1973 before the Special Judge under NDPS Act. Charges were framed and
the matter went on trial. The prosecution examined as many as 10
witnesses. Among them were Mr. L.S. Aruldoss - Intelligence Officer,
NCB (P.W.7), Mr. Gunabalan – Superintendent (P.W.6), Mr. A. Sendhil
Murugan (P.W.10), Mr. R. Murugan (P.W.2), Smt. Saraswathy
Chakravarthy, Chemical Examiner in Customs House Laboratory at Chennai
(P.W.4), Mr. T. Sridhar (P.W.5).
8. The information relating to the commission of the offence
has been taken note of and discussed by the Trial Court as well as the
High Court in the impugned judgment in detail. It is not necessary to
burden this judgment with all those details as our purpose would be
served by referring to those aspects which are essential for the
purposes of the present appeal. We may state that the prosecution had
also produced Exs. P1 to P81 and M.Os 1 to 19 during the trial.
After
examining the prosecution witnesses, statements of the accused persons
under Section 313 of the Code of Civil Procedure (hereinafter to be
referred as ‘Code’)were recorded.
The accused persons denied the same
and stated as follows:
A-1: Denied the incriminating evidence against him and stated
that he was compelled to come to the NCB Office and a false
case is foisted against him and gave a written statement
stating that the NCB officers came to his house between
12.30 to 1.00 p.m. on 25.10.2004 and took him to their
office at Chennai in the presence of his wife and his
children and have forcibly taken the signatures on some
papers written in Hindi and that he is not connected with
the other accused and that he was not occupant of the Car
as alleged in the case and he was not aware of the
contraband seized and examined defence witnesses on his
behalf namely Mr. Vinay, son of A-1, D.W.1 and Dr.
Somasundaram D.W.2.
A-2: Denying the incriminating evidence against him stated that
he was taken from Nanganallur to the NCB Office and that he
was not allowed to talk before the Judge during remand.
A-3: Stated that summon was not issued to him and Rs. 1,600/-
and train tickets were seized from him at Chennai Central
Railway Station and he was beaten and forced to sign in the
NCB office on blank papers and stated that it is a false
case.
A-4: Stated that he was arrested at Nellore Railway Station
while he was coming from train and his signatures were
obtained forcibly and the Intelligence Officer Mr.
Karthikeyan (P.W.3) has foisted a false case against him
due to quarrel in the train between him and the
Intelligence Officer and that he was working in the RPF and
is not connected with the contraband seized and gave a
written statement stating that he travelled in mufti to go
to Tirupathy and got down at Chennai Central Railway
Station and was arrested and false case was foisted against
him due to wordy quarrel with the officer and that Section
67 statement was obtained by force and torture and that he
was not carrying any Narcotic Drug.
Thereafter, the accused persons produced two witnesses who
were examined and one document Ex. D1 was marked.
9. Defence evidence is as follows:-
DW.1: The NCB Officers came at about 1.00 p.m on 25.10.2004 and
searched the house of A-1 and they obtained his
signature and his mother’s signature in blank papers by
threatening them. A-2 has not gone anywhere during
September and October of 2004 and he was at home doing
cloth business. A-1 was taken from his office and
arrested. The other accused had never contacted A-2 over
phone at any time.
DW.2: Dr. Somasundaram has recommended A-1 for treatment for
Paralysis at Royapettah Hospital and his case sheet
containing 21 pages for treatment from January, 2008 to
25.9.2008 is Ex. D.1.
10. It would be relevant to point that two of the accused persons
namely Guddu Singh @ Vikram Singh and Ravi were absconding and they
could not be procured during the trial, resulting into splitting up of
case as new C.C. No. 9 of 2007.
Thereafter, the trial proceeded
against the other four accused persons which led to their conviction,
as mentioned above.
All these four accused persons had filed the
appeal which has been dismissed by the High Court of Judicature at
Madras vide impugned Judgment.
However, out of the four convicted
persons, only the appellant herein has preferred the present appeal.
JUDGMENT OF THE TRIAL COURT:
11. The learned Trial Court in its judgment dated 18.12.2009, after
pointing out the main prosecution evidence as well as the defence,
noted that the gist of the prosecution case was that the six accused
persons had hatched criminal conspiracy at Nellore, Andhra Pradesh,
Chennai and Srilanka to procure, possess, transport and attempt to
export out of India 5.250 Kgs. of heroin to Srilanka. Accused No. 2
had indulged in financing for purchase of heroin for which he entered
India without registering himself as a foreigner. The heroin, which
was seized, was being taken for the said export which was intercepted
in the manner stated below:-
“As per the prosecution, after the information was received by
Mr. L.S. Aruldoss, Intelligence Officer (P.W.9) on 23.10.2004
and discussed with Mr. Gunabalan, Superintendent (P.W.6) and Mr.
A. Sendhil Murugan, Intelligence Officer (P.W.10) and further
action was sanctioned, the raiding party consisting of PW.6,
PW.7, PW.10 with Sepoy and driver, left the NCB office in the
vehicle Mini Bus bearing Registration No. TN 09 C 3113 on
24.10.2004 at 9.00 a.m and had reached GNT Road 100’ Road
Junction at 11.00 a.m. Two independent witnesses namely, Mr. S.
Gopi (P.W.8) and Krishnamurthy were also associated. When they
were mounting surveillance at about 12.00 noon, they noticed
Ambassador Car bearing Regd. No. TN 01 K 0923 coming towards
Chennai which was intercepted by the raiding authority and the
heroin in question seized in the manner already explained above.
The case argued by the prosecution was that the conspiracy
hatched between Accused No. 1 to 4 was proved by the seizure of
Ex. P-4 train ticket PNR No. 840-7161615 dt. 14.10.2004 and Ex.
