The officer investigating the matter under the NDPS Act would qualify as police officer and statement recorded by him would be hit by S. 25 of Evidence Act: SC

Tofan Singh v. State of Tamil Nadu

CRIMINAL APPEAL NO.152 OF 2013 decided on 29.10.2020

Bench: R. F. Nariman, Navin Sinha, Indira Banerjee(dissenting), JJ.

Facts: These Appeals and Special Leave Petitions arise by virtue of a reference order of a Division Bench of this Court reported as Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31.

Question of Law referred by Division Bench

1. Whether the officer investigating the matter under the NDPS Act would qualify as police officer or not?

2. Whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as confessional statement or not?

Issue 1: Whether the officer investigating the matter under the NDPS Act would qualify as police officer or not?

Held(Per Majority): The court held that the officers who are invested with powers under NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

View of Supreme Court on Police Officer

The Court said that a “police officer” does not have to be a police officer in the narrow sense of being a person who is a police officer so designated attached to a police station. The Supreme Court cited a series of judgments and said that a broad view has been accepted, and never dissented from, which is where a person who is not a police officer properly is invested with all powers of investigation, which culminates in the filing of a police report, such officers can be said to be police officers within the meaning of section 25 of the Evidence Act, as when they prevent and detect crime, they are in a position to extort confessions, and thus are able to achieve their object through a shortcut method of extracting involuntary confessions.

Per minority

The powers of NDPS officers being restricted to prevention and detection of crimes under the NDPS Act and no other crime, they do not have the kind of scope that the police have, to exert pressure to extract tailored statements.” Officers under the NDPS Act, invested under Section 53 with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act, do not exercise all the powers of police officers. They do not have the power to file a police report under Section 173 Cr.P.C which might be deemed a complaint. There is no provision in the NDPS Act which requires any officer investigating an offence under the said Act or otherwise making an inquiry under the said Act to file a report. Officers under the NDPS Act not being police officers, Sections 161/162 of the Cr.P.C have no application to any statement made before any officer under the NDPS Act, in the course of any inquiry or other proceedings under the NDPS Act.

 

Issue: Whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as confessional statement or not?

Held: The Court held that a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. The Supreme Court highlighting an anomaly said it would be remarkable that if a police officer, properly so-called, were to “investigate” an offence under the NDPS Act, all the safeguards contained in sections 161 to 164 of the CrPC would be available to the accused, but that if the same police officer or other designated officer under section 42 were to record confessional statements under section 67 of the NDPS Act, these safeguards would be thrown to the winds. Since this cannot be the intention of the legislature therefore the statement recorded by the investigating officer under Section 67 of the Act cannot be treated as confessional statement

View of Supreme Court on S.67

“Enquiry” in section 67 is not same as “investigation”

Section 67 is at an antecedent stage to the “investigation”, which occurs after the concerned officer under section 42 has “reason to believe”, upon information gathered in an enquiry made in that behalf, that an offence has been committed.

“Examination” under Section 67 cannot be equated to “statement” under Section 161 CrPC

Under section 67(c) of the NDPS Act, the expression used is “examine” any person acquainted with the facts and circumstances of the case. The “examination” of such person is again only for the purpose of gathering information so as to satisfy himself that there is “reason to believe” that an offence has been committed. This can, by no stretch of imagination, be equated to a “statement” under section 161 of the CrPC.

Availability of safeguards under Sections 161 to 164 of the CrPC to the accused

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

 

Per minority

A statement recorded under Section 67 of the NDPS Act can be used against an accused offender in the trial of an offence under the NDPS Act.

 

[See S. 67 of NDPS Act:

67. Power to call for information, etc. Any officer referred to in section 42 who is authorised 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 provisions of this Act,

(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;

(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.]