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PETITIONER:

RAJ KUMAR KARWAL

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.WITHKIRPAL MOHAN VIRMANIV.STATE AND A

DATE OF JUDGMENT21/03/1990

BENCH:

AHMADI, A.M. (J)

BENCH:

AHMADI, A.M. (J)

FATHIMA BEEVI, M. (J)

CITATION:

1991 AIR 45 1990 SCR (2) 63

1990 SCC (2) 409 JT 1990 (1) 503

1990 SCALE (1)509

ACT:

Narcotic Drugs & Psychotropic Substances Act, 1985:

Sections 36A(d), 52, 52A, 53-Whether Officers of Department

of Revenue Intelligence invested with powers under section

53 are "police officers' within the meaning of section 25 of

the Evidence Act.

HEADNOTE:

The officers of the Department of Revenue Intelligence

(DRI) intercepted one truck. On search, a large quantity of

hashish was recovered. In the course of investigation the

names of the appellant and the petitioner surfaced. Both of

them made confessional statements to the DRI officials.

Complaints were lodged against the appellant and the

petitioner under the Narcotic DrUgs & Psychotropic Sub-

stances Act, 1985 and the Customs Act, 1962. On their apply-

ing for enlargement on bail, the selfincriminating

statements made by them to the DRI officials were used

against them by the prosecution. The appellant and the

petitioner argued before the Single Judge of the High Court

hearing the bail applications that the said statements were

not admissible in evidence in view of section 25 of the

Evidence Act. The learned Single Judge referred the question

of admissibility of the confessional statements to the

Division Bench which concluded that the officials of the DRI

invested with powers under section 53 of the Narcotic Act

did not possess any of the attributes of an officer-in-

charge of a police station conducting an investigation under

Chapter XII of the Code of Criminal Procedure. Against this

decision of the Division Bench, the appellant and the

petitioner have appealed to this Court.

It was contended before this Court on behalf of the

appellant and the petitioner that: (1) the expression

'police officer' used in section 25

64

of the Evidence Act must not be read in the narrow sense of

only those officers belonging to the regular police force

but must be construed broadly to include all those who have

been invested with powers of the police in the matter of

investigation of a penal offence; (2) when such extensive

powers are conferred on the officers appointed under the Act

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and the consequences are so drastic, it is desirable that

the protection of section 25, Evidence Act, should be ex-

tended to persons accused of the commission of any crime

punishable under the Narcotic Act; (3) since the Act does

not prescribe the procedure for investigation, the officers

invested with power under section 53 of the Act must neces-

sarily resort to the procedure under Chapter XH of the Code

of Criminal Procedure, 1973 which would require them to

culminate the investigation by submitting a report under

section 173 of the Code, and (4) since the officers referred

to in section 53 have been invested with all the powers of

an officer-in-charge of a police station for investigation

of offences under the Narcotic Act, they have all the at-

tributes of a police officer investigating a crime under

Chapter XII of the Code of Criminal Procedure, 1973 and

would, therefore, fail within the expression "police offi-

cer" in section 25 of the Evidence Act.

Dismissing the appeal and the special leave petition, this

Court,

HELD: (1) Section 25, Evidence Act, engrafts a wholesome

protection. It must not, therefore, be construed in a narrow

and technical sense but must be understood in a broad and

popular sense. But at the same time it cannot be construed

in so wide a sense as to include persons on whom only some

of the powers exercised by the police are conferred within

the category of police officers. [73B-C]

Balbir Singh v. State of Haryana, J.T. 1987 1 SC 210;

The State of Punjab v. Barkat Ram, [1962] 3 SCR 338 at 347

and Raja Ram Jaiswal v. State of Bihar, [1964] 2 SCR 752 at

761, referred to.

(2) Even if an officer is invested under any special law

with powers analogous to those exercised by a police officer

in charge of a police station investigating a cognizable

offence, he does not thereby become a police officer under

Section 25, Evidence Act, unless he has the power to lodge a

report under Section 173 of the Code. [76C]

Badku Joti Savant v. State Of Mysore, [1966] 3 SCR 698;

Romesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR

461; Illias v. Collector of Customs, Madras, [1969] 2 SCR

613; State of U.P. v.

65

Durga Prasad, [1975] 1 SCR 81 and Balkishan A. Devidayal v.

State of Maharashtra, [1981] 1 SCR 175, referred to.

(3) The role of the officers effecting arrest or sei-

zure, except in the case of a police officer, ends with

disposal of the person arrested and the article seized in

the manner provided by sections 52 and 52A of the Act.

Section 57 obliges the officer making the arrest or seizure

to report the same to his superior within 48 hours. These

powers are more or less similar to the powers conferred on

Customs Officers under the Customs Act, 1962. [80F-G]

(4) The important attribute of police power is not only

the power to investigate into the commission of cognizable

offence but also the power to prosecute the offender by

filing a report or a charge-sheet under section 173 of the

Code. [81H; 82A]

(5) There is nothing in the provisions of the Act to

show that the legislature desired to vest in the officers

appointed under section 53 of the Act, all the powers of

Chapter XII, including the power to submit a report under

Section 173 of the Code.[82C-D]

(6) Section 36A (1)(d) of the Act makes it clear that if

the investigation is conducted by the police, it would

conclude in a police report but if the investigation is made

by an officer of any other department including the DRI, the

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Special Court would take cognizance of the offence upon a

formal complaint made by such authorised officer of the

concerned Government. [82F-G]

(7) The Division Bench is right in holding that a con-

fessional or self-incriminating statement made by a person

accused of having committed a crime under the Narcotic Act

to an officer invested with the

power of investigation under section 53 of the Act was not

hit by section 25 of the Evidence Act. [67G]

Mahesh v. Union of India, [1988] 1 F.A.C. 339; Mangal

Singh v. The State of Gujarat, [1988] 2 F.A.C. 173; Radha

Kishan Marwari v. King Emperor, [1933] I.L.R. 12 Patna 46

and Sheikh Ahmed v. Emperor, [1927] I.L.R. 51 Bombay 78,

referred to.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 449

of 1989.

