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SUPREME COURT OF INDIA
R.F. NARIMAN, NAVIN SINHA, INDIRA BANERJEE, JJ.
TOFAN SINGH – Appellant
Versus
STATE OF TAMIL NADU – Respondent
Criminal Appeal No.152 of 2013; Criminal Appeal No. 1750 of 2009; Criminal Appeal No. 2214 of 2009; Criminal Appeal No. 827 of 2010; Criminal Appeal No. 835 of 2011; Criminal Appeal No. 836 of 2011; Criminal Appeal No. 344 of 2013; Criminal Appeal No. 1826 of 2013; Criminal Appeal No. 433 of 2014; Special Leave Petition (Crl.) No. 6338 of 2015; Criminal Appeal No. 77 of 2015; Criminal Appeal No. 90 of 2017; Criminal Appeal No. 91 of 2017; Special Leave Petition (Crl.) No. 1202 of 2017
Decided on : 29-10-2020
Per R. F. Nariman and Navin Sinha, JJ.)(Majority View)
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 67 read with Section 42 – Confessional statement – Evidentiary value – It is only an officer referred to in Section 42 who may use powers given under Section 67 in order to make an “enquiry” in connection with contravention of any provision of this Act – Powers to be exercised under Section 67 are to be exercised in conjunction with powers that are delineated in Section 42(1) – In Section 67(c) of NDPS Act, expression used is “examine” any person acquainted with facts and circumstances of case – “Examination” of such person is 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 cannot be equated to a “statement” under Section 161 of Cr.P.C. – Given stringent provisions of NDPS Act, together with safeguards mentioned in provisions, statutes like NDPS Act have to be construed bearing in mind fact that severer the punishment, the greater the care taken to see that safeguards provided in statute are scrupulously followed. (Paras 55, 60 and 65)
(B) Constitution of India – Article 20(3) – Indian Evidence Act, 1872 – Section 25 – Right against self-incrimination – No individual should be forcibly subjected to any of techniques in question, whether in context of investigation in criminal cases or otherwise – Doing so would amount to an unwarranted intrusion into personal liberty – Interpretation of term “accused” in Section 25 of Evidence Act is materially different from that contained in Article 20(3) of Constitution – Scope of the Section is not limited by time – It is immaterial that person was not an accused at the time when confessional statement was made – Whereas a formal accusation is necessary for invoking protection under Article 20(3), same would be irrelevant for invoking protection under Section 25 of Evidence Act. (Paras 16, 24, 31 and 33)
(C) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 36A(1)(d) and 53 – Indian Evidence Act, 1872 – Section 25 – Criminal Procedure Code, 1973 – Sections 2(d) and 190 – Police officer – Import – Expression “police officers” does not only mean a police officer who belongs to State police force, but includes officers who may belong to other departments, such as Department of Excise who are otherwise invested with all powers of investigation so as to attract provisions of Section 25 of Evidence Act – Designated officer under Section 53, invested with powers of an officer in charge of a police station, is to forward a police report stating particulars that are mentioned in Section 173(2) Cr.P.C. (Paras 134, 137 and 138)
(D) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 53 and 67 – Indian Evidence Act, 1872 – Section 25 – Confessional statement – Legal bar on admissibility in evdience – Statement recorded under Section 67 of NDPS Act cannot be used as a confessional statement in trial of an offence under NDPS Act – To arrive at conclusion that a confessional statement made before an officer designated under Section 42 or Section 53 can be the basis to convict a person under NDPS Act, without any non obstante clause doing away with Section 25 of Evidence Act and without any safeguards, would be a direct infringement of constitutional guarantees contained in Articles 14, 20(3) and 21 of Constitution of India – Officers who are invested with powers under Section 53 of NDPS Act are “police officers” within meaning of Section 25 of Evidence Act as a result of which any confessional statement made to them would be barred under provisions of Section 25 of Evidence Act and cannot be taken into account in order to convict accused under NDPS Act. (Paras 152 and 155)
Facts of the case:
Point in issue centres around as to whether the officer investigating the matter under the NDPS Act would qualify as police officer or not. Other related issue viz. whether 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.
Findings of Court:
To arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of constitutional guarantees contained in Articles 14, 20(3) and 21 of Constitution of India.
Result : Reference answered. Intervention Applications dismissed.
Key Points: - (!) (!) (!) (!) - (!) (!) - (!) (!) (!) - (!) (!) - (!) (!) (!) - (!) (!)
JUDGMENT
R.F. Nariman. J.
These Appeals and Special Leave Petitions arise by virtue of a reference order of a Division Bench of this Court reported as Tofan Singh vs. State of Tamil Nadu (2013) 16 SCC 31. The facts in that appeal have been set out in that judgment in some detail, and need not be repeated by us. After hearing arguments from both sides, the Court recorded that the Appellant in Criminal Appeal No.152 of 2013 had challenged his conviction primarily on three grounds, as follows:
"24.1. The conviction is based solely on the purported confessional statement recorded under Section 67 of the NDPS Act which has no evidentiary value inasmuch 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 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 CrPC.
(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."
2. Under the caption "Evidentiary value of statement under section 67 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 ("NDPS Act")", the Court noted the decisions of Raj Kumar Karwal vs. Union of India (1990) 2 SCC 409 and Kanhaiyalal vs. Union of India (2008) 4 SCC 668, as also certain other judgments, most notably Abdul Rashid vs. State of Bihar (2001) 9 SCC 578 and Noor Aga vs. State of Punjab (2008) 16 SCC 417, and thereafter came to the conclusion that the NDPS Act, being a penal statute, is in contradistinction to the Customs Act, 1962 and the Central Excise Act, 1944, whose dominant object is to protect the revenue of the State, and that therefore, judgments rendered in the context of those Acts may not be apposite when considering the NDPS Act - see paragraph 33. After then considering a number of other judgments, the referral order states that a re-look into the ratio of Raj Kumar Karwal (supra) and Kanhaiyalal (supra) would be necessary, and has referred the matter to a larger Bench thus:
"41. For the aforesaid reasons, we are of the view that the matter needs to be referred to a larger Bench for reconsideration of the issue as to whether the officer investigating the matter under the NDPS Act would qualify as police officer or not.
42. 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.
43. As far as this second related issue is concerned we would also like to point out that Mr Jain argued that the 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 a number of judgments and there is a qualitative difference between the two sets of provisions. Insofar 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 the Andhra Pradesh High Court in Shahid Khan vs. Director of Revenue Intelligence [2001 Cri LJ 3183 (AP)]."
3. Shri Sushil Kumar Jain, learned Senior Advocate appearing for the Appellants in Criminal Appeal Nos.
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