P-41 the booking particulars disclose the name of A-2, A-2 and
Rajesh and the place of travel from Mumbai to madras and another
passenger name through it was mentioned in it was given as
Shahid by A-1 in his further voluntary statement in Hindi Ex. P-
6 of which the free English translation is Ex. P-77 in which it
is stated that Shahid is the person through whom money was sent
to Guddu Singh which in fact is within the special knowledge of
A-1. In the same manner Ex. P-5 telephone bills were seized from
the residence of A-1 and when A-21 was questioned about the
telephone numbers Faroth and Sarola A-2 has stated in Ex. P-77
that these numbers belong to Guddu Singh and his brother through
which he used to talk about smuggling of heroin. In the English
translation of voluntary statement of A-3, Ex. P-78 of which the
Hindi version is Ex. P-10 it is stated that A-3 met Guddu Singh
who introduced him to A-4 and told him that A-4 is working in
RPF, Bhawani Mandi, Rajasthan and that A-4 would travel with him
in uniform in Jaipur Chennai Express and handed over a bag
containing 5 Kgs. of heroin stating that it should be handed
over to A-1 at Nellore who was already introduced to A-3 on
13.10.2004. The version of A-3 in Ex. P-78 that he travelled in
Jaipur Chennai Express from Shamgarh is corroborated by the
seizure of two train tickets Ex. P-61 and Ex. P-62 from Shamgarh
to Chennai from A-3 and I.D. Card of A-4 Ex. P-63 discloses that
A-3 was working in RPF. Ex. P-79 is the voluntary statement of A-
4 which is free english translation of the hindi statement of
Ex. P-74 in which A- has stated that he boarded Jaipur Express
on 22.10.2004 and met A-3 in Bhopal in the train and that he
knew that A-3 brought Narcotic Drug with him. Conspiracy could
be proved only through the conduct of the accused. A-3 and A-4
had travelled with the contraband in the train and have met A-1
and A-2 at Nellore and handed over the same and boarded in the
ambassador car only due to the previous meeting of minds by
fixing the time and place of handing over the contraband to the
concerned accused. From the proved conduct of A-1 to A-4 it is
clear that they have involved themselves in the illegal
trafficking of heroin. Ex. P-21 call analysis discloses that
07425-284050 in the name of Bhuvan Singh of M.P. was frequently
in touch with A-2 and A-2 mobile numbers A-1 in his voluntary
statement Ex. P-2 has stated that Guddu Singh Number is 07425-
284050 through which he used to contact A-3 and Guddu Singh.
Hence, the prosecution contended that the charges against A-1 to
A-4 for possession transportation of heroin for Export from
India and Conspiracy U/s. 8(c) r/2. 21 (c) and 29 of NDPS Act
were well proved.”
12. In so far as the charge under Section 28 of the NDPS Act is
concerned, the trial court held that the said charge was not proved
against the accused persons, in as much as at the stage of preparation
to commit the offence of illegal export of contraband, the car was
intercepted and search and seizure conducted which resulted in the
recovery of the contraband. As such, the accused persons were
apprehended in the middle of the operation and since the attempt to
commit the offence of export had not yet begun, it could not be said
that the accused persons had committed any act which could be
considered as a step towards the commission of offence of export of
the contraband. The accused persons were, thus, acquitted of the
charge under Section 28 of the NDPS Act.
13. Likewise, the trial court held that charge under Section 27A of
the NDPS Act foisted upon the accused No. 2 was not proved as no oral
or documentary evidence was produced in the form of Bank Pass Book or
income particulars or documents regarding the money transactions
between the seller and the purchaser of heroin.
Moreover, there was no
oral or documentary evidence to show that the Accused No. 2 had failed
to register himself as a foreigner or that he had entered into India
without valid and legal documents and thus, he was acquitted of the
charge under Section 3(3) of the Passport (Entry into India) Act, 1920
read with Rule 3 (a) as well as under Section 14 of the Foreigners
Act, 1946.
14. While discussing the main charge leveled under Section 8(c) read
with Section 21(c) and 29 of the NDPS Act, the trial court noted that
the defence counsel had sought for discard of the prosecution case on
the following grounds:
(i) Voluntary statement recorded under Section 67 of the NDPS
Act had been retracted and so, they had no evidentiary
value.
(ii) There was violation of Section 50 of the NDPS Act as there
was non-compliance of the provisions thereof .
(iii) Driver of the vehicle was not examined which was fatal to
the prosecution case.
(iv) Sample sent for analysis and the seized contraband were
not one and the same.
(v) There was no link evidence which vitiated the trial.
(vi) Names of Accused No. 3 (the appellant) and Accused No. 4
were not mentioned in the information which was received by
the Intelligence Officer and, therefore, they were wrongly
included in the charge sheet.
(vii) There was a violation of standing order 1/88 in as much as
samples were not submitted to the Chemical Examiner within
72 hours of seizure and the report was not submitted within
15 days of receipt of contraband for analysis.
(viii) Statements under Section 67 were not recorded in
accordance with law, as no statutory warning under Section
164 of the Code of Criminal Procedure was given to the
accused persons before recording the statement.
15. The trial court discussed the arguments predicated on the
aforesaid defence but found the same to be meaningless. On the basis
of prosecution evidence, the trial court concluded that the
prosecution was able to prove the charges under Section 8(c) read with
Section 21(c) and Section 29 of the NDPS Act and convicted and
sentenced the accused persons in the manner mentioned in the beginning
of this judgment.
JUDGMENT OF THE HIGH COURT:
16. A perusal of the impugned judgment reveals that as many as six
arguments were advanced before the High Court, attacking the findings
of the learned Trial Court. Taking note of these grounds of appeal,
the High Court framed the questions in Para 12 of the judgment. We
reproduce hereinbelow those six questions formulated by the High Court
which reflected the nature of defence:
(i) Whether Section 50 of NDPS Act is complied with or not?
