REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.152 OF 2013

TOFAN SINGH …Appellant

Versus

STATE OF TAMIL NADU …Respondent

WITH

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

J U D G M E N T

R.F. Nariman, J.

1.These Appeals and Special Leave Petitions arise by virtue of a

reference order of a Division Bench of this Court reported as Tofan

Singh v. State of Tamil Nadu (2013) 16 SCC 31. The facts in that

1

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(c) In any case, the said statement having been retracted,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 v. Union of

India (1990) 2 SCC 409 and Kanhaiyalal v. Union of India (2008) 4

SCC 668, as also certain other judgments, most notably Abdul Rashid

v. State of Bihar (2001) 9 SCC 578 and Noor Aga v. 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

2

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 v. Director of Revenue Intelligence [2001 Cri LJ

3183 (AP)].”

3

3.Shri Sushil Kumar Jain, learned Senior Advocate appearing for the

Appellants in Criminal Appeal Nos. 152 of 2013; 836 of 2011; 433 of

2014; 77 of 2015 and 1202 of 2017, outlined six issues before us, which

really boil down to two issues, namely:

“1. Whether an officer “empowered under Section 42 of

the NDPS Act” and/or “the officer empowered under

Section 53 of the NDPS Act” are “Police Officers” and

therefore statements recorded by such officers would be

hit by Section 25 of the Evidence Act; and

2. What is the extent, nature, purpose and scope of the

power conferred under Section 67 of the NDPS Act

available to and exercisable by an officer under section 42

thereof, and whether power under Section 67 is a power

to record confession capable of being used as substantive

evidence to convict an accused?”

4.Shri Jain took us through the provisions of the NDPS Act which,

according to him, is a special Act, and a complete code on the subject it

covers. He referred to how the NDPS Act sometimes overrides the

Code of Criminal Procedure, 1973 (“CrPC”); sometimes says that it is

applicable; and sometimes states that it is made applicable with

necessary modifications. According to Shri Jain, section 41(2) and

section 42 of the NDPS Act refer to a ‘First Information Report’ being

lodged by the officers referred to therein. As the source of information is

required to be kept a secret under section 68 of the NDPS Act, the

officer receiving information under these provisions is therefore treated

as an informant. The tasks assigned to officers under section 42 of the

NDPS Act are four in number, namely, entry, search, seizure or arrest.

4

As opposed to this, section 53 of the NDPS Act invests the designated

officers with all the powers of an ‘officer-in-charge of a police station’ for

the process of investigation, which would then begin after information

collected by a section 42 officer is handed over to the officer designated

under section 53, and end with a final report being submitted under

section 173 of the CrPC to the Special Court under section 36A(1)(d) of

the NDPS Act. According to the learned Senior Advocate, section 67 is

to be read only with section 42, and is a power to call for information so

that the “reason to believe” mentioned in section 42 can then be made

out, without proceeding further under the NDPS Act. Thus, “reason to

believe”, which is at a higher threshold than “reason to suspect” – which

phrase has been used in section 49 of the NDPS Act – is a condition

precedent to the officer thereafter moving forward. Shri Jain argued that

the reason to believe must be formed before the officer acts, and that

therefore, section 67 operates at a stage antecedent to the exercise of

the powers of the officer designated under section 42. He then went on

to argue that these provisions must be construed strictly in favour of the

subject, inasmuch as they impinge upon the fundamental right to

privacy, recently recognised by this Court in K.S. Puttaswamy and Anr.

v. Union of India and Ors. (2017) 10 SCC 1. He also argued that the

NDPS Act therefore incorporates a legislative balance between powers

of investigation and the obligation to uphold privacy rights of the

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individual. He then went on to argue that the “information” under section

67 of the NDPS Act cannot be equated with “evidence”, which is only

evidence before a court, as per the definition of “evidence” under the

Indian Evidence Act, 1872 (“Evidence Act”). He cited judgments to

show that even witness statements made under section 164 of the

CrPC are not substantive evidence. He then contrasted section 67 of

the NDPS Act with the power of officers under revenue acts to record

evidence, such as section 108 of the Customs Act 1962, and section 14

of the Central Excise Act 1944. He then went on to state that as none of

the safeguards contained in sections 161-164 of the CrPC are

contained in the NDPS Act when the person is examined under section

67, obviously statements made to officers under section 67 cannot

amount to substantive evidence on the basis of which conviction can

then take place. An important argument was that it would be highly

incongruous if an officer of the police department, empowered under

section 42 and exercising the same powers under section 67, records a

confessional statement which would be hit by section 25 of the

Evidence Act, whereas officers exercising the same powers under the

NDPS Act, who are not regular policemen, would be able to record

confessional statements, and bypass all constitutional and statutory

safeguards. Shri Jain contended that as the provisions of the NDPS Act

are extremely stringent, they must be strictly construed, and safeguards

6

provided must be scrupulously followed. According to him, arbitrary

power conferred under section 67 upon an officer above the rank of

peon, sepoy or constable, but denied to a senior officer under section

53, would be ex facie contrary to Article 14 of the Constitution. On the

other hand, section 53 statutorily confers powers on the named officer

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

offences under the NDPS Act. This, according to the learned counsel,

would contain the entire gamut of powers contained in sections 160-173

of the CrPC, including the power to then file a charge-sheet before the

Special Court under section 36A(1)(d) of the NDPS Act. The learned

counsel argued that section 53A of the NDPS Act shows that

confessional statements that are made under section 161 of the CrPC,

which are otherwise hit by section 162 of the CrPC, are made relevant

only in the two contingencies mentioned under section 53A of the NDPS

Act, being exceptions to the general rule stated in section 162 of the

CrPC. He contended, therefore, that section 67 of the NDPS Act cannot

be used to bypass section 53A therein and render it otiose. He stressed

the fact that all offences under the NDPS Act are cognizable offences,

unlike under revenue statutes like the Customs Act, 1962 and Central

Excise Act, 1944, and then argued that the “complaint” that is referred

to in section 36A(1)(d) of the NDPS Act has only reference to a

complaint filed under section 59(3) therein. He also pointed out the

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anomalies of granting to the concerned officer under section 53 all the

powers of the officer-in-charge of a police station, which, unless it ends

up in the form of a final report, would leave things hanging. Thus, if the

concerned officer finds that there is no sufficient evidence, and that the

accused should be released, section 169 of the CrPC would apply. In

the absence of section 169 of the CrPC, as has been contended by the

other side, there is no procedure for discharge of the accused if

evidence against him is found to be wanting. In a without-prejudice

argument that complaints under the NDPS Act can be made outside of

section 59(3), Shri Jain stressed the fact that there is in reality and

substance no difference between the “complaint” under the NDPS Act

and the charge-sheet under the CrPC, as investigation has already

been carried out even before the complaint under the NDPS Act is

made. He therefore argued that both Raj Kumar Karwal (supra) and

Kanhaiyalal (supra) require to be overruled by us, as they erroneously

applied earlier judgments which concerned themselves with revenue

statutes, and not penal statutes like the NDPS Act. He then referred us

to Article 20(3) of the Constitution, and section 25 of the Evidence Act,

and cited a plethora of case law to drive home the point that in this

country, as coercive methods are used against persons during the

course of investigation, all confessions made to a police officer, whether

made during the course of investigation or even before, cannot be relied

8

upon as evidence in a trial. He then referred to several judgments of

this Court to state that the expression “police officer” is not defined, and

the functional test therefore must apply, namely, that a person who is

given the same functions as a police officer under the CrPC, particularly

in the course of investigating an offence under the Act, must be

regarded as a police officer for the purpose of section 25 of the

Evidence Act. In the course of his submissions, he referred to a number

of judgments of this Court, and most particularly, the judgments of State

of Punjab v. Barkat Ram (1962) 3 SCR 338; Raja Ram Jaiswal v.

State of Bihar (1964) 2 SCR 752; 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; and Balkishan A. Devidayal v. State of

Maharashtra (1980) 4 SCC 600. He also provided a useful chart of the

difference in the provisions contained in the NDPS Act and the Railway

Property (Unlawful Possession) Act, 1966, the Sea Customs Act, 1878,

the Central Excise Act, 1944, and the Customs Act, 1962.

5.Shri Puneet Jain supplemented these arguments with reference to a

recent judgment of a Constitution Bench of this Court in Mukesh Singh

v. State (Narcotic Branch of Delhi) 2020 SCC OnLine SC 700, and

stated that as some discordant notes are to be found in that judgment, it

may be referred to a larger Bench. In any case, he argued that the

9

comments made in that judgment about investigation starting from the

section 42 stage itself were only in the context of the complainant and

the investigator being the same, in which case, if prejudice was caused,

the trial may be vitiated in terms of the judgment.

6.Shri Anand Grover, learned Senior Advocate, appearing for the

Appellant in Criminal Appeal No. 90 of 2017, followed in the wake of the

two Jains, père et fils. The learned Senior Advocate stressed the

various provisions of the NDPS Act which showed that it was extremely

stringent, in that it had minimum sentences for even possession of what

is regarded as a “commercial quantity” of a drug or psychotropic

substance, being a minimum sentence of rigorous imprisonment of 10

years, going up to 20 years. This, coupled with various presumptions

raised against the accused, and stringent bail conditions, all made the

NDPS Act a very stringent measure of legislation, which, the more

stringent it is, must contain necessary safeguards against arbitrary

search, seizure and arrest, or else it would fall foul of the fundamental

rights chapter of the Constitution. He argued that the NDPS Act was

penal in nature, and contained regulatory provisions as well, but given

the fact that we are concerned only with the penal provisions, could be

distinguished from the revenue statutes whose dominant object is the

collection of revenue, and not the punishment of crime. He stressed the

fact that the “enquiry” under section 67 of the NDPS Act is not a judicial

10

enquiry, but only a preliminary fact-finding exercise before a “reason to

believe” is formed under section 42, which could then lead to

investigation of an offence under the Act. He also referred to section 50

of the NDPS Act, and stated that given a higher protection as to

conditions under which a search of person may be conducted, it would

be inconceivable to then conclude that under section 67, confessional

statements can be recorded without more, subject to no safeguards

whatsoever, on which convictions can then be based. He relied strongly

on State of Punjab v. Baldev Singh (1999) 6 SCC 172 and its

aftermath Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1

SCC 609 to argue that even after sub-sections (5) and (6) were added

to section 50 of the NDPS Act, they did not dilute what was contained in

section 50(1)-(4), and could only be used in emergent and urgent

situations. He referred to statutes like the Terrorist and Disruptive

Activities (Prevention) Act, 1987 (“TADA”), and stated that where under

certain limited circumstances exceptions were made to section 25 of the

Evidence Act, they were hedged in with a number of safeguards, as

were laid down by this Court in Kartar Singh v. State of Punjab (1994)

3 SCC 569. According to him, therefore, “police officer” needs to be

construed functionally to include special police officers under the NDPS

Act, in the context of confessions made, with reference to section 25 of

11

the Evidence Act. He joined Shri Jain in asking for an overruling of Raj

Kumar Karwal (supra) and Kanhaiyalal (supra).