'From the Judgment and Order dated 7.12.1988 of the Delhi

High

66

Court in Cr. Rev. No. 170 of 1987.

WITH

Special Leave Petition (Crl.) No. 55 of 1988.

From the Judgment and Order dated 7.12. 1988 of the

Delhi High Court in Crl. Misc. (M) No. 1451 of 1987.

A.K. Sen, Kapil Sibal, Anil Dev Singh, Harlinder Singh,

R.N. Joshi, Ms. Kamini Jaiswal (NP), Mrs. Sushma Suri, A.K.

Srivastava and S.C. Agarwala for the appearing parties.

The Judgment of the Court was delivered by

AHMADI, J. Are the officers of the Department of Revenue

Intelligence (DRI) who have been invested with the powers of

an officer-in-charge of a police station under Section 53 of

Narcotic Drugs & Psychotropic Substances Act, 1985 (herein-

after called 'the Act'), "police officers" within the mean-

ing of Section 25 of the Evidence Act? If yes, is a confes-

sional statement recorded by such officer in the course of

investigation of a person accused of an offence under the

said Act, admissible in evidence as against him? These are

the questions which we are called upon to answer in these

appeals by special leave.

These are the facts, briefly stated. A motor truck DEL 3

124 was intercepted on July 12, 1986 near Calcutta by the

DRI officials. On search a large quantity of hashish weigh-

ing about 743 Kgs. found concealed in machines loaded in the

said truck was recovered. The machinery was meant to be

exported to Saudi-Arabia and the United Kingdom by M/s.

Northern Exports (Importers, Exporters and Commission

Agents) and M/s. Modern Machinery and Instruments, both of

New Delhi. After the hashish was found hidden in the ma-

chines loaded in the said vehicle, the same was attached

under a seizure memo. Joginder Singh and Shivraj Singh, the

drivers of the vehicle, were apprehended on the spot by the

DRI officials.

The disclosure made by these two drivers led to the

search of a Farm House at Khasra No.417, Gadaipur, Mehrauli,

New Delhi on the 13th/14th and 15th of July, 1986. In the

course of the said search hashish weighing about 976 Kgs.

was recovered from the machines lying in the said premises

and a further quantity of 365 Kgs. was recovered from Gunny

bags which were secreted underground in the

67

out-house of the Farm House. The DRI officials learnt in the

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course of investigation that the said hashish was to be

exported through M/s. Lee Muirhead (I) Ltd., and M/s. Shiekh

and Pandit, of Calcutta. Mohan Lal Pandit and Tushar Pandit,

the partners of the said two firms, respectively, were

arrested. One Subhash Narang who was arrested by the DRI

officials implicated the appellant Kitpal Mohan Virmani. In

the course of investigation the name of the other appellant

Raj Kumar Karwal also surfaced. Both these persons made

confessional statements to the DRI officials in the course

of investigation.

On the conclusion of the investigation a complaint was

lodged against the said two persons under Sections 21, 23,

29 and 30 of the Act and Section 135A of the Customs Act,

1962. The appellants now stand committed to the Court of

Sessions for trial. On the appellants applying for enlarge-

ment on bail under Section 439 of the Code of Criminal

Procedure, 1973 ('the Code' hereinafter), the self-incrimi-

nating statements made by the appellants to the DRI offi-

cials were used against them by the prosecution to establish

a prima-facie case and to prevent their enlargement on bail.

The appellants argued that the said statements were not

admissible in evidence in view of Section 25 of the Evidence

Act which provides that no confession made to a police

officer shall be proved as against a person accused of any

offence. The question which arose for consideration was

whether DRI officials invested with powers under Section 53

of the Act could be said to be "police officers" within the

meaning of Section 25, Evidence Act, so as to place the

confessional statements recorded by them beyond the reach of

the prosecution. The learned Single Judge of the Delhi High

Court before whom the bail applications came up for hearing

felt that the question of admissibility of the confessional

statement was of vital and far-reaching importance and since

it was likely to' arise in a number of such cases it was

desirable that it be answered by a larger bench. According-

ly, the question was referred to a Division Bench which

concluded that the officials of the DRI invested with powers

under Section 53 of the Act do not possess any of the at-

tributes of an officer-in-charge of a police station con-

ducting an investigation under Chapter XII of the Code. The

High Court held that a confessional or self-incriminating

statement made by a person accused of having committed a

crime under the Act to an officer invested with the power of

investigation under Section 53 of the Act was not hit by

Section 25 of the Evidence Act. After so answering the

question, the learned Judges constituting the Division Bench

sent back the matter for disposal in accordance with law to

the learned Single Judge. It is against this conclusion

reached by the Division Bench of the High Court that the

appellants are before us.

68

Section 25 of the Evidence Act reads as under:

"No confession made to a police officer shall be proved as

against a person accused of any offence."

(Emphasis supplied).