(ii) Whether the provision of Section 42 of NDPS Act is
complied with or not?
(iii) Whether non-examination of drivers and non-seizure of
vehicle/ car are fatal to the case of the prosecution?
(iv) Whether Section 67 statement of the accused is reliable?
(v) Whether Accused No. 2 is entitled to invoke Section 30 of
NDPS Act?
(vi) Whether conviction and sentence passed by the trial court
is sustainable.
17. Obviously, all these questions have been answered by the High
Court against the appellant herein as the outcome of the appeals has
gone against the appellant. However, it is not necessary to mention
the reasons/ rationale given by the High Court in support of its
conclusion in respect of each and every issue. We say so because of
the reason that all the aforesaid contentions were not canvassed
before us in the present appeal. Thus, eschewing the discussion which
is not relevant for these appeals, we would be narrating the reasons
contained in the impugned judgment only in respect of those grounds
which are argued by Mr. Sushil Kumar Jain, learned Counsel appearing
for the appellant, that too while taking note of and dealing with
those arguments.
THE ARGUMENTS:
18. After giving brief description of the prosecution case, in so
far as the alleged involvement of the appellant is concerned. Mr.
Sushil Kumar Jain drew our attention to the following aspects as per
the prosecution case itself:
(a) In the present case in the prior secret information with
the police, there was no prior information with regard to
the appellant herein. The secret information (Ex. P-72)
does not disclose the name of the appellant at all.
(b) On the date of incident also, the appellant was found
sitting on the front seat alongwith the two drivers who
have been let off by the investigating agency itself and
the ambassador car from which the recoveries had been
effected has also not been seized. The said drivers could
have been the best witnesses but they have not been
examined by the prosecution.
(c) The recovery of the narcotic substance was made at the
instance of A1 and A2 (and not the appellant herein), who
while sitting on the back seat took out a green colour bag
from beneath their seat and handed it over to PW.7. The
appellant cannot be said to be in conscious possession of
the narcotic substance.
(d) In the search conducted of the appellant herein, the
raiding party found Indian currency of Rs. 680/- (vide Ex.
P-11) which is M.O. 15 and two second class train tickets
from Shamgarh to Chennai. Thus no incriminating material
has been recovered from the appellant. Further there is
also no recovery of any mobile phone from the appellant
herein which could link the appellant with the other co-
accused.
(e) The prosecution case hinges solely upon the confessional
statement of the appellant herein (Ex. P-9), which was
recorded by PW.2 – R. Murugan under Section 67 of the Act,
and the same person acted as the investigating officer in
the present case.
19. From the above, Mr. Jain argued that there was no evidence worth
the name implicating the appellant except the purported confessional
statement of the appellant recorded under Section 67 of the NDPS Act.
After drawing the aforesaid sketch, Mr. Jain endeavoured to fill
therein the colours of innocence in so far as the appellant is
concerned with the following legal submissions:-
(I) It was argued that the conviction of the appellant is
based upon a purported confessional statement (Ex. P-9] recorded
by PW.2 R. Murugan under the provisions of Section 67 of the
NDPS Act, which did not have any evidentiary value. Mr. Jain
submitted in this behalf that:
(a) There is no power under Section 67 of the NDPS Act to
either record confessions or substantive evidence which can form
basis for conviction of an accused, in as much as:
(i) The scheme of the Act does not confer any power upon
an officer empowered under Section 42 to record
confessions since neither a specific power to record
confession has been conferred as was provided under
Section 15 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (TADA) or under Section 32 of
the Prevention of Terrorism Act, 2002 (POTA) nor the
power under Section 67 is a power to record
substantive “evidence” as in Section 108 of the
Customs Act or Section 14 of the Central Excise Act
which are deemed to be judicial proceedings as
specifically provided under Section 108(4) of the
Customs Act or Section 14(3) of the Central Excise
Act.
(ii) The powers under Section 67 has been conferred upon
an officer under Section 42 so that such officer can
effectively perform his functions. The power under
Section 67 is incidental to and intended to enable an
officer under Section 42 to effectively exercise his
powers of entry, search, seizure or arrest which is
provided under Section 42 of the Act. The powers
under Section 67 are powers to “call for information”
which information can thereafter form the basis for
satisfaction of “reasons to believe by personal
knowledge or information” appearing in Section 42 and
which a jurisdictional basis and a pre-condition to
exercise powers under Section 42 of the Act. Absence
of reasons to believe or information would render the
exercise under Section 42 of the Act bad in law and
hence in order to derive the said information power
has been conferred under Section 67 to an officer
empowered under Section 42. This statement is,
therefore, merely “Information” subject to
investigation and cannot be treated as substantive
evidence.
(b) Pitching this argument to the next level, it was
submitted that the power under Section 67(c) of the Act is
merely a power to examine any person acquainted with the
facts and circumstances of the case. Such statements are
not required in law to be truthful as provided under
Section 161(2) of the Criminal Procedure Code, which
required the person making statement to a police officer
under Section 161 Cr.P.C. to make a true statement. Even
such a statement made under Section 161 Cr. P.C. is not a
substantive evidence on which a conviction can be based.
Statements under Section 67 are not required in law to be
given truthfully and hence cannot in any case be treated to
be a substantive evidence. Further statement under Section
67 are not recorded after administration of oath as is
required under Section 164(5) of the Criminal Procedure
Code, the officers are not competent to administer oaths
and, therefore, the statements under Section 67 cannot be
substantive evidence for recording conviction.
(c) Taking the arguments to a still higher pedestal, Mr.
Jain’s effort was to demonstrate that the officer recording
the statement was a police officer and, therefore, such a
statement was hit by Section 25 of the Indian Evidence Act.