7.Shri S. Nagamuthu, learned Senior Advocate appearing on behalf of the

Appellant in Criminal Appeal No. 1826 of 2013, referred to sections 41

to 43 of the NDPS Act, and emphasised the fact that no powers to

“investigate” any offences are vested in the officers mentioned in these

sections. He then referred to section 36 of the CrPC, and said that the

scheme followed in the NDPS Act could be assimilated to section 36, in

that, police officers superior in rank to an officer in charge of a police

station may exercise the same powers, throughout the local area to

which they are appointed, as may be exercised by such officer within

the limits of his station. He emphasised the fact that section 25 of the

Evidence Act only applies to confessions made against the maker, as

against statements recorded under section 161 of the CrPC, which are

completely barred from being received in evidence under section 162 of

the CrPC, save and except for purposes of contradiction. He argued

that a confessional statement made to a section 41 or section 42 officer

was also hit by section 25 of the Evidence Act. He added that the

special procedure in section 36A of the NDPS Act applies only qua

offences punishable for a term of more than three years, and where

offences under the Act are punishable for terms up to three years, they

are to be tried by a Magistrate under the CrPC. Obviously, officers

12

under section 53 of the NDPS Act would investigate an offence under

the Act that is punishable for a term up to three years, and file a police

report, as no complaint procedure, being the procedure under section

36A of the NDPS Act, would then apply. According to him, this would

show that investigation does culminate in a police report for offences

punishable for a term up to three years, as a result of which section

36A(1)(d) has to be read as providing two methods of approaching a

Special Court – one, by way of a police report, and the other, by way of

a complaint to the Special Court.

8.Shri Uday Gupta, learned Advocate appearing on behalf of the

Appellant in Criminal Appeal No. 344 of 2013, supplemented the

arguments of his predecessors, and stressed the fact that the “enquiry”

under section 67 of the NDPS Act cannot possibly be governed by the

definition of “inquiry” under section 2(g) of the CrPC, as that “inquiry”

relates only to inquiries conducted by a Magistrate or Court. Hence, the

expression “enquiry” under section 67 must be given its ordinary

meaning, which would indicate that it is only a preliminary fact-finding

enquiry that is referred to. He relied strongly on the Directorate of Law

Enforcement Handbook, in which the Directorate made it clear that

when statements are recorded under section 67 of the NDPS Act by the

police, these would amount to statements under section 161 of the

CrPC. He contended that if this is so, it would be extremely anomalous

13

to have statements recorded under section 67 by officers other than the

police – mentioned under sections 41 and 42 of the NDPS Act, which

are not statements made under section 161 of the CrPC – being

admissible in evidence, on which a conviction of an accused can then

be based.

9.Shri Gupta was followed by Shri Sanjay Jain, learned Advocate

appearing on behalf of the Appellant in Criminal Appeal No. 1750 of

2009, who supplemented the arguments of his predecessors by

referring to section 53A, and notifications made under section 53, of the

NDPS Act. He reiterated that officers under section 42 and officers

under section 53 of the NDPS Act perform different functions, and that a

section 53 officer, being empowered to “investigate”, most certainly has

the power to file a police report before the Special Court.

10.Shri Aman Lekhi, learned Additional Solicitor General, appearing on

behalf of the Union of India, took us through the NDPS Act, and said,

that read as a whole, it is a balanced statute which protected both the

investigation of crime, as well as the citizen, in that several safeguards

were contained therein. He was at pains to point out that it was not his

case that a confession recorded under section 67 of the NDPS Act,

without more, would be sufficient to convict a person accused of an

offence under the Act. According to him, this could only be done if

section 24 of the Evidence Act was met, and the Court was satisfied

that the confession so recorded was both voluntary and truthful. In any

14

case, he asserted that the safeguards that have been pointed out in

D.K. Basu v. Union of India (1997) 1 SCC 416 at 435, 436, have now

largely been incorporated in Chapter V of the CrPC, which safeguards

would also operate qua confessions recorded under section 67 of the

NDPS Act. According to him, section 67 on its plain language does not

refer to the “information” spoken of in section 42, as it uses the

expression “require” any person to produce or deliver a document, as

opposed to information “called for” from such persons. He also argued,

based on judgments of this Court, that confessions, if properly

recorded, are the best form of evidence, as these are facts known to the

accused, about which he then voluntarily deposes. He also argued that

section 190 of the CrPC is not completely displaced by section 36A(1)

(d) of the NDPS Act, in that the requirement of the filing of a complaint

and/or a police report contained in section 190 continues to apply, in

support of the decision in Raj Kumar Karwal (supra). He then referred

in detail to Badku Joti Savant (supra), and stated that this judgment

was not considered in the reference order, and that finally, the only test

that is laid down by several Constitution Bench judgments to determine

whether a person is or is not a “police officer” is whether such person is

given the right to file a report under section 173 of the CrPC. He made it

clear that section 53 of the NDPS Act did not deem the officers named

therein to be police officers – they were only given certain powers of

15

investigation, which did not ultimately lead to filing of a charge-sheet

under section 173 of the CrPC. What was clear was that only a

“complaint” could be filed by such officers under section 36A(1)(d) of the

NDPS Act – the police report being only filed by the police force as

constituted under the Police Act, 1861. He disagreed vehemently with

the submission of Shri Jain that the “complaint” under section 36A(1)(d)

would refer only to the complaint under section 59(3) of the NDPS Act,

and referred to section 2(xxix) of the NDPS Act to refer to the definition

of “complaint” under section 2(d) of the CrPC, which is used in the

same sense as in the CrPC. He then pointed out several provisions in

the NDPS Act, where the word “police” or “police officer” is used in

contrast to the other persons or officers who are part of the narcotics

and other setups. According to him, in any case, section 53A makes an

inroad into section 25 of the Evidence Act. Equally, according to him,

the majority judgment in Raja Ram Jaiswal (supra) is per incuriam,

inasmuch as it does not consider several provisions of the CrPC, and

therefore, arrives at the wrong test to determine as to who can be said

to be a “police officer” within the meaning of section 25 of the Evidence

Act. In any case, he argued that the officers mentioned in sections 41

and 42 of the NDPS Act cannot be tarnished with the same brush as the

regular police, as there is nothing to show that these officers use third-

degree measures to extort confessions. He then referred to the

16

language of section 67 of the NDPS Act, in which, according to him, the

expression “enquiry” is nothing but an investigation, and the expression

“examine” is the same expression used in section 161 of the CrPC,

which therefore should be accorded evidentiary value, as no safeguards

as provided under section 162 of the CrPC are mentioned qua

statements made under section 67 of the NDPS Act. He also argued

that investigation begins from the stage of collection of material under

section 67, and for this relied strongly upon the recent Constitution

Bench judgment in Mukesh Singh (supra). According to him, therefore,

the reference order itself being flawed, there ought to have been no

reference at all, and that the judgments in Raj Kumar Karwal (supra)

and Kanhaiyalal (supra) do not need reconsideration. Later judgments

such as Noor Aga (supra) ought to be overruled by us, inasmuch as

they are contrary to several Constitution Bench judgments of this Court.

11.Shri Saurabh Mishra, learned Additional Advocate General appearing

on behalf of the State of Madhya Pradesh in SLP (Crl.) 1202 of 2017,

largely reiterated the submissions of learned ASG, adding that when

section 67 of the NDPS Act is used to record the confession of an

accused, section 164 of the CrPC will not apply, but only section 24 of

the Evidence Act makes such confessions relevant, if the conditions laid

down in the section apply. He also reiterated that a statement recorded

under section 67 of the NDPS Act cannot be assimilated to a statement

17

under section 161 of the CrPC, for the reasons outlined by the learned

ASG.

12.Shri Aniruddha Mayee, learned counsel appearing for the State of

Gujarat in Criminal Appeal No. 2214 of 2009; 344 of 2013; and 1750 of

2009, adopted the submissions of Shri Aman Lekhi, learned ASG.

13.Having heard wide-ranging arguments of counsel on both sides, it is

first necessary to give a Constitutional backdrop to the points that arise

in this case.

FUNDAMENTAL RIGHTS AND THE NDPS ACT

14.The first most important constitutional protection provided in the

fundamental rights chapter so far as these cases are concerned is

provided by Article 20(3), which is the well-known right against self-

incrimination. Article 20(3) reads as follows:

“(3) No person accused of any offence shall be compelled

to be a witness against himself.”