Thus a confession made to a police officer cannot be used or

tendered in evidence as against a person accused of any

offence. Section 26 next provides that no confession made by

any person whilst he is in the custody of a police officer,

unless it be made in the immediate presence of a Magistrate,

shah be proved as against such person. Section 27, which is

in the nature of an exception to Sections 25 and 26, pro-

vides that, when any fact is deposed to as discovered in

consequence of information received from a person accused of

any offence, in the custody of a police officer, so much of

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such information, whether it amounts to a confession or not,

as relates distinctly to the fact thereby discovered, may be

proved. The restriction on admissibility of a confession of

an accused person imposed by Sections 25 and 26 of the

Evidence Act, when made to a police officer and not in the

immediate presence of a Magistrate, is as a matter of public

policy designed to prevent the practice of securing confes-

sional statements of persons in police custody by means of

threats, inducements, torture, coercion, etc. what impelled

the introduction of this provision was the overwhelming

evidence which disclosed that the powers vested in the

police under the Code were often misused and abused by

police officers investigating crimes for extorting a confes-

sional statement from the accused with a view to earning

credit for the prompt solution of the crime and/or to secure

himself against allegations of supineness or neglect of

duty. It was also realised that once a police officer suc-

ceeds in extorting a confession from the person accused of

the commission of the crime by threats, inducements, etc.,

the real offender becomes more or less immune from arrest.

Therefore, the purpose of the restriction under Section 25

of the Evidence Act, is broadly speaking, two-fold, namely,

(i) to protect the person accused of a crime from third

degree treatment and, more importantly, (ii) to ensure a

proper and scientific investigation of the crime with a view

to bringing the real culprit to book.

It was, therefore, argued by the counsel for the appel-

lants that the expression "police officer" used in Section

25 must not be read in the narrow sense of only those offi-

cers belonging to the regular police force but must be

construed broadly to include all those who have been invest-

ed with powers of the police in the matter of investigation

of a

69

penal offence. Since Section 25 engrafts a rule of public

policy and is designed to protect a person accused of com-

mission of a crime from third degree treatment or induce-

ments or fraud, counsel argued, confessional statements

obtained by such officers exercising police powers, though

not belonging to regular police force, should also be ex-

cluded from being tendered in evidence against such an

accused person. Counsel submitted that since the officers

referred to in Section 53 have been invested with all the

powers of an officer-in-charge of a police station for

investigation of offences under the Act, they have all the

attributes of a police officer investigating a crime under

Chapter XII of the Code and would, therefore, fall within

the expression "police officer" in Section 25 of the Evi-

dence Act. To buttress this submission our attention was

invited to Section 2 (xxix) of the Act which says that words

and expressions used in the Act but not: defined will have

the same meaning as is assigned to them in the Code. Since

the word 'investigation' is not defined in the Act, counsel

submitted, that we must look to Section 2(h) of the Code

which defines the said expression to include all proceedings

under the Code for the collection of evidence conducted by a

police officer. Section 4(2) of the Code next provides that

all offences under any other law, i.e., other than the

Indian Penal Code, shall be investigated, inquired into,

tried, and otherwise dealt with according to the same provi-

sions, but subject to any enactment for the time being in

force regulating the manner or place of investigating,

inquiring into, trying or otherwise dealing with such of-

fences. It was argued that since the Act does not regulate

the manner of investigation, the investigation must be made

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in accordance with the provisions in that behalf contained

in Chapter XII of the Code; it must, therefore, be assumed

that the officer investigating the crime under the Act is a

"police officer", properly so called, and any confessional

statement made to such an officer must be rendered inadmis-

sible in evidence when the maker thereof is accused of

having committed an offence. To appreciate the submissions

made by counsel for the appellants it is necessary to under-

stand the scheme of the Act.

We may at once examine the scheme of the Act. Before the

enactment of the Act, statutory control over narcotic drugs

was exercised through certain State and Central enactments,

principally through the Opium Act, 1856, the Opium Act.

1878, the Dangerous Drugs Act, 1930, etc. However, with the

increase in drug abuse and illicit drug traffic certain

deficiencies in the existing laws surfaced which made it

necessary for Parliament to enact a comprehensive legisla-

tion sufficiently stringent to combat the challenge posed by

drug traffickers. India had participated in the second

International Opium

70

Conference held at Geneva in 1925 which adopted the conven-

tion relating to dangerous drugs. To give effect to the

obligations undertaken by the Government of India by signing

and ratifying the said convention, the Dangerous Drugs Act,

1930 came to be enacted to vest in the Central Government

the control over certain operations concerning dangerous

drugs. Article 25 of the Universal Declaration of Human

Rights, 1948, and Article 12 of the International Covenant

on Economical, Social and Cultural Rights, 1966, reflect the

concern of the international community for the protection of

the individual's right to the enjoyment of the highest

attainable standards of physical and mental health. The

other International Conventions which prompted the legisla-

tion are set out in Section 2(ix) of the Act. Besides, one

of the primary duties of the Government under our Constitu-

tion is improvement of public health. inter alia, by prohib-

iting the consumption of intoxicating drinks and drugs

injurious to health. The Act was, therefore, enacted, as is

evident from its Preamble, inter alia, to make stringent

provisions for the control and regulation of operations

relating to narcotic drugs and psychotropic substances and

to provide for deterrent punishment, including the forfei-

ture of property derived from or used in illicit traffic of

such drugs and substances.