He submitted that an officer empowered under Section 42 of
the Act has been conferred with substantive powers which
are powers available to a police officer for detection and
prevention of crime. The learned Counsel placed heavy
reliance upon the ratio of the judgment of the Constitution
Bench of this Court in the case of Batku Jyoti Sawat Vs.
State of Mysore 1966 (3) SCC 698 which accepted a broader
view, as laid down in the case of Rajaram Jaiswal Vs. State
of Bihar 1964 (2) SCR 752 and State of Punjab Vs. Barkat
Ram 1962 (3) SCR 338. It was submitted that in view of the
ratio of the above judgments, officers empowered under
Section 42 and conferred with powers to enter, search,
seize or arrest are “police officers” properly so called
and hence statements made to such officers would be hit by
the provisions of Section 25 of the Evidence Act. In any
case such officers would come within the meaning of term
“person in authority” and hence the statements recorded by
such officers would be hit by the provisions of Section 24
of the Evidence Act especially since the statements were
not voluntary and had been retracted by the accused.
(d) In the alternate, the submission of Mr. Jain was that
even if it is assumed, without admitting, that Section 67
confers powers to record confessions, the status of a
statement recorded by an officer under Section 42 of the
Act can at best be recorded as “extra judicial confession”
and no conviction can be based solely on the basis of extra
judicial convictions.
(e) It was also argued that in any case the statement
under Section 67 was retracted and as such the confession
in the present case is a retracted confession which ought
to have been investigated and could have been used only to
corroborate other evidence and not as a substantive
evidence itself. He submitted that no conviction can be
based on uncorroborated retracted confessional statement as
held in Noor Aga Vs. State of Punjab 2008 (9) SCALE 681.
(II) Next submission of Mr. Jain was that there was complete
absence of Fair Investigation and Non-compliance of the
provisions of Section 52(3) of the Act-
Pointing out that in the present case the appellant had been
arrested by PW.2 – R. Murugan after recording statement under Section
67 of the Act, the ld. Counsel made a fervent plea to the effect that
it was evident that PW.2 R. Murugan was exercising purported powers
conferred to an officer under Section 42 of the Act.
It was submitted
that Section 52(3) of the Act casts an obligation on an officer
empowered under Section 42 of the Act to forward, without unnecessary
delay every person arrested or article seized to either an officer-in-
charge of a police station or an officer empowered under Section 53.
According to him, since there is an obligation to forward such person
arrested or article seized, to an officer under Section 53 or an
officer-in-charge of the police station, it necessarily follows that
an officer under Section 42 would be different and distinct from an
officer invested with the task of investigation, i.e., either the
officer-in-charge of the police station or an officer empowered under
Section 53 of the Act. In the present case, however, the PW.2 R.
Murugan recorded the statement of the appellant under Section 67 and
thereafter arrested him. He was, therefore, required to forward the
statement as well as the appellant to the Investigating officer in
terms of Section 52(3). Instead, he himself became the Investigating
Officer in the present case, which amounted to non-compliance of
Section 52(3) read with Section 58 of the Act.
Fair investigation
demands existence of an independent investigating agency which is also
contemplated and is evident from the scheme of NDPS Act.
It was
submitted that since Section 58 of the Act provides for punishment for
vexatious entry, search, seizure and arrest, the conduct of the
officer arresting or an officer under Section 42 is subject matter of
investigation by an independent agency and hence PW. 2 R. Murugan
could not have been made an investigating officer in the present case
after he has already acted and exercised powers under Section 42 of
the Act.
(III) Another submission of Mr. Jain was that trial was
initiated because of Non-compliance of the Provisions of Section
57 of the Act –
It was submitted that Section 57 requires that whenever
any person makes any arrest or seizure under the Act, then a report
thereof has to be submitted of such arrest or seizure to his immediate
superior officer. In the present case the raiding party comprised of
PW.6- Gunabalan, Superintendent – PW.7 Aruldoss, Intelligence Officer,
PW.10 Sendhil Murugan, Intelligence Officer and two other staff
members i.e., one Sepoy and one driver. It was submitted that the
senior most officer among the raiding team was PW.6 Gunabalan who was,
therefore, exercising powers under Section 42 of the Act and the other
officers being his subordinates were assisting him in exercise of such
powers. Therefore, the report contemplated under Section 57 ought to
have been made by PW.6 Gunabalan to his immediate superior officer but
instead, in the present case PW.7 Aruldoss has submitted a report to
PW.6 Gunabalan under Section 57 of the Act with regard to seizure and
PW.2 R. Murugan has submitted report to PW.6 Gunabalan under Section
57 with regard to arrest of the appellant herein. It is, thus,
submitted that there is a complete non-compliance of the provisions of
Section 57 of the Act which has vitiated the safeguards provided under
the Act and as such the appellant could not have been convicted.
20. Arguing on behalf of the prosecutor, Mr. S. Nanda Kumar, learned
Counsel submitted that the appellant had given voluntary statement
that discloses his involvement in the commission of the offence
alongwith other accused persons. In the statement he has categorically
admitted having bringing 5.250 kgs of heroin/ narcotic substance from
Maniki Village, District Mandsaur, Rajasthan to Chennai by Jaipur –
Chennai Express along with other co-accused Badrilal Sharma wearing
RPF Uniform till Nelore, Andhra Pradesh. He has also admitted that,
thereafter, the other accused namely Guddu Singh @ Vikram Singh and
Bapulal Jain picked them in a car and proceeded to Chennai. It is on
the way that these accused persons were caught by the respondent’s
officials and based on their confession as well as the material
seized, the case was registered. He also pointed out that it has come
on record that Babulal Jain (declared as absconder) and Guddu Singh
were involved in the similar offence by selling 8 Kgs. of heroin on
earlier occasions which was handed over to Prem @ Kannan, a Srilankan
National, another co-accused in this case. It was the second time that
the accused persons planned to smuggle the heroin to Srilanka.
