A Confessional Statement Made Before An Official Appointed Under Section 42 Or Section 53 Of The NDPS Act Used To Convict A Person Would Be A Direct Infringement Of Articles 14, 20(3) And 21 Of The Constitution Of India: Supreme Court

CAUSE TITLE:
Tofan Singh Vs The State Of Tamil Nadu

DATE OF JUDGEMENT:
29 October 2020

JUDGE(S):
The Honourable Mr. Justice R.F. Nariman
The Honourable Mr. Justice Navin Sinha
The Honourable Mrs. Justice Indira Banerjee
PARTIES:
Appellant(s): Tofan Singh
Respondent(s): The State Of Tamil Nadu

SUBJECT

The Appeals and Special Leave Petitions came as a result of a Supreme Court Division Bench's referral ruling in Toofan Singh v. State of Tamil Nadu [(2013) 16 SCC 31].

IMPORTANT PROVISIONS

The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter as The NDPS Act)

Section 42: Entry, search, seizure, and arrest without a warrant or authority

Section 53: Authority to vest in officers of certain departments the powers of a police station officer-in-charge.

Section 67: Authority to request information, etc. Any officer referred to in section 42 who is authorised in this capacity by the Central Government or a State Government may conduct an investigation into any violation of any provision of this Act.

OVERVIEW

• The NCB intelligence officer received a report about the procurement of narcotics. Following receipt of the report, the intelligence officer proceeded to the scene of the crime and intercepted the car.
• It was discovered that there were six passengers in total, two drivers, and the appellant in the front seat. Following a police investigation, persons seated in the back handed over a green bag carrying 5 kg of heroin. The drivers were permitted to leave, while the remainder were arrested for violating the NDPS Act.
• The apprehended accused person's words were recorded by the intelligence officer, and the appellant confessed to the crime.
• The appellant was acquitted by the Trial Court on charges under Section 28 of the NDPS Act. However, after convicting the accused persons under Sections 8(c) and 29 of the NDPS Act, the court sentenced them to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh, as well as another year of rigorous imprisonment for the appellant; both terms were to be served consecutively.
• Dissatisfied, the appellant filed an appeal in the Madras High Court, which was dismissed.
• As a result, the appellant filed an appeal with the Supreme Court against the High Court's decision. The two-judge bench of 2013, provided bail to the Appellant as he had already undergone 9 years out of the 10 years of imprisonment.
• The appeal was directed to a larger bench.

ISSUE

Whether statements recorded under Section 67 of the NDPS Act, regardless of whether the officer was a police officer, can be classified as confessional statements?

ARGUMENTS ADVANCED BY THE APPELLANT

• The Appellant had contested his conviction on the grounds that it was primarily based on a putative confessional statement recorded under Section 67 of the NDPS Act, which had no evidentiary value due to the following reasons:-

1. Section 25 of the Evidence Act was applicable because the statement was delivered to and recorded by an officer who is to be treated as a "police officer."
2. Under Section 67 of the NDPS Act, such a confessional declaration could not be recorded. The law gave the authority to request information but not to record such confessional statements. As a result, the statement recorded under this clause was analogous to the statement recorded under Section 161 CrPC.
3. In any case, because the retracted statement could not have served as the foundation for a conviction, it could only have been used to support other evidence.

ARGUMENTS ADVANCED BY THE RESPONDENT

• The appellant provided a voluntary statement in which he admitted to his involvement in the offence. He acknowledged to transporting 5.25 KG of heroin with other co-accused in RPF uniform to Nelore, Andhra Pradesh. They were then picked up by the car and driven to Chennai. However, they were apprehended by officials on the way.
• Section 42, 53, and 67 of the NDPS Act do not preclude the officer authorised by the act from conducting, searching, seizing, investigating, and enquiring into the case.
• Badrilal Sharma's confessional testimony, who travelled with the accused/appellant, was also recorded. The appellant's ID card and Badrilal Sharma's railway tickets, as both of them travelled together, were entered into evidence. All of the information demonstrated that the appellant was in possession of heroin and was transporting it in order to smuggle it.

JUDGEMENT ANALYSIS

• The Supreme Court ruled in State of Punjab vs Barkat Ram [1962 AIR 276] that a Customs Official under the Land Customs Act of 1924 was not a "police officer" within the meaning of section 25 of the Evidence Act.
• A Division Bench of the Supreme Court held in State of U.P. v. Durga Prasad [(1975) 3 SCC 210] that an officer conducting an inquiry under Section 8(1) of the Railways Property (Unlawful Possession) Act, 1966 does not possess all of the attributes of an officer-in-charge of a police station investigating a case. When officers are given limited investigative powers for a purpose other than the prevention and detection of crime, they are not considered police officers under Section 25 of the Evidence Act.
• The meaning of Section 53(1) is explicit; thus, the designated officer under Section 53, who has the powers of a police station officer, is to forward a police report. The officer designated by the Central Government or State Government under Section 53 to investigate NDPS Act offences does not have to be the same officer authorised by the Central Government or State Government to file a complaint with the Special Court.
• Section 25 of the Evidence Act does not apply to the NDPS Act. Confessional statements made before police officers under the provisions of the NDPS Act have evidentiary value, where Section 53A states that, in the circumstances mentioned, statements made by a person before any officer empowered under Section 53 shall only be "relevant" for the purpose of proving the truth of any facts contained in the said statement. As a result, remarks made before the officer under Section 53, even if "relevant" under Section 53A, cannot be utilised to convict an accused without corroborating evidence.

CONCLUSION

• Thus, concluding that a confessional statement made before an officer designated under Section 42 or Section 53 can be used to convict a person under the NDPS Act without any non obstante clause repealing Section 25 of the Evidence Act and without any safeguards would be a direct violation of the constitutional guarantees contained in Articles 14, 20(3), and 21 of the Indian Constitution.
• A statement recorded under Section 67 of the NDPS Act may not be utilised as a confessional statement in the prosecution of an offence under the NDPS Act..

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