The Act is divided into VI Chapters accommodating 83

Sections. Chapter I contains the short title of the Act.

definitions of various terms and expressions used therein

and provisions enabling addition to and omission from the

list of psychotropic substances. Chapter II entitled 'au-

thorities & officers' empowers the Central as well as the

State Government to make appointments of certain officers.

etc. for the purposes of the Act. The newly added Chapter

IIA provides for the Constitution of a national fund for

control of drug abuse. Provision for the prohibition, con-

trol and regulation on cultivation, production, manufacture,

etc., of any narcotic drug or psychotropic substance is to

be found in Chapter III. Chapter IV defines the offences

punishable under the Act and prescribes the penalties

therefore. Needless to say that the punishments prescribed

are very severe. In some cases the minimum punishment is 10

years with fine extending to Rs.2 lacs and above. By a

recent amendment death penalty is prescribed for certain

offences committed by persons after a previous conviction.

Provision for rebuttable presumption of mensrea-culpable

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mental state--is also made under Section 35 and Special

Courts are envisaged by Sections 36 and 36A for the trial of

offences punishable under the Act. Every offence punishable

under the Act is made cognizable by virtue of Section 37.,

notwithstanding the provisions of the Code. Then comes

Chapter V which outlines the proce-

71

dure to be followed by the officers appointed for the imple-

mentation of the various provisions of the Act. Sub-section

(1) of Section 51 empowers a Metropolitan Magistrate or a

Magistrate of the First Class or a Magistrate of the Second

Class, specially empowered, to issue a warrant for the

arrest of any person suspected of having committed any

offence punishable under the provisions of Chapter IV of the

Act and for the search of any premises, conveyance or place

in which such person is suspected of having kept or con-

cealed any narcotic drug or psychotropic substance. Sections

41(2), 42, 43, and 44 confer on officers named under Act the

powers of arrest, search and seizure without any order or

warrant from the concerned Magistrate. We will refer to

these provisions in some detail when we discuss the impact

thereof hereafter.

Power to stop, rummage and search any conveyance or

goods carried in any conveyance or on any animal is con-

ferred by Section 49. Section 51 provides that all warrants

issued and arrests, searches and seizures made shall be

governed by the provisions of the Code unless such provi-

sions are not consistent with the provisions of the Act.

Next comes Section 53 which we consider proper to repro-

duce at this stage. It reads as under:

"Section 53: Power to invest officers of certain departments

with powers of an officer-in-charge of a police station.--

(1) The Central Government, after consultation with the

State Government, may, by notification published in the

Official Gazette, invest any officer of the department of

central excise, narcotics, customs, revenue intelligence or

Border Security Force or any class of such officers with the

powers of an officer-in-charge of a police station for the

investigation of the offences under this Act.

(2) The State Government may, by notification published in

the Official Gazette, invest any officer of the department

of drugs control, revenue or excise or any class of such

officers with the powers of an officer-in-charge of a police

station for the investigation of offences under this Act."

Section 53A, inserted by Act 2 of 1989, makes a statement

made and signed by a person before any officer empowered

under Section 53 for

72

investigation of offences, during the course of such inves-

tigation, relevant in certain circumstances e.g., when the

maker of the statement is dead or cannot be traced or is

incapable of giving evidence or is kept away by the opposite

party or whose presence cannot be secured without delay or

when he is examined as a witness in the case. Section 54

permits raising of a rebuttable presumption against an

accused in a trial for any offence under the Act to the

extent permitted by clauses (a) to (d) thereof. Section 55

enjoins upon an officer-in-charge of a police station to

take charge of and keep in safe custody any article seized

under the Act and made over to him. Section 57 enjoins upon

the officer making an arrest or effecting seizure under the

Act to make a full report thereof to his immediate superior

within 48 hours. Section 58 provides the punishment for

vexatious entry, search, seizure or arrest. Section 67

empowers an authorised officer to call for information or

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require any person to produce or deliver any document or

thing useful or relevant to the enquiry or examine any

person acquainted with the facts and circumstances of the

case. The newly added Chapter VA deals with forfeiture of

property derived from and used in illicit traffic of drugs,

etc. The last Chapter VI contains miscellaneous provisions.

The scheme of the Act clearly shows that the Central

Government is charged with the duty to take all such meas-

ures as it deems necessary or expedient for preventing and

combating the abuse of narcotic drugs (Section 2(xiv) and

psychotropic substances (Section 2(xxiii) and the menance of

illicit traffic (Section 2(viiia) therein As pointed out

earlier Chapter IV defines the offences and prescribes the

punishments for violating the provisions of the Act. We must

immediately concede that the punishments prescribed for the

various offences under the Act are very severe e.g., Sec-

tions 21 and 23 prescribe the punishment of rigorous impris-

onment for a term which shall not be less than ten years but

which may extend to twenty years and shall also be liable to

fine which shall not be less than one lakh rupees but which

may extend to two lakh rupees, Section 29 which makes abet-

ment an offence prescribes the punishment provided for the

offence abetted while Section 30 prescribes the punishment

which is one half of the punishment and fine for the princi-

pal offence. In addition thereto certain presumptions,

albeit rebuttable, are permitted to be raised against the

accused. Counsel for the appellants, therefore, argued that

when such extensive powers are conferred on the officers

appointed under the Act and the consequences are so drastic,

it is desirable that the protection of Section 25, Evidence

Act, should be extended to persons accused of the commission

of any crime punish-

73

able under the Act. In this connection our attention was

drawn to the observations of this Court in Balbir Singh v.