21. Refuting the submissions of the appellant, it was submitted that
the confessional statement recorded under Section 67 of the NDPS Act
could be acted upon, as the officer recording statement under this
provision under Section 67 is not a “police officer” and, therefore,
such a statement is not hit by the provisions of Section 24 to 27 of
the Evidence Act or Article 20(3) of the Constitution of India. His
submission was that law on this aspect had already been settled by the
judgment of this Court in Kanhaiyalal v. Union of India; 2008 (4) SCC
668 as well as Raj Kumar Karwal v. Union of India; 1990(2) SCC 409.
The learned Counsel pointed out that judgment relied upon by the
appellant pertains to other Acts like Customs Act etc. whereas the
aforesaid judgments specifically dealt with the nature of duties
performed by officers under the NDPS Act and, therefore, on this issue
Raj Kumar (Supra) and Kanhaiyalal (Supra) were the binding precedents.
He also submitted that as per Section 67 of NDPS Act, any officer
referred to in Section 42 of NDPS Act was empowered to obtain a
statement. Once the said statement is made it can also be construed as
confessional statement since there is no specific provision in the Act
to obtain the confessional statement from the accused. Therefore, such
a statement of the appellant was rightly relied upon resulting into
his conviction.
22. The learned Counsel for the state also countered the submission
of the appellant that the officer acting under Section 53 of the NDPS
Act i.e. the investigating officer had to be necessarily different
from the officer who is acting under Section 42 of the NDPS Act. He
submitted that Sections 42, 53 and 67 of NDPS Act do not bar the
officer authorized under the act to conduct, search, seizure,
investigate and enquire into the matter. His submission was that the
depositions of PW.2 – Murugan, Intelligence Officer, PW.6 – Gunabalan,
Superintendent and PW.10 – Senthil Murugan, Intelligence Officer
establish that they are empowered to act under Section 42, 53 and 67
of the NDPS Act.
23. The learned Counsel also highlighted incriminating facts as per
the records viz. the raid team was led by PW.6 - Gunabalan,
Superintendent along with the PW.10 A. Senthil Murugan, Intelligence
Officer and one Aruldoss, Intelligence officer. Also two other
officials conducted the raid and made a search and seizure of the
heroin on 24.10.2004 at 12.00 hrs. at GNT Road, 100 ft. road,
Madhavaram in Chennai where the vehicles come from Nellore, Andhra
Pradesh towards Chennai Junction. After the seizure, PW.2 – Murugan
enquired into the matter as per the direction of the superintendent.
He also obtained the voluntary statement under Section 67 of the NDPS
Act. The accused also gave another statement for supply of heroin to
Guddu Singh. The confessional statement of Badrilal Sharma, who
travelled alongwith accused/ appellant was also recorded. The
confessional statement of absconded accused viz. Babulal Jain is also
on the original record. In addition to that, the Identity Card of
Badrilal Sharma and the train tickets of the appellant and Badrilal
Sharma, as both of them travelled together, have come on record. All
this proves that the appellant was in possession of the heroin 5.250
Kgs. and carried it from Rajasthan to Chennai with intention to
smuggle the same to Srilanka, when he was caught. He thus pleaded that
conviction and sentence of the appellant was rightly recorded by the
courts below, which warranted no interdicting by this court.
24. From the arguments noted above, it would be clear that the
appellant has challenged the conviction primarily on the following
grounds:-
(i) The conviction is based solely on the purported
confessional statement recorded under Section 67 of the NDPS Act
which has no evidentiary value in as much as:
(a) 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 Indian Evidence Act.
(b) 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 Cr.PC.
(c) 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.
(ii) There was absence of fair investigation and non-compliance
of the provisions of Section 52(3) of the NDPS Act. This
submission is primarily based on the argument that same person
cannot be an officer under Section 42 of the NDPS Act as well as
investigating officer under Section 52 of the said Act.
(iii) Non-compliance of Section 57 of the NDPS Act is also
alleged because of the reason that P.W.7 who was the senior most
officer among the raiding team has submitted the report under
Section 57 of the NDPS Act with regard to arrest of the
appellant to P.W.6j. Instead P.W.6 should have submitted the
report of such arrest to P.W.7.
25. We shall take up these arguments in seriatim for our discussion:
Evidentiary value of statement u/s 67 of the NDPS Act.
Before examining this contention of the appellant, it
would be apposite to take note of the provisions of Sections 42, 53
and 67 of the NDPS Act.
These provisions read as under:-
42. Power of entry, search, seizure and arrest without warrant
or authorization.
(1) Any such officer (being an officer superior in rank
to a peon, sepoy or constable) of the departments of
central excise, narcotics, customs, revenue intelligence or
any other department of the Central Government including
para-military forces or armed forces as is empowered in
this behalf by general or special order by the Central
Government, or any such officer (being an officer superior
in rank to a peon, sepoy or constable) of the revenue,
drugs, control, excise, police or any other department of a
State Government as is empowered in this behalf by general
or special order of the State Government, if he has reason
to believe from persons knowledge or information given by
any person and taken down in writing that any narcotic
drug, or psychotropic substance, or controlled substance in
respect of which an offence punishable under this Act has
been committed or any document or other article which may
furnish evidence fo 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 enclosed place,
may between sunrise and sunset-
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials
used in the manufacture thereof and any other
article and any animal or conveyance which he
reason to believe to be liable to confiscation
under this Act and any document or other
article which he has reason to believe may
furnish evidence of the commission of any
offence punishable under this Act or furnish
evidence of holding any illegally acquired
property which is liable for seizure or
freezing or forfeiture under Chapter VA of this
Act; and
(d) detain and search, and, if he thinks proper,
arrest any person whom he has reason to believe
to have committed any offence punishable under
this Act.