15.In an early judgment of this Court, M.P. Sharma and Ors. v. Satish

Chandra 1954 SCR 1077, an eight-Judge Bench of this Court set out

Article 20(3), and then went into the historical origin of this Article in

English law. In an important passage, the Court held:

“In view of the above background, there is no inherent

reason to construe the ambit of this fundamental right as

comprising a very wide range. Nor would it be legitimate

to confine it to the barely literal meaning of the words

used, since it is a recognised doctrine that when

appropriate a constitutional provision has to be liberally

construed, so as to advance the intendment thereof and

18

to prevent its circumvention. Analysing the terms in which

this right has been declared in our Constitution, it may be

said to consist of the following components. (1) It is a right

pertaining to a person “accused of an offence”; (2) It is a

protection against “compulsion to be a witness”; and (3) It

is a protection against such compulsion resulting in his

giving evidence “against himself”.”

(at page 1086)

xxx xxx xxx

Broadly stated the guarantee in Article 20(3) is against

“testimonial compulsion”. It is suggested that this is

confined to the oral evidence of a person standing his trial

for an offence when called to the witness-stand. We can

see no reason to confine the content of the constitutional

guarantee to this barely literal import. So to limit it would

be to rob the guarantee of its substantial purpose and to

miss the substance for the sound as stated in certain

American decisions. The phrase used in Article 20(3) is

“to be a witness”. A person can “be a witness” not merely

by giving oral evidence but also by producing documents

or making intelligible gestures as in the case of a dumb

witness (See Section 119 of the Evidence Act) or the like.

“To be a witness” is nothing more than “to furnish

evidence” and such evidence can be furnished through

the lips or by production of a thing or of a document or in

other modes. So far as production of documents is

concerned, no doubt Section 139 of the Evidence Act

says that a person producing a document on summons is

not a witness. But that section is meant to regulate the

right of cross-examination. It is not a guide to the

connotation of the word “witness”, which must be

understood in its natural sense i.e. as referring to a

person who furnishes evidence. Indeed, every positive

volitional act, which furnishes evidence is testimony, and

testimonial compulsion connotes coercion which procures

the positive volitional evidentiary acts of the person, as

opposed to the negative attitude of silence or submission

on his part. Nor is there any reason to think that the

protection in respect of the evidence so procured is

confined to what transpires at the trial in the court room.

The phrase used in Article 20(3) is “to be a witness” and

not to “appear as a witness”: It follows that the protection

19

afforded to an accused in so far as it is related, to the

phrase “to be a witness” is not merely in respect of

testimonial compulsion in the court room but may well

extend to compelled testimony previously obtained from

him. It is available therefore to a person against whom a

formal accusation relating to the commission of an offence

has been levelled which in the normal course may result

in prosecution. Whether it is available to other persons in

other situations does not call for decision in this case.

Considered in this light, the guarantee under Article 20(3)

would be available in the present cases to these

petitioners against whom a first information report has

been recorded as accused therein. It would extend to any

compulsory process for production of evidentiary

documents which are reasonably likely to support a

prosecution against them.

(at pages 1087-1088)

16.The Court then went on to state that there was no “fundamental right to

privacy” under the Indian Constitution, like the Fourth Amendment to the

US Constitution, about which more shall be said a little later. What is

important, however, is the fact that even in this early judgment, a mere

literal reading was not given to Article 20(3). The Court recognised that

a person can be said to be a witness not merely by giving oral

evidence, but also by producing documents – evidence being furnished

through the lips of a person or by production of a thing or of a document

or in other modes. It is important to stress that the protection was

afforded to a person formally accused of an offence on the basis of a

statement that may be compulsorily taken from him even before

evidence is given in a court.

20

17.An eleven-Judge Bench was then constituted in State of Bombay v.

Kathi Kalu Oghad and Ors. (1963) 2 SCR 10, as certain doubts were

raised on some of the propositions contained in the eight-Judge Bench

decision of M.P. Sharma (supra). In this case, there were three appeals

before the Court, one of which involved proof of handwritten evidence,

another of which involved comparison of handwriting under section 73

of the Evidence Act, and the third of which involved section 27 of the

Evidence Act. After hearing arguments on both sides, the Court first

concluded that M.P. Sharma (supra) was correctly decided insofar as it

stated that the guarantee under Article 20(3) extended to testimony by a

witness given in or out of courts, which included statements which

incriminated the maker. However, the Court went on to state that

“furnishing evidence” would exclude thumb-impressions or writing

specimens, for the reason that the taking of impressions of parts of the

body often becomes necessary for the investigation of a crime (see

page 29). Incriminating information must therefore include statements

based on personal knowledge. The Court then went on to consider

whether section 27 of the Evidence Act would fall foul of Article 20(3),

having already been upheld when a constitutional challenge under

Article 14 had been repelled by the Court in State of U.P. v. Deoman

Upadhyaya (1961) 1 SCR 14. The Court held that if self-incriminatory

information is given under compulsion, then the provisions of section 27

21

of the Evidence Act would not apply so as to allow the prosecution to

place reliance on the object recovered as a result of the statement

made (see pages 33-34). In the result, the Court held:

“(1) An accused person cannot be said to have been

compelled to be a witness against himself simply because

he made a statement while in police custody, without

anything more. In other words, the mere fact of being in

police custody at the time when the statement in question

was made would not, by itself, as a proposition of law,

lend itself to the inference that the accused was

compelled to make the statement, though that fact, in

conjunction with other circumstances disclosed in

evidence in a particular case, would be a relevant

consideration in an enquiry whether or not the accused

person had been compelled to make the impugned

statement.

(2) The mere questioning of an accused person by a

police officer, resulting in a voluntary statement, which

may ultimately turn out to be incriminatory, is not

“compulsion”.

(3) “To be a witness” is not equivalent to “furnishing

evidence” in its widest significance; that is to say, as

including not merely making of oral or written statements

but also production of documents or giving materials

which may be relevant at a trial to determine the guilt or

innocence of the accused.

(4) Giving thumb impressions or impressions of foot or

palm or fingers or specimen writings or showing parts of

the body by way of identification are not included in the

expression “to be a witness”.

(5) “To be a witness” means imparting knowledge in

respect of relevant facts by an oral statement or a

statement in writing, made or given in court or otherwise.

(6) “To be a witness” in its ordinary grammatical sense

means giving oral testimony in court. Case law has gone

22

beyond this strict literal interpretation of the expression

which may now bear a wider meaning, namely, bearing

testimony in court or out of court by a person accused of

an offence, orally or in writing.

(7) To bring the statement in question within the

prohibition of Article 20(3), the person accused must have

stood in the character of an accused person at the time he

made the statement. It is not enough that he should

become an accused, any time after the statement has

been made.”

(at pages 36-37)

18.It is important to note that conclusions (1) and (2) were made in the

context of repelling a challenge to section 27 of the Evidence Act. M.P.

Sharma (supra), so far as it held that a person is accused the moment

there is a formal accusation against him, by way of an FIR or otherwise,

and that statements made by such person outside court, whether oral or

on personal knowledge of documents produced, is protected by Article

20(3), remained untouched.

19.It is also important to note that in Balkishan A. Devidayal (supra),

these judgments were referred to, and the Court then concluded:

“70. To sum up, only a person against whom a formal

accusation of the commission of an offence has been

made can be a person “accused of an offence” within the

meaning of Article 20(3). Such formal accusation may be

specifically made against him in an FIR or a formal

complaint or any other formal document or notice served

on that person, which ordinarily results in his prosecution

in court. In the instant case no such formal accusation had

been made against the appellant when his statement(s) in

question were recorded by the RPF officer.”

23

20.We now come to the judgment of this Court in Nandini Satpathy v. P.L.

Dani (1978) 2 SCC 424. This case referred to the inter-play between

Article 20(3) and section 161 of the CrPC as follows:

“21. Back to the constitutional quintessence invigorating

the ban on self-incrimination. The area covered by Article

20(3) and Section 161(2) is substantially the same. So

much so, we are inclined to the view, terminological

expansion apart, that Section 161(2) of the CrPC is a

parliamentary gloss on the constitutional clause. The

learned Advocate-General argued that Article 20(3), unlike

Section 161(1), did not operate at the anterior stages

before the case came to court and the accused's

incriminating utterance, previously recorded, was

attempted to be introduced. He relied on some passages

in American decisions but, in our understanding, those

passages do not so circumscribe and, on the other hand,

the landmark Miranda [Miranda v. Arizona, 384 US 436

(1966)] ruling did extend the embargo to police

investigation also. Moreover, Article 20(3), which is our

provision, warrants no such truncation. Such a narrow

meaning may emasculate a necessary protection. There

are only two primary queries involved in this clause that

seals the lips into permissible silence: (i) Is the person

called upon to testify “accused of any offence”? (ii) Is he

being compelled to be witness against himself? A

constitutional provision receives its full semantic range

and so it follows that a wider connotation must be

imparted to the expressions “accused of any offence” and

“to be witness against himself”. The learned Advocate-

General, influenced by American decisions rightly agreed

that in expression Section 161(2) of the Code might cover

not merely accusations already registered in police

stations but those which are likely to be the basis for

exposing a person to a criminal charge. Indeed, this wider

construction, if applicable to Article 20(3), approximates

the constitutional clause to the explicit statement of the

prohibition in Section 161(2). This latter provision

meaningfully uses the expression “expose himself to a

criminal charge”. Obviously, these words mean, not only

cases where the person is already exposed to a criminal

24

charge but also instances which will imminently expose

him to criminal charges. In Article 20(3), the expression

“accused of any offence” must mean formally accused in

praesenti not in futuro — not even imminently as

decisions now stand. The expression “to be witness

against himself” means more than the court process. Any

giving of evidence, any furnishing of information, if likely to

have an incriminating impact, answers the description of

being witness against oneself. Not being limited to the

forensic stage by express words in Article 20(3), we have

to construe the expression to apply to every stage where

furnishing of information and collection of materials takes

place. That is to say, even the investigation at the police

level is embraced by Article 20(3). This is precisely what

Section 161(2) means. That sub-section relates to oral

examination by police officers and grants immunity at that

stage. Briefly, the Constitution and the Code are co-

terminus in the protective area. While the Code may be

changed, the Constitution is more enduring. Therefore, we

have to base our conclusion not merely upon Section

161(2) but on the more fundamental protection, although

equal in ambit, contained in Article 20(3).

xxx xxx xxx

57. We hold that Section 161 enables the police to

examine the accused during investigation. The prohibitive

sweep of Article 20(3) goes back to the stage of police

interrogation — not, as contended, commencing in court

only. In our judgment, the provisions of Article 20(3) and

Section 161(1) substantially cover the same area, so far

as police investigations are concerned. The ban on self-

accusation and the right to silence, while one investigation

or trial is under way, goes beyond that case and protects

the accused in regard to other offences pending or

imminent, which may deter him from voluntary disclosure

of criminatory matter. We are disposed to read “compelled

testimony” as evidence procured not merely by physical

threats or violence but by psychic torture, atmospheric

pressure, environmental coercion, tiring interrogative

prolixity, overbearing and intimidatory methods and the

like — not legal penalty for violation. So, the legal perils

following upon refusal to answer, or answer truthfully,

25

cannot be regarded as compulsion within the meaning of

Article 20(3). The prospect of prosecution may lead to

legal tension in the exercise of a constitutional right, but

then, a stance of silence is running a calculated risk. On

the other hand, if there is any mode of pressure, subtle or

crude, mental or physical, direct or indirect, but sufficiently

substantial, applied by the policeman for obtaining

information from an accused strongly suggestive of guilt, it

becomes “compelled testimony”, violative of Article 20(3).

