LAW OF CONFESSIONS UNDER THE NDPS ACT, 1985: A LEGAL CONFLICT

By Ms. A. SAJIDA MEERA RUMANA



1.INTRODUCTION

The Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) was enacted to consolidate and amend the law relating to narcotic drugs. The Act comprises stringent provisions for control and regulation of narcotic drugs and forfeiting properties derived from or used in illicit traffic in narcotic drugs and psychotropic substances. This blog discusses the legal position vis-à-vis evidentiary value of confessions given before officers authorised to investigate into offences under the Act, and whether such authorised officers would be deemed “police officers” for the purpose of Section 25 of the Indian Evidence Act, 1872 (“IEA”).


2.CONFESSION UNDER NDPS ACT, 1985

Section 53 of the NDPS Act empowers officers of the department of central excise, narcotics, customs, revenue intelligence and/or any other department of the Central Government including para-military forces or armed forces or any class of such officers, with the powers of an officer-in-charge of a police station, by notification in the Official Gazette, to investigate into offences under the Act.Confessions under the NDPS Act are recorded by virtue of Section 67 of the NDPS Act. Section 67 of the NDPS Act empowers an authorised officer to- (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, during the course of any enquiry in connection with the Act. Section 25 of the IEA dispenses with the evidentiary value of confessions made by an Accused before a Police Officer enumerating that confessions made to a Police Officer shall not be proved as against a person accused of any offence.


3.IS AUTHORISED OFFICERS UNDER SECTION 53 OF THE NDPS ACT SHALL DEEMED TO BE A POLICE OFFICERS FOR THE PURPOSE OF SECTION 25 OF THE INDIAN EVIDENCE ACT

In the year 2013, the Apex Court in Tofan Singh v. State of T.N.[i], while dealing with the subject issue, referred the matter to a larger bench in view of conflicting opinions on the point. In 2016, a three-judge-bench was deciding the subject issue pursuant to the reference, however, pending the decision, Justice K.H.Khehar retired. Thereafter, on July 18, 2018 a Division Bench of the Supreme Court presided by Justices R. Gogoi and R. Banumathi directed the Registry to bring it to the notice of the Chief Justice about the pendency of the decision on the issue. Nevertheless, the outlook of the larger bench on the issue is still pending as of today. Just prior to the reference, the subject issue was discussed in two-judgments delivered by the Apex Court in

a. Ram Singh v. Central Bureau of Narcotics[ii]

b. Nirmal Singh v. Inspector (Customs)[iii]

In Ram Singh v. Central Bureau of Narcotics[iv], the ratios previously rendered in Badku Joti Savant v. State of Mysore[v], Raj Kumar Karwal v. UOI[vi], and Kanahiyalal v. UOI[vii], were endorsed holding that an officer vested with the powers of an officer in charge of a police station u/s.53 of the NDPS Act would not be a “police officer” within the meaning of Section 25 of the IEA and a confession recorded before such officer was admissible in evidence. However, in Nirmal Singh v. Inspector (Customs)[viii], the ratio rendered by the co-ordinate bench in Noor Aga v. State of Punjab[ix],was endorsed and the conviction of accused u/s.22 of NDPS Act was set aside. In Noor Aga v. State of Punjab, the Apex Court, observing the subject issue to have been kept open by the three-judge-bench in State of Punjab v. Barkat Ram[x] held that officers invested with the power of police officers by reason of a special statute in terms of Section 53(2) of the NDPS Act would be deemed “police officers” and for the said purposes, Section 25 of the IEA would be applicable. In Badku Joti Savant v. State of Mysore[xi],a five-judge-bench of the Supreme Court, while dealing with the evidentiary value of a confession made before Deputy Superintendent of Customs & Excise, distinguished the powers, functions and duties of Police Officers and Customs Officers. The Court concurred with the ratio of Barkat Ramand laid down thata Central Excise Officer is not a police officer within the meaning of those words in S.25 of the Evidence Act. In Kanahiya Lal v. UOI[xii], a Division Bench of the Supreme Court reiterated the view taken in Raj Kumar Karwal (supra) holding Officers of the Revenue Intelligence and ipsofacto of the Customs Department could not be deemed as “police officers” and confessions recorded before such officers would not be hit by Section 25 of the IEA. It would be pertinent to note that the Apex Court, in Nirmal Singh’s judgment endorsed the ratio rendered in Noor Aga’s decision, which, in turn, did not take into consideration the previous decisions rendered by the division bench in Raj Karwal and five-judge-bench in Badku Joti Savant (both supra) which essentially lay down the law. The ratio in Badku Joti Savant clearly distinguishes Police Officers from Customs/Excise Officers and holds that a confession made before such authorised officers would not be hit by Section-25 of IEA. This finding was affirmed the judgments delivered in RajKumar Karwal and Kanahiyalal on March21,1990 and January8,2008,respectively.Applying the doctrine of binding precedent, the Apex Court in Noor Aga (supra) was bound by the previous view on the subject issue.


4.CONCLUSION

From the aforesaid deliberation it is very clear that confession of an accused under NDPS Act, can only be recorded by an officer-in-charge of concerned police station conducting investigation or the officer empowered by the government U/S.53 of the NDPS Act. The office empowered to investigate U/S.53 are police officers within the meaning of section 25 of the Indian Evidence Act, 1872 and that confession recorded by officer empowered to investigate U/S.53 can never be admissible in the eyes of law, unless there is such express provision in the NDPS Act, as it would be against the policy and object of Section 25 of the Evidence Act.

[i]Tofan Singh v. State of Tamil Nadu, (2013) 16 S.C.C. 3 (India). [ii]Ram Singh v. Central Bureau of Narcotics, A.I.R. 2011 S.C. 2490 (India). [iii]Nirmal Singh v. Inspector (Customs), A.I.R. 2011 S.C.W.5697 (India). [iv]Supra note, 2. [v]Badku Joti Savant v. State of Mysore, (1966) 3 S.C.R. 698 (India). [vi]Raj Kumar Karwal v. Union of India, 1990 S.C.R. (2) 63. [vii]Kanahiyalal v. Union of India, A.I.R. 2008 S.C.1044. [viii]Supra note, 3. [ix]Noor Aga v. State of Punjab, A.I.R.2008 (S.C.W.) 5964 (India). [x]State of Punjab v. Barkat Ram, A.I.R.1962S.C. 276 (India). [xi]Supra note, 5. [xii]Supra note, 7.

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