State of Haryana, J.T. 1987 1 S.C. 2 10 wherein it is empha-

sised that when drastic provisions are made by a statute the

duty of care on the authorities investigating the crime

under such law is greater and the investigation must not

only be thorough but also of a very high order. We, there-

fore, agree that as Section 25. Evidence Act, engrafts a

wholesome protection it must not be construed in a narrow

and technical sense but must be understood in a broad and

popular sense. But at the same time it cannot be construed

in so wide a sense as to include persons on whom only some

of the powers exercised by the police are conferred within

the category of police officers. See The State of Punjab v.

Barkat Ram, [1962] 3 SCR 338 at 347 and Raja Ram Jaiswal v.

State of Bihar, [1964] 2 SCR 752 at 761. This view has been

reiterated in subsequent cases also.

The question then is whether the expression "police

officer", even if liberally construed, would take in its

fold officers of other departments including the DRI invest-

ed with powers under Section 53 of the Act. According to the

view taken by the Bombay High Court in Sheikh Ahmed v.

Emperor, [1927] I.L.R. 51 Bombay 78 they perhaps would, but

not if the view expressed by the Patna High Court in Radha

Kishan Marwari v. King Emperor, [933] I.L.R. 12 Patna 46

prevails. These two lines of thought have been the subject

matter of scrutiny by this Court in a few subsequent cases.

We will presently refer to them.

In the case of Barkat Ram this Court was called upon to

consider whether Customs Officers to whom confessional

statements were made could be said to be police officers

within the meaning of Section 25, Evidence Act. On behalf of

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the prosecution it was argued that the mere tact that cer-

tain powers of arrest, search, seizure and recording of

evidence have been conferred on such officers, where contra-

vention of the provisions of the statute is complained of,

is not sufficient to make them police officers under Section

25 of the Evidence Act. The respondents on the other hand

contended that officers on whom such powers are conferred

are in fact police officers, no matter by what name they are

called. This Court, by majority, pointed out that the pri-

mary function of the police under the Police Act, 1861, is

prevention and detection of crime while the Customs Officers

are mainly interested in the detection and prevention of

smuggling of goods and safeguarding the recovery of customs

duties, i.e., they are more concerned with the goods and

customs duty, than with the offender. After referring to the

provisions of the various statutes including Section 5(2) of

the Old Code (now Section 4(2). This Court held at pages

364-365 as under:

74

"The foregoing consideration of the case law and the statu-

tory provisions yields the following results: The term

'police officer' is not defined in the Evidence Act, or, as

a matter of fact, in any other contemporaneous or subsequent

enactment. The question, therefore, fails to be decided on a

fair construction of the provisions of s. 25 of the Evidence

Act, having regard to the history of the legislation and the

meaning attributed to that term in and about the time when

s. 25 of the Evidence Act came to be inserted therein. If a

literal meaning is given to the term 'police officer' indi-

cating thereby an officer designated as police officer, it

will lead to anomalous results. An officer designated as a

police officer, even though he does not discharge the well

understood police functions, will be hit by s. 25 of the

Evidence Act, whereas an officer not so designated but who

has all the powers of a police officer would not be hit by

that section; with the result, the object of the section

would be defeated. The intermediate position, namely, that

an officer can be a police officer only if powers and duties

pertaining to an officer in charge of a police station

within the meaning of the Code of Criminal Procedure are

entrusted to him, would also lead to an equally anomalous

position, for, it would exclude from its operation a case of

an officer on whom specific powers and functions are con-

ferred under specific statutes without reference to the Code

of Criminal Procedure does not define a 'police officer' and

s. 5(2) thereof makes the procedure prescribed by the Code

subject to the procedure that may be prescribed by any

specific Act. This construction would make the provisions of

s. 25 of the Evidence Act otiose in respect of officers on

whom specific and incontrovertible police powers are con-

ferred. But the third position would not only carry out the

intention of the Legislature, but would also make the sec-

tion purposive and useful without doing any violence to the

language of the section. A police officer within the meaning

of s. 25 of the Evidence Act may be defined thus: An offi-

cer, by whatever designation he is called, on whom a statute

substantially confers the powers and imposes the duties of

the police is a police officer within the meaning of s. 25

of the Evidence Act."

In the final analysis this Court held that the duties of the

Customs Officer were substantially different from those of

the police and

75

merely because they possessed certain powers having similar-

ity with those of police officers, cannot make them police

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officers within the meaning of Section 25 of the Evidence

Act.

In the case of Raja Ram Jaiswal, the undisputed facts

were that a motor car was intercepted by an Excise Inspector

and searched. On search five bundles of non-duty paid Napali

charas were found and seized. The Excise Inspector recorded

the statements of all persons found in the car including the

appellant. The admissibility of the appellant's statement,

was challenged on the ground that it was hit by Section 25,

Evidence Act, This Court, by majority, (Raghubar Dayal, J.)

dissenting, laid down the test in the following words:

"The test for determining whether such a person is a 'police

officer' for the purpose of s. 25 of the Evidence Act would,

in our judgment, be whether the powers of a police officer

which are conferred on him or which are exercisable by him

because he is deemed to be an officer in charge of a police

station establish a direct or substantial relationship with

the prohibition enacted by s. 25 that is, the recording of a

confession. In our words, the test would be whether the

powers are such as would tend to facilitate the obtaining by

him of a confession from a suspect or a delinquent. If they

do, then it is unnecessary to consider the dominant purpose

for which he is appointed or the question as to what other

powers he enjoys"

Applying this test this Court concluded that the Excise

Inspector, who recorded the appellant's confessional state-

ment was in fact a police officer, properly so-called,

within the meaning of that expression in Section 25, Evi-

dence Act.