58. A police officer is clearly a person in authority.

Insistence on answering is a form of pressure especially

in the atmosphere of the police station unless certain

safeguards erasing duress are adhered to. Frequent

threats of prosecution if there is failure to answer may

take on the complexion of undue pressure violating Article

20(3). Legal penalty may by itself not amount to duress

but the manner of mentioning it to the victim of

interrogation may introduce an element of tension and

tone of command perilously hovering near compulsion.

59. We have explained elaborately and summed up, in

substance, what is self-incrimination or tendency to

expose oneself to a criminal charge. It is less than

“relevant” and more than “confessional”. Irrelevance is

impermissible but relevance is licit but when relevant

questions are loaded with guilty inference in the event of

an answer being supplied, the tendency to incriminate

springs into existence. We hold further that the accused

person cannot be forced to answer questions merely

because the answers thereto are not implicative when

viewed in isolation and confined to that particular case. He

is entitled to keep his mouth shut if the answer sought has

a reasonable prospect of exposing him to guilt in some

other accusation actual or imminent, even though the

investigation under way is not with reference to that. We

have already explained that in determining the

incriminatory character of an answer the accused is

entitled to consider — and the Court while adjudging will

take note of — the setting, the totality of circumstances,

the equation, personal and social, which have a bearing

on making an answer substantially innocent but in effect

guilty in import. However, fanciful claims, unreasonable

26

apprehensions and vague possibilities cannot be the

hiding ground for an accused person. He is bound to

answer where there is no clear tendency to criminate.”

21.In Kartar Singh (supra), the majority judgment referred to Article 20(3)

in the following terms:

“205. In our Constitution as well as procedural law and

law of Evidence, there are certain guarantees protecting

the right and liberty of a person in a criminal proceeding

and safeguards in making use of any statement made by

him. Article 20(3) of the Constitution declares that “No

person accused of any offence shall be compelled to be a

witness against himself”.

206. Article 20(3) of our Constitution embodies the

principle of protection against compulsion of self-

incrimination which is one of the fundamental canons of

the British System of Criminal Jurisprudence and which

has been adopted by the American System and

incorporated in the Federal Acts. The Fifth Amendment of

the Constitution of the United States of America provides,

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising … nor

shall be compelled in any criminal case to be a witness

against himself…”.

207. The above principle is recognised to a substantial

extent in the criminal administration of justice in our

country by incorporating various statutory provisions. One

of the components of the guarantee contained in Article

20(3) of the Constitution is that it is a protection against

compulsion resulting in the accused of any offence giving

evidence against himself. There are a number of

outstanding decisions of this Court in explaining the

intendment of Article 20(3). We feel that it would suffice if

mere reference is made to some of the judgments, those

being: (1) M.P. Sharma v. Satish Chandra, District

Magistrate, Delhi [1954 SCR 1077] , (2) Raja Narayanlal

Bansilal v. Maneck Phiroz Mistry [(1961) 1 SCR 417],

(3) State of Bombay v. Kathi Kalu Oghad [(1962) 3 SCR

27

10], and (4) Nandini Satpathy v. P.L. Dani [(1978) 2 SCC

424].

208. Article 22(1) and (2) confer certain rights upon a

person who has been arrested. Coming to the provisions

of Code of Criminal Procedure, Section 161 empowers a

police officer making an investigation to examine orally

any person supposed to be acquainted with the facts and

circumstances of the case and to reduce into writing any

statement made to him in the course of such examination.

Section 162 which speaks of the use of the statement so

recorded, states that no statement recorded by a police

officer, if reduced into writing, be signed by the person

making it and that the statement shall not be used for any

purpose save as provided in the Code and the provisions

of the Evidence Act. The ban imposed by Section 162

applies to all the statements whether confessional or

otherwise, made to a police officer by any person whether

accused or not during the course of the investigation

under Chapter XII of the Code. But the statement given by

an accused can be used in the manner provided by

Section 145 of the Evidence Act in case the accused

examines himself as a witness for the defence by availing

Section 315(1) of the Code corresponding to Section 342-

A of the old Code and to give evidence on oath in disproof

of the charges made against him or any person charged

together with him at the same trial.

209. There is a clear embargo in making use of this

statement of an accused given to a police officer under

Section 25 of the Evidence Act, according to which, no

confession made to a police officer shall be proved as

against a person accused of any offence and under

Section 26 according to which no confession made by any

person whilst he is in custody of a police officer, unless it

is made in the immediate presence of a Magistrate, shall

be proved as against such person. The only exception is

given under Section 27 which serves as a proviso to

Section 26. Section 27 contemplates that only so much of

information whether amounts to confession or not, as

relates distinctly to the fact thereby discovered, in

consequence of that information received from a person

28

accused of any offence while in custody of the police can

be proved as against the accused.

210. In the context of the matter under discussion, two

more provisions also may be referred to — namely

Sections 24 and 30 of the Evidence Act and Section 164

of the Code.

211. Section 24 of the Evidence Act makes a confession,

caused to be made before any authority by an accused by

any inducement, threat or promise, irrelevant in a criminal

proceeding. Section 30 of the Evidence Act is to the effect

that if a confession made by one or more persons,

affecting himself and some others jointly tried for the

same offence is proved, the court may take into

consideration such confession as against such other

persons as well as the maker of the confession. The

explanation to the section reads that “offence” as used in

this section includes the abetment of, or attempt to

commit, the offence.

212. Section 164 of the Code speaks of recording of

confessions and statements by Magistrates specified in

that section by complying with the legal formalities and

observing the statutory conditions including the

appendage of a Certificate by the Magistrate recording the

confession as contemplated under sub-sections (2) to (6)

thereof.

213. Though in the old Code, there was a specific

embargo on a police officer recording any statement or

confession made to him in the course of an investigation

embodied in the main sub-section (1) of Section 164 itself,

in the present Code the legal bar is now brought by a

separate proviso to sub-section (1) of Section 164 which

reads:

“Provided that no confession shall be recorded by a police

officer on whom any power of a Magistrate has been

conferred under any law for the time being in force.”

29

This is a new provision but conveys the same meaning as

embodied in the main sub-section (1) of Section 164 of

the old Code.

214. Thus, an accused or a person accused of any

offence is protected by the constitutional provisions as

well as the statutory provisions to the extent that no self-

incriminating statement made by an accused to the police

officer while he is in custody, could be used against such

maker. The submission of the Additional Solicitor General

that while a confession by an accused before a specified

officer either under the Railway Protection Force Act or

Railway Property (Unlawful Possession) Act or Customs

Act or Foreign Exchange Regulation Act is made

admissible, the special procedure prescribed under this

Act making a confession of a person indicted under the

TADA Act given to a police officer admissible cannot be

questioned, is misnomer because all the officials

empowered to record statements under those special Acts

are not police officers as per the judicial pronouncements

of this Court as well the High Courts which principle holds

the field till date. See (1) State of U.P. v. Durga

Prasad [(1975) 3 SCC 210] , (2) Balkishan A.

Devidayal v. State of Maharashtra [(1980) 4 SCC 600] ,

(3) Ramesh Chandra Mehta v. State of W.B. [Ramesh

Chandra Mehta v. State of W.B., (1969) 2 SCR 46],

(4) Poolpandi v. Superintendent, Central Excise [(1992) 3

SCC 259], (5) Directorate of Enforcement v. Deepak

Mahajan [(1994) 3 SCC 440], and (6) Ekambaram v. State

of T.N. [1972 MLW (Cri) 261] We feel that it is not

necessary to cite any more decisions and swell this

judgment.”

22.Ramaswamy, J. concurring in part, but dissenting on the constitutional

validity of sections 9(7) and 15 of the TADA, also referred to Article

20(3) as follows:

“377. Custodial interrogation exposes the suspect to the

risk of abuse of his person or dignity as well as distortion

or manipulation of his self-incrimination in the crime. No

one should be subjected to physical violence of the

30

person as well as to torture. Infringement thereof

undermines the peoples' faith in the efficacy of criminal

justice system. Interrogation in police lock-up are often

done under conditions of pressure and tension and the

suspect could be exposed to great strain even if he is

innocent, while the culprit in custody to hide or suppress

may be doubly susceptible to confusion and manipulation.