Provided that if such officer has reason to believe that a
search warrant or authorization cannot be obtained without
affording opportunity for the concealment of evidence or
facility for the escape of an offender, he may enter and search
such building, conveyance or enclosed place at any time between
sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in
writing under sub-section (1) or records grounds for his
belief under the proviso thereto, he shall within seventy-
two hours send a copy thereof to his immediate official
superior.
“53. Power to invest officers of certain departments with
powers of an officer-in-charge of a police station:-
(1) The Central Government, after consultation with the
State Government, may, by notification published in
the Official Gazette, invest any officer of the
Department of Central Excise, narcotics, Customs,
Revenue Intelligence or the Border Security Force or
any class of such officers with the powers of an
officer-in-charge of Police Station for the
investigation of the offences under this Act.
(2) The State Government may, by notification published
in the official gazette, invest any officer of the
Department of Drugs Control, Revenue or Excise or any
class of such officers with the powers of an officer-
in-charge of a police station for the investigation
of offences under this Act.”
“67. Power to call for information etc.
Any officer referred to in Section 42 who is authorized in
this behalf by the Central Government or a State Government
may, during the course of any enquiry in connection with
the contravention of any provision of this Act:-
(a) Call for information from any person for the purpose
of satisfying himself whether there has been any
contravention of the provision of this Act or any
rule or order made thereunder:
(b) Require any person to produce or deliver any document
or thing useful or relevant to the enquiry
(c) Examine any person acquainted with the facts and
circumstances of the case.”
26. We have already taken note of the contentions of Counsel for the
parties on the interpretation of the aforesaid provisions.
To
recapitulate in brief, the submission of Mr. Jain is that there is no
power in the Section67 of the NDPS Act to either record confessions
or substantive evidence which can form basis for conviction of the
accused.
It is also argued that, in any case, such a statement is not
admissible in evidence as the excise official recording the statement
is to be treated as “police officer” and thus, the evidential value of
the statement recorded before him is hit by the provisions of Section
25 of the Indian Evidence Act.
27. The learned Counsel for the respondent had pointed out that in
the case of Kanhaiyalal vs. Union of India; 2008(4) SCC 668, it has
been categorically held that the officer under Section 63 is not a
police officer. In arriving at that conclusion the two judge Bench
judgment had followed earlier judgment in the case of Raj Kumar Karwal
Vs. Union of India; 1990(2) SCC 409.
28. Had the matter rested at that, the aforesaid dicta laid down by
two judge Bench would have been followed by us.
However, on the
reading of the aforesaid judgment, we find that the only reason to
conclude that an officer under Section 53 of the NDPS Act was not a
police officer was based on the following observations:
These provisions found in Chapter V of the Act show that
there is nothing in the Act to indicate that all the powers
under Chapter XII of the Code, including the power to file a
report under Section 173 of the Code have been expressly
conferred on officers who are invested with the powers of an
officer-in-charge of a police station under Section 53, for the
purpose of investigation of offences under the Act.
29. We find, prima facie, in the arguments of Mr. Jain to be
meritorious when he points out that the aforesaid observations are
without any detailed discussion or the reasons to support the
conclusion arrived at. Mr. Jain’s fervent plea to depart from the view
taken in the said judgment deserved consideration as there is no
provision under the NDPS Act which takes away the power of filing a
report under Section 173 of the Code which is available with an
officer-in-charge of a police station.
He further argued that the
provision of Section 173 are contained in Chapter XII of the Code and
since all powers of an officer in-charge of a police station has been
conferred, there is no legal basis to suggest that the said power is
not available with the officer under Section 53 of the Act.
Above all,
we find that the judgment in Raj Kumar Karwal (supra) was considered
by this court in few cases but without giving imprimatur, as can be
seen below:
30. Abdul Rashid v. State of Bihar; (2001) 9 SCC 578, this Court
after noticing the judgment in Raj Kumar Karwal (supra), chose to
apply the Constitution Bench judgment in the case of Raja Ram Jaiswal
reported as (1964) 2 SCR 752 and observed thus:-
“ Mr. B.B. Singh also brought to our notice a judgment of
this Court in the case of Raj Kumar Karwal v. Union of India in
support of the contention that even a superintendent of excise
under the Bihar and Orissa Excise Act is not a police officer
and as such a confessional statement made to him would be
admissible in evidence. In the aforesaid case, the question for
consideration is whether the officers of the Department of
Revenue Intelligence (DRI) invested with powers of officer in-
charge of a police station under Section 53 are police officers
or not within the meaning of Section 25, and this Court answered
that those officers are not police officers. This decision is in
pari material with the Constitution Bench decision in 1966 and
does not in any way detract from the conclusion of this Court in
Raja Ram which we have already noticed.
In Pon Adithan v. Dy.
Director, Narcotics Control Bureau this question had not
directly been in issue and the only question that was raised is
whether the statement made was under threat and pressure.
It is
obvious that a statement of confession made under threat and
pressure would come within the ambit of Section 24 of the
Evidence Act.
This decision therefore would not be direct
authority on the point in issue.
In the aforesaid premises, the
decision of Raja Ram would apply to the alleged confessional
statement made by the appellant to the superintendent of excise
and therefore would be inadmissible in evidence.”