Both these decisions came up for consideration before a

bench consisting of five learned Judges of this Court in

Badku Joti Savant v. State of Mysore, [1966] 3 S.C.R. 698.

In that case the appellant was found in possession of con-

traband gold when his house was raided and searched in the

presence of panches on November 27, 1960. The appellant was

arrested on November 30, 1960 and his statement was reduced

to writing and his signature was obtained thereon. In the

course of his statement he admitted knowledge about the

existence of the contraband goods. Two questions arose for

determination, the first related to the interpretation of

Section 167(81) of the Sea Customs Act and the second

touched the point of admissibility of the confessional

76

statement in view of Section 25, Evidence Act. This Court

distinguished Raja Ram Jaiswal's case and held that the

facts of the case on hand were more in accord with the case

of Barkat Ram. Accordingly, it held that the Central Excise

Officer was not a police officer under Section 25 of the

Evidence Act. This Court while dealing with the submission

based on Section 21(2) of the Central Excise & Salt Act,

1944, observed that even though this sub-section confers on

the Central Excise Officer the same powers as an

officer-in-charge of a police station investigating a cog-

nizable case "It does not, however, appear that a Central

Excise Officer under the Act has power to submit a charge-

sheet under Section 173 of the Code ...... ". Thus the

ratio of the decision appears to be that even if an officer

is invested under any special law with powers analogous to

those exercised by police officer in charge of a police

station investigating a cognizable offence, he does not

thereby become a police officer under Section 25, Evidence

Act, unless he has the power to lodge a report under Section

173 of the Code.

In Ramesh Chandra Mehta v. State of West Bengal, [1969]

2 S.C.R. 461 a bench of five learned Judges held:

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" ...... the test for determining whether an officer of

customs is to be deemed a police officer is whether he is

invested with all the powers of a police officer qua inves-

tigation of an offence, including the power to submit a

report, under s. 173 of the Code of Criminal, Procedure. It

is not claimed that a Customs Officer exercising power to

make an enquiry may submit a report under s. 173 of the Code

of Criminal Procedure".

In Illias v. Collector of Customs, Madras, [1969] 2

S.C.R. 613 the' same bench was required to consider if

Customs Officials under the Customs Act, 1962, were police

officers within the meaning of Section 25. Evidence Act.

This Court referred to all the cases discussed hereinbefore

and finally approved the test laid down in Badku Joti Savant

and reiterated in Ramesh Chandra Mehta.

In State of U. P. v. Durga Prasad, [1975] 1 SCR 881, the

question for consideration was whether an enquiry under

Section 8(1) of the Railway Property (Unlawful Posssession)

Act, 1966, is an investigation under the Code; if yes,

whether statements recorded in the course of investigation

are hit by Section 162 of the Code and if such statements

are confessional in nature can they be admitted in evidence

in

77

view of Section 25, Evidence Act. This Court observed at

pages 886887 as under:

"The fight and duty of an investigating officer to file a

police report or a charge-sheet on the conclusion of inves-

tigation is the hallmark of an investigation under the Code.

Section 173(1)(a) of the Code provides that as soon as the

investigation is completed the officer in-charge of the

police station shall forward to a Magistrate empowered to

take cognizance of the offence on a police report, a report

in the form prescribed by the State Government. The officer

conducting an inquiry under section 8(1) cannot initiate

court proceedings by filing a police report as is evident

from the two provisos to section 8(2) of the Act.

.......... On the conclusion of an enquiry under sec-

tion 8(1), therefore, if the officer of the Force is of the

opinion that there is sufficient evidence or reasonable

ground of suspicion against the accused, he must file a

complaint under section 190(1)(a) of the Code in order that

the Magistrate concerned may take cognizance of the offence.

Thus an officer conducting an inquiry under section 8(1) of

the Act does not possess all the attributes of an officer-

incharge of a police station investigating a case under

Chapter XIV of the Code. He possesses but a part of those

attributes limited to the purpose of holding the inquiry".

In a more recent case, Balkishan A. Devidayal etc. v.

State of Maharashtra etc., [1981] 1 SCR 175 the question

which arose for determination was whether an Inspector of

the Railway Protection Force enquiring into an offence under

Section 3 of the Railway Property (Unlawful Possession) Act,

1966, can be said to be a "police officer" under Section 25,

Evidence Act. This Court, after a review of the case law,

concluded at page 201 as under:

"In the light of the above discussion, it is clear that an

officer of the RPF conducting an enquiry under Section 8(1)

of the 1966 Act has not been invested with all the powers of

an officer-in-charge of a police station making an investi-

gation under Chapter XIV of the Code. Particularly, he has

no power to initiate prosecution by filing a chargesheet

before the Magistrate concerned under Section 173 of

78

the Code, which has been held to be the clinching attribute

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of an investigating 'police officer'. Thus, judged by the

test laid down in Badku Jyoti Savant's which has been con-

sistently adopted in the subsequent decisions noticed above,

Inspector Kakade of the RPF could not be deemed to be a

'police officer' within the meaning of Section 25 of the

Evidence Act ........... "

Keeping in view the law laid down by this Court in the

decisions referred to above, we may now proceed to apply the

test in the context of the provisions of the Act. We have

noticed that Section 37 makes every offence punishable under

the Act cognizable notwithstanding anything contained in the

Code. Section 41(1) empowers a Magistrate to issue a warrant

for the arrest of any person suspected of having committed

any offence under Chapter IV, or for the search of any

building, conveyance or place in which he has reason to

believe any narcotic drug or psychotropic substance or any

document or other article is kept or concealed. Section

41(2) empowers certain gazetted officers of central excise,

narcotics, customs, revenue intelligence, etc., of the

Central Government or the Border Security Force, or any such

officer of the revenue, excise, police, drug control, or

other departments of the State Governments empowered by

general or special orders in this behalf to issue an author-

isation for the arrest of any person believed to have com-

mitted an offence or for the search of any building, convey-

ance or place whether by day or by night in which the of-

fending drug or substance or article is kept or concealed.