A delicate balance has, therefore, to be maintained to

protect the innocent from conviction and the need of the

society to see the offender punished. Equally everyone

has right against self-incrimination and a right to be silent

under Article 20(3) which implies his freedom from police

or anybody else. But when the police interrogates a

suspect, they abuse their authority having unbridled

opportunity to exploit his moral position and authority

inducing the captive to confess against his better

judgment. The very fact that the person in authority puts

the questions and exerts pressure on the captive to

comply (sic). Silence on the part of the frightened captive

seems to his ears to call for vengeance and induces a

belief that confession holds out a chance to avoid torture

or to get bail or a promise of lesser punishment. The

resourceful investigator adopts all successful tactics to

elicit confession as is discussed below.

xxx xxx xxx

396. In the State of Bombay v. Kathi Kalu Oghad [(1962) 3

SCR 10] a Bench of 11 Judges, per majority, interpreting

Article 20(3) held on “testimonial compulsion” that, “[w]e

can see no reason to confine the content of the

constitutional guarantee to this barely literal import. So to

limit it would be to rob the guarantee of its substantial

purpose and to miss the substance for the sound as

stated in certain American decisions.” Indeed every

positive act which furnishes evidence is testimony and

testimonial compulsion connotes coercion which procures

positive oral evidence. The acts of the person, of course,

is neither negative attitude of silence or submission on his

part, nor is there any reason to think that the protection in

respect of the evidence procured is confined to what

transpires at the trial in the court room. The phrase used

in Article 20(3) is to be a witness and not to appear as a

31

witness. It follows that the protection accorded to an

accused insofar as it is related to the phrase “to be a

witness” is not merely in respect of the testimonial

compulsion in the court room but may well extend to

compelled testimony previously obtained from him. The

guarantee was, therefore, held to include not only oral

testimony given in a court or out of court, but also

statements in writing which incriminated the maker when

figuring as accused person. In Nandini Satpathy v. P.L.

Dani it was further held that compelled testimony must be

read as evidence procured not merely by physical threat

or violence but by psychic torture, atmospheric pressure,

environmental coercion, tiring interrogative prolixity,

overbearing and intimidatory methods and the like — not

legal penalty for violation.”

23.Sahai, J. in a separate opinion, concurring in part, but dissenting on the

constitutional validity of section 15, referred to Article 20(3) as follows:

“456. A confession is an admission of guilt. The person

making it states something against himself, therefore it

should be made in surroundings which are free from

suspicion. Otherwise it violates the constitutional

guarantee under Article 20(3) that no person accused of

an offence shall be compelled to be a witness against

himself. The word ‘offence’ used in the article should be

given its ordinary meaning. It applies as much to an

offence committed under TADA as under any other Act.

The word, ‘compelled’ ordinarily means ‘by force’. This

may take place positively and negatively. When one

forces one to act in a manner desired by him it is

compelling him to do that thing. Same may take place

when one is prevented from doing a particular thing

unless he agrees to do as desired. In either case it is

compulsion. A confession made by an accused or

obtained by him under coercion suffers from infirmity

unless it is made freely and voluntarily. No civilised

democratic country has accepted confession made by an

accused before a police officer as voluntary and above

suspicion, therefore, admissible in evidence. One of the

established rule or norms accepted everywhere is that

custodial confession is presumed to be tainted. The mere

32

fact that the Legislature was competent to make the law,

as the offence under TADA is one which did not fall in any

State entry, did not mean that the Legislature was

empowered to curtail or erode a person of his

fundamental rights. Making a provision which has the

effect of forcing a person to admit his guilt amounts to

denial of the liberty. The class of offences dealt by TADA

may be different than other offences but the offender

under TADA is as much entitled to protection of Articles 20

and 21 as any other. The difference in nature of offence or

the legislative competence to enact a law did not affect

the fundamental rights guaranteed by Chapter III. If the

construction as suggested by the learned Additional

Solicitor General is accepted it shall result in taking the

law back once again to the days of Gopalan [A.K.

Gopalan v. State of Madras, AIR 1950 SC 27] . Section 15

cannot be held to be valid merely because it is as a result

of law made by a body which has been found entitled to

make the law. The law must still be fair and just as held by

this Court. A law which entitles a police officer to record

confession and makes it admissible is thus violative of

both Articles 20(3) and 21 of the Constitution.”

24.A recent judgment in Selvi v. State of Karnataka (2010) 7 SCC 263

dealt with the constitutional validity of narco-analysis tests as follows:

“179. We now return to the operative question of whether

the results obtained through polygraph examination and

the BEAP test should be treated as testimonial responses.

Ordinarily evidence is classified into three broad

categories, namely, oral testimony, documents and

material evidence. The protective scope of Article 20(3)

read with Section 161(2) CrPC guards against the

compulsory extraction of oral testimony, even at the stage

of investigation. With respect to the production of

documents, the applicability of Article 20(3) is decided by

the trial Judge but parties are obliged to produce

documents in the first place. However, the compulsory

extraction of material (or physical) evidence lies outside

the protective scope of Article 20(3). Furthermore, even

testimony in oral or written form can be required under

compulsion if it is to be used for the purpose of

33

identification or comparison with materials and information

that is already in the possession of investigators.

180. We have already stated that the narcoanalysis test

includes substantial reliance on verbal statements by the

test subject and hence its involuntary administration

offends the “right against self-incrimination”. The crucial

test laid down in Kathi Kalu Oghad is that of

“imparting knowledge in respect of relevant facts, by

means of oral statements or statements in writing by a

person who has personal knowledge of the facts to be

communicated to a court or to a person holding an

enquiry or investigation” (ibid. at SCR p. 30.).

The difficulty arises since the majority opinion in that case

appears to confine the understanding of “personal

testimony” to the conveyance of personal knowledge

through oral statements or statements in writing. The

results obtained from polygraph examination or a BEAP

test are not in the nature of oral or written statements.

Instead, inferences are drawn from the measurement of

physiological responses recorded during the performance

of these tests. It could also be argued that tests such as

polygraph examination and the BEAP test do not involve a

“positive volitional act” on part of the test subject and

hence their results should not be treated as testimony.

However, this does not entail that the results of these two

tests should be likened to physical evidence and thereby

excluded from the protective scope of Article 20(3).

181. We must refer back to the substance of the decision

in Kathi Kalu Oghad which equated a testimonial act with

the imparting of knowledge by a person who has personal

knowledge of the facts that are in issue. It has been

recognised in other decisions that such personal

knowledge about relevant facts can also be

communicated through means other than oral or written

statements. For example in M.P. Sharma case, it was

noted that “…evidence can be furnished through the lips

or by production of a thing or of a document or in other

modes.” (ibid. at SCR p. 1087) Furthermore, common

sense dictates that certain communicative gestures such

34

as pointing or nodding can also convey personal

knowledge about a relevant fact, without offering a verbal

response. It is quite foreseeable that such a

communicative gesture may by itself expose a person to

“criminal charges or penalties” or furnish a link in the

chain of evidence needed for prosecution.

182. We must also highlight that there is nothing to show

that the learned Judges in Kathi Kalu Oghad had

contemplated the impugned techniques while discussing

the scope of the phrase “to be a witness” for the purpose

of Article 20(3). At that time, the transmission of

knowledge through means other than speech or writing

was not something that could have been easily conceived

of. Techniques such as polygraph examination were fairly

obscure and were the subject of experimentation in some

western nations while the BEAP technique was developed

several years later. Just as the interpretation of statutes

has to be often re-examined in light of scientific

advancements, we should also be willing to re-examine

judicial observations with a progressive lens.

183. An explicit reference to the lie detector tests was of

course made by the US Supreme Court

in Schmerber [384 US 757 (1965)] decision, wherein

Brennan, J. had observed at US p. 764: (L Ed p. 916)

“…To compel a person to submit to testing in which an

effort will be made to determine his guilt or innocence on

the basis of physiological responses, whether willed or

not, is to evoke the spirit and history of the Fifth

Amendment.”

184. Even though the actual process of undergoing a

polygraph examination or a BEAP test is not the same as

that of making an oral or written statement, the

consequences are similar. By making inferences from the

results of these tests, the examiner is able to derive

knowledge from the subject's mind which otherwise would

not have become available to the investigators. These two

tests are different from medical examination and the

analysis of bodily substances such as blood, semen and

hair samples, since the test subject's physiological

35

responses are directly correlated to mental faculties.

Through lie detection or gauging a subject's familiarity

with the stimuli, personal knowledge is conveyed in

respect of a relevant fact. It is also significant that unlike

the case of documents, the investigators cannot possibly

have any prior knowledge of the test subject's thoughts

and memories, either in the actual or constructive sense.

Therefore, even if a highly strained analogy were to be

made between the results obtained from the impugned

tests and the production of documents, the weight of

precedents leans towards restrictions on the extraction of

“personal knowledge” through such means.

185. During the administration of a polygraph test or a

BEAP test, the subject makes a mental effort which is

accompanied by certain physiological responses. The

measurement of these responses then becomes the basis

of the transmission of knowledge to the investigators. This

knowledge may aid an ongoing investigation or lead to the

discovery of fresh evidence which could then be used to

prosecute the test subject. In any case, the compulsory

administration of the impugned tests impedes the

subject's right to choose between remaining silent and

offering substantive information. The requirement of a

“positive volitional act” becomes irrelevant since the

subject is compelled to convey personal knowledge

irrespective of his/her own volition.

xxx xxx xxx

189. In light of the preceding discussion, we are of the

view that the results obtained from tests such as

polygraph examination and the BEAP test should also be

treated as “personal testimony”, since they are a means

for “imparting personal knowledge about relevant facts”.