31. Both the said judgments i.e. Raj Kumar Karwal (supra) as well as
Kanhiyalal (supra) were thereafter considered by this court in Noor
Aga vs. State of Punjab (2008) 9 SCALE 681
where the court, has after
considering the entire scheme of the Customs Act, has held that the
officer under Section 53 of the customs Act is a police officer and
would, therefore, attract the provisions of Section 25 of the Evidence
Act. It observed:
“104. Section 53 of the Act, empowers the Customs Officer with
the powers of the Station House Officers. An officer invested
with the power of a police officer by reason of a special status
in terms of sub-section (2) of section 53 would, thus, be deemed
to be police officers and for the said purposes of Section 25 of
the Act shall be applicable.”
32. No doubt, Abdul Rashid & Noor Aga were the cases under the
Customs Act.
But the reasons for holding custom officer as police
officer would have significant bearing even when we consider the issue
in the context of NDPS Act as well.
It would be more so when the
schemes & purport of the two enactments are kept in mind.
NDPS Act is
purely penal in nature.
In contradistinction, as far as the Customs
Act and the Central Excise Act are concerned, their dominant object is
to protect revenue of the State and penal provisions to punish the
person found offending those laws are secondary in nature.
33. Further, the NDPS Act is a complete code relating to Narcotic
Substances, and dealing with the offences and the procedure to be
followed for the detection of the offences as well as for the
prosecution and the punishment of the accused.
The provisions are
penal provisions which can, in certain cases, deprive a person of his
liberty for a minimum period of 10 years and can also result in
sentences which can extend upto 20 years or even death sentence under
certain circumstances.
The provisions therefore have to be strictly
construed and the safeguards provided therein have to be scrupulously
and honestly followed. [See Baldev Singh (1997) 1 SCC 416 Para 28;
Union of India vs. Bal Mukund (2009) 12 SCC 161 Para 26, 27 & 28;
Balbir Singh vs. State of Haryana (1987) 1 SCC 533].
34. We have also to keep in mind the crucial test to determine
whether an officer is a police officer for the purpose of Section 25 of the Evidence Act viz. the “influence or authority” that an officer is capable of exercising over a person from whom a confession is obtained.
The term “police officer” has not been defined under the
Code or in the Evidence Act and, therefore, the meaning ought to
assessed not by equating the powers of the officer sought to be
equated with a police officer but from the power he possesses from the
perception of the common public to assess his capacity to influence,
pressure or coercion on persons who are searched, detained or
arrested.
The influence exercised has to be, assessed from the
consequences that a person is likely to suffer in view of the
provisions of the Act under which he is being booked. It, therefore,
follows that a police officer is one who:-
(i) is considered to be a police officer in “common parlance”
keeping into focus the consequences provided under the Act.
(ii) is capable of exercising influence or authority over a
person from whom a confession is obtained.
35. We would also like to point out that Mr. Sushil Kumar Jain had
referred to the provisions of the Police Act as well to support his
submission.
The preamble of the Police Act, 1861 (Act 5 of 1861),
which is an Act for the regulation of a group of officers who come
within the meaning of the word “police” provides”
“Whereas it is expedient to re-organize the police and to make
it a more efficient instrument for the prevention and detection
of crime, it is enacted as follows.”
He argued that from the above, it can be seen that the
primary object of any police establishment is prevention and detection
of crime which may be provided for under the Indian Penal Code or any
other specific law enacted for dealing with particular offences and
bring the guilty to justice. It was submitted by him that if special
authorities are created under special enactments for the same purpose
i.e. prevention and detection of crime, such authorities would be
“Police and have to be understood in the said perspective. Sections 23
and 25 of the said Act lay down the duties of the police officers and
Section 20 deals with the authority and provides that they can
exercise such authority as provided under the Police Act and any Act
for regulating criminal procedure. Section 5(2) of the Criminal
Procedure Code provides that “all offences under any other law shall
be investigated, inquired into, tried and otherwise dealt with
according to the same provisions, but subject to any enactment for the
time being in force regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such offences.
36. On the strength of these provisions, the argument of the learned
Counsel for the petitioner was that persons categorized as “police
officers” can do all the activities and the statute gives them the
power to enable them to discharge their duties efficiently. Of the
various duties mentioned in Section 23, the more important duties are
to prevent the commission of offences and public nuisances and to
detect and bring offenders to justice and to apprehend all persons
whom the police officer is legally authorized to apprehend. It is
clear, therefore, in view of the nature of the duties imposed on the
police officer, the nature of the authority conferred and also the
purpose of the Police Act, that the powers which the police officers
enjoy are powers for the effective prevention and detection of crime
in order to maintain law and order. According to the learned Counsel,
a comparison to the powers of the officers under the provisions of the
NDPS Act makes it clear that the duties and responsibilities of the
officers empowered under the Act are comparable to those of the police
officers and, therefore, they ought to be construed as such. It is
submitted that the primary objective of a NDPS Officer is to detect
and prevent crime defined under the provisions of the act and
thereafter the procedure has been prescribed to bring the offenders to
justice. Thus, the officers under the Act are “Police Officers” and
statements made to such officers are inadmissible in evidence.
37. He also drew our attention to the following pertinent
observation of this Court in the case of State of Punjab v. Barkat
Ram; (1962) 3 SCR 338.
“Section 5(2) of the Code of Criminal Procedure also
contemplates investigation of, or inquiry into, offences under
other enactments regulating the manner or place of
investigation, that is, if an act creates an offence and
regulates the manner and place of investigation or inquiry in
regard to the said offence, the procedure prescribed by the Code
of Criminal Procedure will give place to that provided in that
Act. If the said Act entrusts investigation to an officer other
than one designated as police officer, he will have to make the
investigation and not the police officer. In this situation, the
mere use of the words "police officer" in section 25of the
Evidence Act does not solve the problem, having regard to
permissible rules of interpretation of the term "police officer"
in that section. It may mean any one of the following categories
of officers : (i) a police officer who is a member of the police
force constituted under the Police Act; (ii) though not a member
of the police force constituted under the Police Act, an officer
who by statutory fiction is deemed to be a police officer in
charge of a police station under the Code of Criminal Procedure;
and (iii) an officer on whom a statute confers powers and
imposes duties of a police officer under the Code of Criminal
Procedure, without describing him as a police officer or
equating him by fiction to such an officer. Now, which meaning
is to be attributed to the term "police officer" in a
section 25 of the Evidence Act ? In the absence of a definition
in the Evidence Act it is permissible to travel beyond the four
corners of the statute to ascertain the legislative intention.