Section 42 enables certain officers duly empowered in this

behalf by the Central or the State Governments to enter into

and search any building, conveyance or enclosed place be-

tween sunrise and sunset without any warrant or authorisa-

tion, if there is reason to believe from personal knowledge

or information given any person and reduced to writing, that

any narcotic drug or psychotropic substance inrespect of

which such an offence has been committed or any document or

other article which may furnish evidence of the commission

of such offence has been kept or concealed therein and seize

the same. The proviso requires that the concerned officer

must record the grounds of his belief before exercising

power under the said provision. Sub-section (2) of section

42 enjoins upon an officer taking down the information or

recording grounds for his belief to forward a copy thereof

to his immediate superior. Section 43 confers on any officer

of any of the departments mentioned in Section 42, power to

seize in any public place or in transit, any narcotic drug

or psychotropic substance, in respect of which he has reason

to believe an offence punishable under

79

Chapter IV has been committed, and along therewith any

animal or conveyance or article liable to confiscation under

the Act and any document or other article which furnishes

evidence of the commission of the offence relating to such

drug or substance. Power is also conferred on such an offi-

cer to detain and search any person whom he has reason to

believe to have committed an offence under Chapter IV and if

such person has any narcotic drug or psychotropic substance

in his possession and such possession appears to him unlaw-

ful, arrest him, and any other person in his company. By

Section 44 the provisions of Sections 41, 42 and 43 are made

applicable in relation to offences concerning coca plant,

opium poppy or cannabis plant. Where it is not practicable

to seize any goods (including standing crop) liable to

confiscation, any officer duly authorised under Section 42

is empowered to serve on the owner or person in possession

of the goods, an order that he shall not remove, part with

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or otherwise deal with the goods except with the previous

permission of such officer. Section 48 confers on the Magis-

trate or any officer of the gazetted rank empowered under

Section 42, power of attachment of crop illegally cultivat-

ed. Section 49 empowers any officer authorised under Section

42, if he has reason to suspect that any animal or convey-

ance is, or is about to be, used for the transport of any

narcotic drug or psychotropic substance in respect of which

he suspects that any provision of the Act has been. or is

being, or is about to be contravened, to stop such animal or

conveyance and rummage and search the conveyance or part

thereof; examine and search any goods on the animal or in

the conveyance and use all lawful means for stopping it and

where such means fail, the animal or conveyance may be fired

upon. Section 50 enjoins upon the officer who is about to

search any person, if such person so requires, to take him

without unnecessary delay to the nearest gazetted officer of

any of the departments mentioned in Section 42 or to the

nearest Magistrate. Then comes Section 51 which says that

the provisions of the Code shall apply, insofar as they are

not inconsistent with the provisions of the Act, to all

warrants issued and arrests, searches and seizures made

under the Act. On a plain reading of the section it is clear

that if there is any inconsistency between the provisions of

the Act and the Code, the former will prevail. Section 52

deals with the disposal of persons arrested and articles

seized under Sections 41, 42, 43 or 44 of the Act. It en-

joins upon the officer arresting a person to inform him of

the grounds for his arrest. It further provides that every

person arrested and article seized under warrant issued

under sub-section (1) of Section 41 shall be forwarded

without unnecessary delay to the Magistrate by whom the

warrant was issued. Where, however, the arrest or seizure is

effected by virtue of Sections 41(2), 42, 43 or 44 the

Section

80

enjoins upon the officer to forward the person arrested and

the article seized to the officer-in-charge of the nearest

police station or the officer empowered to investigate under

Section 53 of the Act. Special provision is made in Section

52A in regard to the disposal of seized narcotic drugs and

psychotropic substances. Then comes Section 53 which we have

extracted earlier. Section 55 requires an officer-incharge

of a police station to take charge of and keep in safe

custody, pending the orders of the Magistrate, all articles

seized under the Act within the local area of that police

station and which may be delivered to him. Section 57 en-

joins upon any officer making an arrest or effecting seizure

under the Act to make a full report of all the particulars

of such arrest or seizure to his immediate official superior

within 48 hours next after such arrest or seizure. These

provisions found in Chapter V of the Act show that there is

nothing in the Act to indicate that all the powers under

Chapter XII of the Code, including the power to file a

report under Section 173 of the Code have been expressly

conferred on officers who are invested with the powers of an

officer-in-charge of a police station under Section 53, for

the purpose of investigation of offences under the Act.

The Act was enacted for the control and regulation of

operations relating to narcotic drugs and psychotropic

substances. Under Sections 41, 42, 43, 44 and 49 of the Act

certain powers of arrest, search and seizure have been

conferred on certain officers of different departments. If

the arrest or seizure is made pursuant to a warrant issued

under Section 41(1), the person arrested or the article

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seized has to be forwarded to the Magistrate with despatch.

