NDPS Act: Are Confessional Statements Given Under Section 67 Admissible

Key Takeaways

• statement of an accused recorded under section 67 of the ND

Background

• Aryan Khan and his friend were apprehended together by the Narcotics Control Bureau (NCB) at the International Cruise Terminal, with the friend allegedly in possession of 6 grams of charas concealed in his shoes.
• The bail application was primarily rejected because of two reasons:

1. First, the NCB officials recorded voluntary statements under Section 67 of the NDPS Act, which disclosed Aryan Khan and his friend admitting that they were in possession of the said substance for their consumption and enjoyment. This led the court to hold that Aryan Khan was in ‘conscious possession’ of the said substance or, in other words, had knowledge of the said substance.
2. Second, the WhatsApp chats of Aryan Khan revealed that he contacted several foreign nationals and unknown persons who are suspected to be part of an “international drug racket”.

• In both these cited reasons, it appears that the court did not follow precedent and established principles of law.

Observation

• Countering the first reason, the court relied upon the statements of Aryan Khan made to the NCB officials
• In relying upon these statements, the court did not take into account the principle established in the case of Tofan Singh vs State of Tamil Nadu (2013), wherein it was held that the NCB officials are “police officers” and thus, any confessional statement made to them would be inadmissible in court by virtue of section 25 of the Evidence Act.
• Thus, the court could not rely upon the confessional statements of Aryan Khan made to the NCB officials.
• The court relied upon the WhatsApp Chats of Aryan Khan with the other persons to hold that he “conspired” with other illegal traffickers, including others accused of committing the offences prescribed under the NDPS Act.
• The copies of WhatsApp chats are electronic evidence and thus, are categorised as secondary evidence. Section 65B of the Indian Evidence Act engrafts the procedure regarding the admissibility of electronic records.
• It mandates that a certificate must be submitted along with copies. The purpose of this procedure is to sanctify secondary evidence in electronic form, generated by a computer.

Questions:

• Do you think statements made to the NCB officials are admissible?
• Are whatsapp chats submitted without certificate admissible?