Hence, our conclusion is that the results obtained through

the involuntary administration of either of the impugned

tests (i.e. the narcoanalysis technique, polygraph

examination and the BEAP test) come within the scope of

“testimonial compulsion”, thereby attracting the protective

shield of Article 20(3).

xxx xxx xxx

36

262. In our considered opinion, the compulsory

administration of the impugned techniques violates the

“right against self-incrimination”. This is because the

underlying rationale of the said right is to ensure the

reliability as well as voluntariness of statements that are

admitted as evidence. This Court has recognised that the

protective scope of Article 20(3) extends to the

investigative stage in criminal cases and when read with

Section 161(2) of the Code of Criminal Procedure, 1973 it

protects accused persons, suspects as well as witnesses

who are examined during an investigation. The test

results cannot be admitted in evidence if they have been

obtained through the use of compulsion. Article 20(3)

protects an individual's choice between speaking and

remaining silent, irrespective of whether the subsequent

testimony proves to be inculpatory or exculpatory. Article

20(3) aims to prevent the forcible “conveyance of personal

knowledge that is relevant to the facts in issue”. The

results obtained from each of the impugned tests bear a

“testimonial” character and they cannot be categorised as

material evidence.

263. We are also of the view that forcing an individual to

undergo any of the impugned techniques violates the

standard of “substantive due process” which is required

for restraining personal liberty. Such a violation will occur

irrespective of whether these techniques are forcibly

administered during the course of an investigation or for

any other purpose since the test results could also expose

a person to adverse consequences of a non-penal nature.

The impugned techniques cannot be read into the

statutory provisions which enable medical examination

during investigation in criminal cases i.e. the Explanation

to Sections 53, 53-A and 54 of the Code of Criminal

Procedure, 1973. Such an expansive interpretation is not

feasible in light of the rule of “ejusdem generis” and the

considerations which govern the interpretation of statutes

in relation to scientific advancements. We have also

elaborated how the compulsory administration of any of

these techniques is an unjustified intrusion into the mental

privacy of an individual. It would also amount to “cruel,

inhuman or degrading treatment” with regard to the

37

language of evolving international human rights norms.

Furthermore, placing reliance on the results gathered from

these techniques comes into conflict with the “right to fair

trial”. Invocations of a compelling public interest cannot

justify the dilution of constitutional rights such as the “right

against self-incrimination”.

264. In light of these conclusions, we hold that no

individual should be forcibly subjected to any of the

techniques in question, whether in the context of

investigation in criminal cases or otherwise. Doing so

would amount to an unwarranted intrusion into personal

liberty. However, we do leave room for the voluntary

administration of the impugned techniques in the context

of criminal justice provided that certain safeguards are in

place. Even when the subject has given consent to

undergo any of these tests, the test results by themselves

cannot be admitted as evidence because the subject does

not exercise conscious control over the responses during

the administration of the test. However, any information or

material that is subsequently discovered with the help of

voluntary administered test results can be admitted in

accordance with Section 27 of the Evidence Act, 1872.”

25.Equally important is the right to privacy which has been recognised by a

number of decisions of this Court, and now firmly grounded in Article 21

of the Constitution of India. In K.S. Puttaswamy (supra), several

judgments were referred to; and M.P. Sharma (supra), where it was

held that no such right was recognised in the Constitution of India, was

overruled. Thus, in the judgment of Chandrachud, J., it was stated:

“26.M.P. Sharma [1954 SCR 1077] was a case where a

law prescribing a search to obtain documents for

investigating into offences was challenged as being

contrary to the guarantee against self-incrimination in

Article 20(3). The Court repelled the argument that a

search for documents compelled a person accused of an

offence to be witness against himself. Unlike a notice to

38

produce documents, which is addressed to a person and

whose compliance would constitute a testimonial act, a

search warrant and a seizure which follows are not

testimonial acts of a person to whom the warrant is

addressed, within the meaning of Article 20(3). The Court

having held this, the controversy in M.P. Sharma would

rest at that. The observations in M.P. Sharma to the effect

that the Constitution makers had not thought it fit to

subject the regulatory power of search and seizure to

constitutional limitations by recognising a fundamental

right to privacy (like the US Fourth Amendment), and that

there was no justification to import it into a “totally different

fundamental right” are at the highest, stray observations.

27. The decision in M.P. Sharma held that in the absence

of a provision like the Fourth Amendment to the US

Constitution, a right to privacy cannot be read into the

Indian Constitution. The decision in M.P. Sharma did not

decide whether a constitutional right to privacy is

protected by other provisions contained in the

fundamental rights including among them, the right to life

and personal liberty under Article 21. Hence the decision

cannot be construed to specifically exclude the protection

of privacy under the framework of protected guarantees

including those in Articles 19 or 21. The absence of an

express constitutional guarantee of privacy still begs the

question whether privacy is an element of liberty and, as

an integral part of human dignity, is comprehended within

the protection of life as well.

xxx xxx xxx

100.M.P. Sharma dealt with a challenge to a search on

the ground that the statutory provision which authorised it,

violated the guarantee against self-incrimination in Article

20(3). In the absence of a specific provision like the

Fourth Amendment to the US Constitution in the Indian

Constitution, the Court answered the challenge by its

ruling that an individual who is subject to a search during

the course of which material is seized does not make a

voluntary testimonial statement of the nature that would

attract Article 20(3). The Court distinguished a compulsory

search from a voluntary statement of disclosure in

39

pursuance of a notice issued by an authority to produce

documents. It was the former category that was held to be

involved in a compulsive search, which the Court held

would not attract the guarantee against self-incrimination.

The judgment, however, proceeded further to hold that in

the absence of the right to privacy having been

enumerated in the Constitution, a provision like the Fourth

Amendment to the US Constitution could not be read into

our own. The observation in regard to the absence of the

right to privacy in our Constitution was strictly speaking,

not necessary for the decision of the Court in M.P.

Sharma and the observation itself is no more than a

passing observation. Moreover, the decision does not

adjudicate upon whether privacy could be a

constitutionally protected right under any other provision

such as Article 21 or under Article 19.

xxx xxx xxx

316. The judgment in M.P. Sharma holds essentially that

in the absence of a provision similar to the Fourth

Amendment to the US Constitution, the right to privacy

cannot be read into the provisions of Article 20(3) of the

Indian Constitution. The judgment does not specifically

adjudicate on whether a right to privacy would arise from

any of the other provisions of the rights guaranteed by

Part III including Article 21 and Article 19. The observation

that privacy is not a right guaranteed by the Indian

Constitution is not reflective of the correct position. M.P.

Sharma is overruled to the extent to which it indicates to

the contrary.”

26. The judgment of Nariman, J. held as follows:

“442. The importance of Semayne case [77 ER 194] is

that it decided that every man's home is his castle and

fortress for his defence against injury and violence, as

well as for his repose. William Pitt, the Elder, put it thus:

“The poorest man may in his cottage bid defiance to all

the force of the Crown. It may be frail—its roof may shake

—the wind may blow through it—the storm may enter, the

rain may enter—but the King of England cannot enter—all

40

his force dare not cross the threshold of the ruined

tenement.”

A century and a half later, pretty much the same thing was

said in Huckle v. Money [Huckle v. Money 95 ER 768] in

which it was held that Magistrates cannot exercise

arbitrary powers which violated the Magna Carta (signed

by King John, conceding certain rights to his barons in

1215), and if they did, exemplary damages must be given

for the same. It was stated that: (ER p. 769)

“… To enter a man's house by virtue of a nameless

warrant, in order to procure evidence, is worse than the

Spanish Inquisition; a law under which no Englishman

would wish to live an hour….”

443. This statement of the law was echoed

in Entick v. Carrington [Entick v. Carrington 95 ER 807] in

which Lord Camden held that an illegal search warrant

was “subversive of all the comforts of society” and the

issuance of such a warrant for the seizure of all of a man's

papers, and not only those alleged to be criminal in

nature, was “contrary to the genius of the law of England”.

A few years later, in Da Costa v. Jones [Da Costa v. Jones

98 ER 1331] , Lord Mansfield upheld the privacy of a third

person when such privacy was the subject-matter of a

wager, which was injurious to the reputation of such third

person. The wager in that case was as to whether a

certain Chevalier D'eon was a cheat and imposter in that

he was actually a woman. Such wager which violated the

privacy of a third person was held to be injurious to the

reputation of the third person for which damages were

awarded to the third person. These early judgments did

much to uphold the inviolability of the person of a citizen.

xxx xxx xxx

456. The first thing that strikes one on reading the

aforesaid passage is that the Court (in M.P. Sharma)

resisted the invitation to read the US Fourth Amendment

into the US Fifth Amendment; in short it refused to read or

import the Fourth Amendment into the Indian equivalent of

that part of the Fifth Amendment which is the same as

41

Article 20(3) of the Constitution of India. Also, the

fundamental right to privacy, stated to be analogous to the

Fourth Amendment, was held to be something which

could not be read into Article 20(3).

457. The second interesting thing to be noted about these

observations is that there is no broad ratio in the said

judgment that a fundamental right to privacy is not

available in Part III of the Constitution. The observation is

confined to Article 20(3). Further, it is clear that the actual

finding in the aforesaid case had to do with the law which

had developed in this Court as well as the US and the UK

on Article 20(3) which, on the facts of the case, was held

not to be violated. Also we must not forget that this was an

early judgment of the Court, delivered in the Gopalan era,

which did not have the benefit of R.C. Cooper or Maneka

Gandhi. Quite apart from this, it is clear that by the time

this judgment was delivered, India was already a

signatory to the Universal Declaration of Human Rights,

Article 12 of which states:

“12. No one shall be subjected to arbitrary interference

with his privacy, family, home or correspondence, nor to

attacks upon his honour and reputation. Everyone has the

right to the protection of the law against such interference

or attacks.”

xxx xxx xxx

468. It will be seen that different smaller Benches of this

Court were not unduly perturbed by the observations

contained in M.P. Sharma as it was an early judgment of

this Court delivered in the Gopalan era which had been

eroded by later judgments dealing with the interrelation

between fundamental rights and the development of the

fundamental right to privacy as being part of the liberty

and dignity of the individual.

