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DELHI HIGH COURT
R.N. Pyne, C.J. and G.C. Jain. J.
Kirpal Mohan Virmani - Petitioner
versus
B.D. Mishra, Intelligence Officer – Respondent
Cr. Misc. (M) 1451 of 1987 alongwith Crl. Rev.
170/87 & Crl. Misc. (M) 1258/87
All Decided on 7-12-1988
Counsels for the parites:
Mr. Kapil Sibal, Mr. Arora and Monimata Sarkar, Advocates - For the Petitioner.
Mr. J.S. Arora with Mr. Arun Aggarwal, Advocates - For the Respondent.
IMPORTANT POINT
Officers of the Department of Revenue Intelligence invested with powers under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, do not possess all the attributes of an officer in-charge of a Police Station conducting an investigation under Chapter XII of the Code of Criminal Procedure. A confession or incriminating statement made before them is not hit by the provisions contained in Section 25 of the Evidence Act.
8/87, Ajit Singh v. State raising inter alia, this question have a1so been sent to the Bench
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1988 -- Section 53 - Evidence Act, 1872 - Section 25 - Powers of the officers invested with powers under Section 53 Officers empowered under Section 53 have been given powers of an officer-in-charge of the Police Station for investigation of the offences However, there is nothing in the Act indicating that these officers can exercise all the powers under Chapter XII of the Code of Criminal Procedure - No provision in the Act providing that an officer invested with powers under Section 53 would be deemed to be an officer-in charge of the police station or the purpose of Section 156 of the Code Officers of the Department of Revenue Intelligence invested with powers under Section 53 cannot be held as police officers within the meaning of the term used in Section 25 of the Evidence Act Incriminating statement of an accused person recorded by them not hit by Section 25 of the Act. (Para 19)
Result: Reference answered accordingly.
JUDGMENT
G.C. Jain, J. - Whether the Officers of the Department of Revenue Intelligence (D.R.I. for short) invested with powers. under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1988 ('NDPS Act' for short), were police officers within the meaning and scope of Section 25 of the Indian Evidence Act and whether the incriminating statement of an accused person recorded by them is inadmissible in evidence as envisaged by Section 25 of the Evidence Act, is the question which has been referred to a larger Bench for determination by a learned Single Judge of this Court. In view of this reference, Criminal Revision 170/87, Raj Kumar Karwal v. Union of India & ors and Criminal M. (M) 125.
2. The facts leading to the main reference, as gathered from the petition filed by the petitioner, may be briefly stated. On July 12, 1986, a truck bearing registration No. DEL 3124 was intercepted near Calcutta by the officers of the DRI. On its search, hashish weighing about 743 Kgs. concealed in machines loaded in the said truck was recovered. This machinery, it is alleged, was intended to be exported to Saudi Arabia and UK on behalf of M/s. Northern Exports (Importers, Exporters and Commission Agents), 116, Hari Nagar Ashram, New Delhi and Modern Machinery and Instruments, G-2, Vishal Marg, Permanand Colony, New Delhi. The said hashish was seized and the two drivers of the truck, namely, Joginder Singh and Shiv Raj Singh were apprehended by the officers of DRI.
3. On the disclosures made by the persons arrested at Calcutta, officers of the DRI searched the farm house at Khasra No. 417, Gadaipur Village, Mehrauli, New Delhi on 13th 14th and 15th July, 1986 and hashish weighing 976 Kgs. was recovered from a machinery lying ill the said farm house and hashish weighing about 365 Kgs. was recovered from the gunny bags berried underground in one of the out-houses of the said farm house. This hashish, it is alleged was meant to be exported through Mis. Lee Muirhead (I) Ltd. of Calcutta and M/s. Sheikh and Pandit, Calcutta Mr. Tushar Pandit, proprietor of Mis. Sheikh and Pandit and Mohan Lal Pandit, partner of M/s. Lee Muirhead were arrested. Besides the said persons, one Subhash Narang was also arrested on 29th September, 1986. He made a confessional statement and is alleged to have implicated the petitioner Kirpal Mohan Virmani.
The petitioner Kirpal Mohan Virmani was arrested on 28th September, 1986. He, it is stated, also made a confessional statement before the officers of DRI implicating himself
4 After completing the investigation, a complaint was filed against the petitioner for offences under Section 21, 23, 29 and 30 of the NDPS Act and Section 135 A of the Customs Act,1962. The petitioner has since been committed the Court of Sessions for trial.
5. The petitioner moved an. application in this Court under Section 439 of the Code of Criminal Procedure for releasing him on bail during the pendency of his trial for the said offences. Before the learned single Judge, who heard the bail petition, it was argued on. behalf of the petitioner that the evidence against the petitioner consisted of the self incriminating statements of the petitioner and Subhash Narang recorded by the Officers of the DRI purportedly under Section 108 of the Customs Act. The officers of the D.R.I. had been invested with the powers of the officer-in-charge of a police station under Section 53 of the NDPS Act. They we~ police officers. The said confessional statements were, therefore inadmissible in evidence by reason of the provisions contained in Section 25 of the Evidence Act. Learned single Judge felt that this question of law was of far-reaching importance and of vital consequence. It was likely to arise in large number of cases. He, therefore, referred the above mentioned question to a larger Bench. This is how the said question has come before us for decision.
6. Section 25 of the Evidence Act, 1872 reads as under :-
“25. Confession to police of