If the arrest or seizure is made under Sections 41(2), 42,

43 or 44 the person arrested or the article seized has to be

forwarded to the officer-in-charge of the nearest police

station or the officer empowered under Section 53 of the

Act. Special procedure has been prescribed for the disposal

of narcotic drugs and psychotropic substances having regard

to the factors set out in Section 52A. The role of the

officers effecting arrest or seizure, except in the case of

a police officer, ends with the disposal of the person

arrested and the article seized in the manner provided by

Section 52 and 52A of the Act. Section 57 obliges the offi-

cer making the arrest or seizure to report the same to his

superior within 48 hours. These powers are more or less

similar to the powers conferred on Customs Officers under

the Customs Act, 1962.

For the offences under the Act, the investigation is

entrusted to officers in whom powers of an officer-in-charge

of a police station are vested by a notification issued

under Section 53 of the Act by the

81

concerned Government. Thus a special investigating agency is

created to investigate the commission of offences under the

Act. There is no doubt that the Act creates new offences,

empowers officers of certain departments to effect arrest,

search and seizure, outlines the procedure therefore, pro-

vides for a special machinery to investigate these offences

and provides for the constitution of Special Courts for the

trial of offences under the Act, notwithstanding anything

contained in the Code. But, argued learned counsel for the

appellants, the officers empowered to investigate under

Section 53 of the Act must of necessity follow the procedure

for investigation under Chapter XII of the Code, since the

Act does not lay down its own procedure for investigation.

By virtue of Section 51 of the Act, the provisions of the

Code would apply since there is no provision in the Act

which runs counter to the provisions of the Code. It was

said that since the term 'investigation' is not defined by

the Act, the definition thereof found in Section 2(h) of the

Code must be invoked in view of Section 2(xxix) of the Act

which in terms states that words and expressions used in the

Act but not defined will carry the meaning assigned of them,

if defined in the Code. Section 2(h) of the Code, which

defines 'investigation' by an inclusive definition means all

proceedings under the Code for collection of evidence con-

ducted by a police officer or by any person authorised by a

magistrate in this behalf. Under Section 4(2) of the Code

all offences under any other law have to be investigated,

inquired into, tried and otherwise dealt with according to

the provisions contained in the Code. However, according to

Section 5, nothing contained in the Code shall, unless

otherwise provided, affect any special or local law or any

special jurisdiction or power conferred, or any special form

of procedure prescribed, by any other law for the time being

in force. The power to investigate is to be found in Chapter

XII of the Code which begins with Section 154 and ends with

Section 176. The scheme of this Chapter is that the law can

be set in motion in regard to a cognizable offence on re-

ceipt of information, written or oral, by the officer-in-

charge of a police station. Once such information is re-

ceived and registered, Section 156 empowers any officer-

incharge of the police station to investigate the same

without any magisterial order. The investigation which so

commences must be concluded, without unnecessary delay, by

the submission of a report under Section 173 of the Code to

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the concerned Magistrate in the prescribed form. Any person

on whom power to investigate under Chapter XII is conferred

can be said to be a 'police officer', no matter by what name

he is called. The nomenclature is not important, the content

of the power he exercises is the determinative factor. The

important attribute of police power is not only the power to

investigate

82

into the commission of cognizable offence but also the power

to prosecute the offender by filing a report or a charge-

sheet under Section 173 of the Code. That is why this Court

has since the decision in Badku Joti Savant accepted the

ratio that unless an officer is invested under any special

law with the powers of investigation under the Code, includ-

ing the power to submit a report under Section 173, he

cannot be described to be a 'police officer' under Section

25, Evidence Act. Counsel for the appellants, however,

argued that since the Act does not prescribe the procedure

for investigation, the officers invested with power under

Section 53 of the Act must necessarily resort to the proce-

dure under Chapter XII of the Code which would require them

to culminate the investigation by submitting a report under

Section 173 of the Code. Attractive though the submission

appears at first blush, it cannot stand close scrutiny. In

the first place as pointed out earlier there is nothing in

the provisions of the Act to show that the legislature

desired to vest in the officers appointed under Section 53

of the Act, all the powers of Chapter XII, including the

power to submit a report under Section 173 of the Code. But

the issue is placed beyond the pale of doubt by sub-section

(1) of Section 36A of the Act which begins with a non-ob-

stante clause--notwithstanding anything contained in the

Code--and proceeds to say in clause (d) as under:

"36-A(d): a Special Court may, upon a perusal of police

report of the facts constituting an offence under this Act

or upon a complaint made by an officer of the Central Gov-

ernment or a State Government authorised in this behalf,

take cognizance of that offence without the accused being

committed to it for trial."

This clause makes it clear that if the investigation is

conducted by the police, it would conclude in a police

report but if the investigation is made by an officer of any

other department including the DRI, the Special Court would

take cognizance of the offence upon a formal complaint made

by such authorised officer of the concerned Government.

Needless to say that such a complaint would have to be under

Section 190 of the Code. This clause, in our view, clinches

the matter. We must, therefore, negative the contention that

an officer appointed under Section 53 of the Act, other than

a police officer, is entitled to exercise 'all' the powers

under Chapter XII of the Code, including the power to submit

a report or charge-sheet under Section 173 of the Code. That

being so, the case does not satisfy the ratio of Badku Joti

Savant and subsequent decisions referred to earlier.

83

In view of the above discussion we are of the opinion

that the view taken by the Delhi High Court in the impugned

Judgment, which is in accord with the view taken by the

Allahabad High Court in Mahesh v. Union of India, [1988] 1

F.A.C. 339 and the Gujarat High Court in Mangal Singh v. The

State of Gujarat, [1988] 2 F.A.C. 173, is unassailable and

must be upheld. We, therefore, see no merit in the appeal as

well as the special leave petition and hereby dismiss them.

R.S.S. Appeal and Petition dismissed.

84

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