469. Therefore, given the fact that this judgment dealt only

with Article 20(3) and not with other fundamental rights;

given the fact that the 1948 Universal Declaration of

Human Rights containing the right to privacy was not

pointed out to the Court; given the fact that it was

42

delivered in an era when fundamental rights had to be

read disjunctively in watertight compartments; and given

the fact that Article 21 as we know it today only sprung

into life in the post Maneka Gandhi era, we are of the view

that this judgment is completely out of harm's way insofar

as the grounding of the right to privacy in the fundamental

rights chapter is concerned.

xxx xxx xxx

472. The majority judgment in Kharak Singh [Kharak

Singh v. State of U.P., (1964) 1 SCR 332] then went on to

refer to the Preamble to the Constitution, and stated that

Article 21 contained the cherished human value of dignity

of the individual as the means of ensuring his full

development and evolution. A passage was then quoted

from Wolf v. Colorado [Wolf v. Colorado 338 US 25

(1949)] to the effect that the security of one's

privacy against arbitrary intrusion by the police is basic to

a free society. The Court then went on to quote the US

Fourth Amendment which guarantees the rights of the

people to be secured in their persons, houses, papers and

effects against unreasonable searches and seizures.

Though the Indian Constitution did not expressly confer a

like guarantee, the majority held that nonetheless an

unauthorised intrusion into a person's home would violate

the English Common Law maxim which asserts that every

man's house is his castle. In this view of Article 21,

Regulation 236(b) was struck down.

xxx xxx xxx

475. If the passage in the judgment dealing with

domiciliary visits at night and striking it down is contrasted

with the later passage upholding the other clauses of

Regulation 236 extracted above, it becomes clear that it

cannot be said with any degree of clarity that the majority

judgment upholds the right to privacy as being contained

in the fundamental rights chapter or otherwise. As the

majority judgment contradicts itself on this vital aspect, it

would be correct to say that it cannot be given much value

as a binding precedent. In any case, we are of the view

43

that the majority judgment is good law when it speaks of

Article 21 being designed to assure the dignity of the

individual as a most cherished human value which

ensures the means of full development and evolution of a

human being. The majority judgment is also correct in

pointing out that Article 21 interdicts unauthorised

intrusion into a person's home. Where the majority

judgment goes wrong is in holding that fundamental rights

are in watertight compartments and in holding that the

right to privacy is not a guaranteed right under our

Constitution. It can be seen, therefore, that the majority

judgment is like the proverbial curate's egg—good only in

parts. Strangely enough when the good parts alone are

seen, there is no real difference between Subba Rao, J.'s

approach in the dissenting judgment and the majority

judgment. This then answers the major part of the

reference to this nine-Judge Bench in that we hereby

declare that neither the eight-Judge nor the six-Judge

Bench can be read to come in the way of reading the

fundamental right to privacy into Part III of the

Constitution.

xxx xxx xxx

521. In the Indian context, a fundamental right to privacy

would cover at least the following three aspects:

• Privacy that involves the person i.e. when there is some

invasion by the State of a person's rights relatable to his

physical body, such as the right to move freely

• Informational privacy which does not deal with a

person's body but deals with a person's mind, and

therefore recognises that an individual may have control

over the dissemination of material that is personal to him.

Unauthorised use of such information may, therefore lead

to infringement of this right; and

• The privacy of choice, which protects an individual's

autonomy over fundamental personal choices.

For instance, we can ground physical privacy or privacy

relating to the body in Articles 19(1)(d) and (e) read with

44

Article 21; ground personal information privacy under

Article 21; and the privacy of choice in Articles 19(1)(a) to

(c), 20(3), 21 and 25. The argument based on “privacy”

being a vague and nebulous concept need not, therefore,

detain us.”

27.The NDPS Act is to be construed in the backdrop of Article 20(3) and

Article 21, Parliament being aware of the fundamental rights of the

citizen and the judgments of this Court interpreting them, as a result of

which a delicate balance is maintained between the power of the State

to maintain law and order, and the fundamental rights chapter which

protects the liberty of the individual. Several safeguards are thus

contained in the NDPS Act, which is of an extremely drastic and

draconian nature, as has been contended by the counsel for the

Appellants before us. Also, the fundamental rights contained in Articles

20(3) and 21 are given pride of place in the Constitution. After the 42

nd

Amendment to the Constitution was done away with by the 44

th

Amendment, it is now provided that even in an Emergency, these rights

cannot be suspended – see Article 359(1). The interpretation of a

statute like the NDPS Act must needs be in conformity and in tune with

the spirit of the broad fundamental right not to incriminate oneself, and

the right to privacy, as has been found in the recent judgments of this

Court.

CONFESSIONS UNDER SECTION 25 OF THE EVIDENCE ACT

45

28.At this juncture, it is important to set out sections 24 to 27 of the

Evidence Act:

“24. Confession caused by inducement, threat or

promise, when irrelevant in criminal proceeding.––A

confession made by an accused person is irrelevant in a

criminal proceeding, if the making of the confession

appears to the Court to have been caused by any

inducement, threat or promise having reference to the

charge against the accused person, proceeding from a

person in authority and sufficient, in the opinion of the

Court, to give the accused person grounds which would

appear to him reasonable for supposing that by making it

he would gain any advantage or avoid any evil of a

temporal nature in reference to the proceedings against

him.

25. Confession to police-officer not to be proved.––No

confession made to a police-officer, shall be proved as

against a person accused of any offence.

26. Confession by accused while in custody of police

not to be proved against him.––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, shall be proved as against such person.

Explanation.––In this section “Magistrate” does not

include the head of a village discharging magisterial

functions in the Presidency of Fort St. George or

elsewhere, unless such headman is a Magistrate

exercising the powers of a Magistrate under the Code of

Criminal Procedure, 1882 (10 of 1882).

27. How much of information received from accused

may be proved.––Provided 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 such information,

whether it amounts to a confession or not, as relates

distinctly to the fact thereby discovered, may be proved.”

46

29.Section 25 was originally in the Criminal Procedure Code, 1861 (Act 25

of 1861), and was brought into the Evidence Act of 1872. Section 25

states that a confession made to any police officer, whatever his rank,

cannot be relied upon against a person accused of any offence. “Police

officer” is not defined in the Evidence Act or in any cognate criminal

statute. As to what, therefore, “police officer” means, has been the

subject matter of several decisions of this Court, which will be adverted

to later. For the time being, section 25 is to be viewed in contrast to

section 24, given the situation in India of the use of torture and third-

degree measures. Unlike section 24, any confession made to a police

officer cannot be used as evidence against a person accused of an

offence, the voluntariness or otherwise of the confession being

irrelevant – it is conclusively presumed by the legislature that all such

confessions made to police officers are tainted with the vice of coercion.

30.The ‘First Report Of Her Majesty’s Commissioners Appointed To

Consider The Reform Of The Judicial Establishments, Judicial

Procedure And Laws Of India & c.’ (1856) which formed the basis for

section 25 of the Evidence Act, stated as follows:

“Then follow other provisions for preventing any species

of compulsion or maltreatment with a view to extort or

confession or procedure information. But we are informed,

and this information is corroborated by evidence we have

examined, that, in spite of this qualification, confessions

are frequently extorted or fabricated. A police officer, on

receiving intimation of the occurrence of a dacoity or other

47

offence of a serious character, failing to discover the

perpetrators of the offence, often endeavours to secure

himself against any charge of supinates or neglect by

getting up a case against parties whose circumstances or

characters are such as are likely to obtain credit for an

accusation of the kind against them. This is not

infrequently done by extorting or fabricating false

confession, and when this step is once taken, there is of

course impunity for real offenders, and a great

encouragement to crime. The darogah is henceforth

committed to the direction he has given to the case; and it

is his object to prevent a discovery of the truth, and the

apprehension of the guilty parties, Who, as far as the

police are concerned, are now perfectly safe. We are

persuaded that any provision to correct the exercise of

this power by the police will be futile; and we accordingly

propose to remedy the evil, as far as possible, by the

adoption of a rule prohibiting any examination whatever of

any accused party by the police, the result of which is to

constitute a written document.”

(at page 110)

31.It is important to emphasise that the interpretation of the term “accused”

in section 25 of the Evidence Act is materially different from that

contained in Article 20(3) of the Constitution. The scope of the section is

not limited by time – it is immaterial that the person was not an accused

at the time when the confessional statement was made. This was

felicitously put by this Court in Deoman Upadhyaya (supra) as follows:

“By Section 24, in a criminal proceeding against a person,

a confession made by him is inadmissible if it appears to

the court to have been caused by inducement, threat or

promise having reference to the charge and proceeding

from a person in authority. By Section 25, there is an

absolute ban against proof at the trial of a person accused

of an offence, of a confession made to a police officer.

The ban which is partial under Section 24 and complete

under Section 25 applies equally whether or not the

48

person against whom evidence is sought to be led in a

criminal trial was at the time of making the confession in

custody. For the ban to be effective the person need not

have been accused of an offence when he made the

confession. The expression, “accused person” in Section

24 and the expression “a person accused of any offence”

have the same connotation, and describe the person

against whom evidence is sought to be led in a criminal

proceeding. As observed in Pakala Narayan

Swami v. Emperor [LR 66 IA 66] by the Judicial

Committee of the Privy Council, “Section 25 covers a

confession made to a police officer before any

investigation has begun or otherwise not in the course of

an investigation”. The adjectival clause “accused of any

offence” is therefore descriptive of the person against

whom a confessional statement made by him is declared

not provable, and does not predicate a condition of that

person at the time of making the statement for the

applicability of the ban.”

(at page 21)

32. Likewise, in Agnoo Nagesia v. State of Bihar (1966) 1 SCR 134, the

Court held:

“Section 25 provides: “No confession made to a police

officer, shall be proved as against a person accused of an

offence”. The terms of Section 25 are imperative. A

confession made to a police officer under any

circumstances is not admissible in evidence against the

accused. It covers a confession made when he was free

and not in police custody, as also a confession made

before any investigation has begun. The expression

“accused of any offence” covers a person accused of an

offence at the trial whether or not he was accused of the

offence when he made the confession.”