What was the meaning which the legislature intended it give to
the term "police officer" at the time the said section was
enacted ?
That section was taken out of the Criminal Procedure
Code, 1861 (Act 25 of 1861) and inserted in the Evidence Act of
1872 as section 25.
Stephen in his Introduction to the Evidence
Act states at p. 171 thus :
"I may observe, upon the provisions relating to them, that
sections 25, 26 and 27 were transferred to the Evidence Act
verbatim from the Code of Criminal Procedure, Act XXV of 1861.
They differ widely from the law of England, and were inserted in
the Act of 1861 in order to prevent the practice of torture by
the police for the purpose of extracting confessions from
persons in their custody. "
So too, Mahmood, J., in Queen Empress v. Babulal I.L.R(1884) . 6 All.
509), gave the following reasons for the enactment of section 25 of
the Evidence Act at p. 523.
"........... the legislature had in view the malpractices of
police officers in extorting confessions from accused persons in
order to gain credit by securing convictions, and that those
malpractices went to the length of positive torture; nor do I
doubt that the Legislature, in laying down such stringent rules,
regarded the evidence of police officers as untrustworthy, and
the object of the rules was to put a stop to the extortion of
confessions, by taking away from the police officers as the
advantage of proving such exported confessions during the trial
of accused persons. "
It is, therefore, clear that section 25 of the Evidence Act was
enacted to subserve a high purpose and that his to prevent the
police from obtaining confessions by force, torture or
inducement. The salutary principle underlying the section would
apply equally to other officers, by whatever designation they
may be known, who have the power and duty to detect and
investigate into crimes and is for that purpose in a position to
extract confessions from the accused.
“..Shortly stated, the main duties of the police are the
prevention and detection of crimes. A police officer appointed
under the Police Act of 1861 has such powers and duties under
the Code of Criminal Procedure, but they are not confined only
to such police officers. As the State's power and duties
increased manifold, acts which were at one time considered to be
innocuous and even praiseworthy have become offences, and the
police power of the State gradually began to operate on
different subjects.
Various Acts dealing with Customs, Excise,
Prohibition, Forest, Taxes etc., came to be passed, and the
prevention, detection and investigation of offences created by
those Acts came to be entrusted to officers with nomenclatures
appropriate to the subject with reference to which they
functioned.
It is not the garb under which they function that
matters, but the nature of the power they exercise or the
character of the function they perform is decisive.
The
question, therefore, in each case is, does the officer under a
particular Act exercise the powers and discharge the duties of
prevention and detection of crime? If he does, he will be a
police officer.”
38. In our view the aforesaid discussion necessitates a re-look
into the ratio of Kanhiyalal Case. It is more so when this Court has
already doubted the dicta in Kanhaiyalal (supra) in the case of
Nirmal Singh Pehalwan (2011) 12 SCC 298 wherein after noticing both
Kanhiyalal as well as Noor Aga, this Court observed thus:
“15. We also see that the Division Bench in Kanhaiyalal case;
2008 (4) SCC 668; (2008) 2 SCC (Crl.) 474, had not examined the
principles and the concepts underlying Section 25 of the
Evidence Act vis.-a-vis. Section 108 of the Customs Act the
powers of Custom Officer who could investigate and bring for
trial an accused in a narcotic matter. The said case relied
exclusively on the judgment in Raj Kumar's case (Supra).
The
latest judgment in point of time is Noor Aga's case which has
dealt very elaborately with this matter.
We thus feel it would
be proper for us to follow the ratio of the judgment in Noor
Aga's case particularly as the provisions of Section 50 of the
Act which are mandatory have also not been complied with.”
39. For the aforesaid reasons, we are of the view that the matter
needs to be referred to a larger Bench for re-consideration of the
issue as to whether the officer investigating the matter under NDPS
Act would qualify as police officer or not.
40. In this context, the other related issue viz. whether the
statement recorded by the investigating officer under Section 67 of
the Act can be treated as confessional statement or not, even if the
officer is not treated as police officer also needs to be referred to
the larger Bench, inasmuch as it is intermixed with a facet of the
1st issue as to whether such a statement is to be treated as
statement under Section 161 of the Code or it partakes the character
of statement under Section 164 of the Code.
41. As far as this second related issue is concerned we would also
like to point out that Mr. Jain argued that 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 number of judgments and there is a
qualitative difference between the two sets of provisions.
In so far
as Section 108 of the Customs Act is concerned, it gives power to the
custom 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 Andhra Pradesh High Court in the Case of Shahid Khan
vs. Director of Revenue Intelligence; 2001 (Criminal Law Journal)
3183.
42. The Registry is accordingly directed to place the matter before Hon’ble the Chief Justice for the decision of this appeal by a larger Bench after considering the issues specifically referred as above.
43. We find from the record that as against the sentence of 10
years awarded to the appellant he has already undergone more than 9
years of sentence.
In these circumstances, we deem it a fit case to
suspend further sentence till the disposal of this appeal by the
larger Bench.
The appellant shall be released on bail on furnishing
security in the sum of Rs.50,000/- (Rupees Fifty Thousand) with two
sureties of the same amount, to the satisfaction of the trial court.
…………………………….J.
[A.K. PATNAIK]
…………………………….J.
[A.K. SIKRI]
New Delhi,
October 8, 2013