(at page 137)

33.Thus, whereas a formal accusation is necessary for invoking the

protection under Article 20(3), the same would be irrelevant for invoking

the protection under section 25 of the Evidence Act.

49

34.Section 26 of the Evidence Act extends the protection to confessional

statements made by persons while “in the custody” of a police-officer,

unless it be made in the immediate presence of a Magistrate. “Custody”

is not synonymous with “arrest”, as has been held in a number of

judgments of this Court – custody could refer to a situation pre-arrest,

as was the case in State of Haryana and Ors. v. Dinesh Kumar

(2008) 3 SCC 222 (see paragraphs 27-29). In fact, section 46 of the

CrPC speaks of “a submission to the custody by word or action”, which

would, inter alia, refer to a voluntary appearance before a police officer

without any formal arrest being made.

PROVISIONS CONTAINED IN THE NDPS ACT

35.At this stage, it is important to notice that the NDPS Act has been held

to be a complete code on the subject covered by it. In Noor Aga

(supra), this Court held:

“2. Several questions of grave importance including the

constitutional validity of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short “the Act”),

the standard and extent of burden of proof on the

prosecution vis-à-vis the accused are in question in this

appeal which arises out of a judgment and order dated 9-

6-2006 passed by the High Court of Punjab and Haryana

in Criminal Appeal No. 810-SB of 2000 whereby and

whereunder an appeal filed by the applicant against the

judgment of conviction and sentence dated 7-6-2000

under Sections 22 and 23 of the Act had been dismissed.

xxx xxx xxx

50

75. The Act is a complete code by itself. The Customs

Officers have been clothed with the powers of police

officers under the Act. It does not, therefore, deal only with

a matter of imposition of penalty or an order of

confiscation of the properties under the Act, but also with

the offences having serious consequences.

xxx xxx xxx

80. The constitutional mandate of equality of law and

equal protection of law as adumbrated under Article 14 of

the Constitution of India cannot be lost sight of. The

courts, it is well settled, would avoid a construction which

would attract the wrath of Article 14. They also cannot be

oblivious of the law that the Act is a complete code in itself

and, thus, the provisions of the 1962 Act cannot be

applied to seek conviction thereunder.”

36.To similar effect, this Court in Mukesh Singh (supra) held:

“85. From the aforesaid scheme and provisions of the

NDPS Act, it appears that the NDPS Act is a complete

code in itself. Section 41(1) authorises a Metropolitan

Magistrate or a Magistrate of the first class or any

Magistrate of the second class specially empowered by

the State Government in this behalf, may issue a warrant

for the arrest of any person whom he has reason to

believe to have committed any offence punishable under

the NDPS Act, or for the search, whether by day or by

night……Sub-section 2 of Section 41 authorises any such

officer of gazetted rank of the Departments of Central

Excise…… as is empowered in this behalf by general or

special order by the Central Government, or any such

officer of the Revenue…….police or any other department

of a State Government as is empowered in this behalf by

general or special order, if he has reason to believe from

personal knowledge or information given by any person

and taken in writing that any person has committed an

offence punishable under the NDPS Act, authorising any

officer subordinate to him but superior in rank to a peon,

sepoy or a constable to arrest such a person or search a

building, conveyance or place whether by day or by night

51

or himself arrest such a person or search a building,

conveyance or place.”

37.The interplay between the CrPC and the provisions of the NDPS Act is

contained in several provisions. It will be noticed that the CrPC has

been expressly excluded when it comes to suspension, remission or

commutation in any sentence awarded under the NDPS Act – see

section 32A. Equally, nothing contained in section 360 of the CrPC or in

the Probation of Offenders Act, 1958 is to apply to a person convicted of

an offence under the NDPS Act, subject to the exceptions that such

person is under 18 years of age, and that that offence only be

punishable under section 26 or 27 of the NDPS Act – see section 33.

38.On the other hand, the CrPC has been made expressly applicable by

the following sections of the NDPS Act: section 34(2), which refers to

the form of a security bond; section 36B, which refers to the High

Court’s powers in appeal and revision; section 50(5), which refers to

searching a person without the intervention of a Gazetted Officer or a

Magistrate; and section 51, which deals with warrants, arrests,

searches and seizures made under the Act. Equally, the CrPC has been

applied with necessary modifications under section 36A(1)(b), when it

comes to authorising the detention of a person in custody for a period

beyond fifteen days; section 37(1)(b), which contains additional

conditions for the grant of bail in certain circumstances; and section

52

53A, which are exceptions engrafted upon statements made in writing

under sections 161, 162 and 172 of the CrPC. Read with sections 4(2)

and 5 of the CrPC, the scheme of the NDPS Act seems to be that the

CrPC is generally followed, except where expressly excluded, or

applied with modifications.

39.The Statement of Objects and Reasons for enacting the NDPS Act is

important and states as follows:

“The statutory control over narcotic drugs is exercised in

India through a number of Central and State enactments.

The principal Central Acts, namely the Opium Act, 1857,

the Opium Act, 1878 and the Dangerous Drugs Act, 1930

were enacted a long time ago. With the passage of time

and the developments in the field of illicit drug traffic and

drug abuse at national and international level, many

deficiencies in the existing laws have come to notice,

some of which are indicated below:

(i)The scheme of penalties under the present Acts is

not sufficiently deterrent to meet the challenge of

well organized gangs of smugglers. The Dangerous

Drugs Act, 1930 provides for a maximum term of

imprisonment of 3 years with or without fine and 4

years imprisonment with or without fine for repeat

offences. Further, no minimum punishment is

prescribed in the present laws, as a result of which

drug traffickers have been some times let off by the

courts with nominal punishment. The country has for

the last few years been increasingly facing the

problem of transit traffic of drugs coming mainly

from some of our neighbouring countries and

destined mainly to Western countries.

(ii)The existing Central laws do not provide for

investing the officers of a number of important

Central enforcement agencies like Narcotics,

53

Customs, Central Excise, etc., with the power of

investigation of offences under the said laws.

(iii)Since the enactment of the aforesaid three Central

Acts a vast body of international law in the field of

narcotics control has evolved through various

international treaties and protocols. The

Government of India has been a party to these

treaties and conventions which entail several

obligations which are not covered or are only partly

covered by the present Acts.

(iv)During recent years new drugs of addiction which

have come to be known as psychotropic substances

have appeared on the scene and posed serious

problems to national government. There is no

comprehensive law to enable exercise of control

over psychotropic substances in India in the manner

as envisaged in the Convention on Psychotropic

Substances, 1971 to which India has also acceded.

2. In view of what has been stated above, there is an

urgent need for the enactment of a comprehensive

legislation on narcotic drugs and psychotropic substances

which, inter alia , should consolidate and amend the

existing laws relating to narcotic drugs, strengthen the

existing controls over drug abuse, considerably enhance

the penalties particularly for trafficking offences, make

provisions for exercising effective control over

psychotropic substances and make provisions for the

implementation of international conventions relating to

narcotic drugs and psychotropic substances to which

India has become a party.

3. The Bill seeks to achieve the above objects.”

(emphasis supplied)

40.The very first thing that this Statement addresses is the woeful

inadequacy of three old Acts, insofar as the scheme of penalties is

concerned, which were not sufficiently deterrent to meet the challenge

54

of well organised gangs of smugglers, together with the importance of

investing, for the first time, the officers of central enforcement agencies

with the power of investigation of offences under the new law.

Undoubtedly, the NDPS Act is a comprehensive legislation which makes

provisions for exercising control over narcotic drugs and psychotropic

substances, at the heart of which is the power vested in various officers

to investigate offences under the Act, so as to prevent and punish the

same against offenders being, inter alia, organised gangs of smugglers

who indulge in what is considered by Parliament to be a menace to

society. Also, the preamble to the NDPS Act states:

“An Act to consolidate and amend the law relating to

narcotic drugs, to make stringent provisions for the control

and regulation of operations relating to narcotic drugs and

psychotropic substances, to provide for the forfeiture of

property derived from, or used in, illicit traffic in narcotic

drugs and psychotropic substances, to implement the

provisions of the International Convention on Narcotic

Drugs and Psychotropic Substances and for matters

connected therewith.”

41.This itself refers to the Act being a “stringent” measure to combat the

menace of crimes relatable to drugs and psychotropic substances.

Under Chapter IV, which deals with “Offences and Penalties”, sections

15-24 speak of various drugs and psychotropic substances, in which

the golden thread running through these sections is that where the

contravention involves “small quantity” as defined, there can be a

rigorous imprisonment for a term that may extend to one year, or a fine

55

that may extend to ten thousand rupees or both; where the

contravention involves an intermediate quantity, i.e. between “small”

and “commercial” quantity, with rigorous imprisonment that may extend

to ten years and with fine that may extend to one lakh rupees; and

where the contravention involves “commercial quantity” as defined, with

rigorous imprisonment for a minimum of ten years but which may

extend to twenty years, and also be liable to a fine which shall not be

less than one lakh, but which may extend to two lakhs – the court, for

reasons to be recorded, is also given the power to impose a fine

exceeding two lakhs. Under sections 28 and 29, punishments for

attempts to commit offences, and for abetment and criminal conspiracy,

are then set out. An extremely important section is section 30, where

even preparation to commit an offence is made an offence

1

. Under

section 31, where a person is already convicted of the commission of,

or attempt to commit, or abetment of, or criminal conspiracy to commit,

any of the offences punishable under the NDPS Act, and is

subsequently convicted of the commission of, or attempt to commit, or

abetment of, or criminal conspiracy to commit, an offence punishable

under the NDPS Act, the punishment then goes to up to a term which

may extend to one and one-half times the maximum term of

1 It may be remembered that in the Indian Penal Code, 1860 (“IPC”), the only

section where preparation is made an offence, is “preparation to commit

dacoity”. See Section 399, IPC.

56

imprisonment, and shall also be liable to a fine which shall extend to

one and one-half times of the maximum amount of fine. In certain

circumstances under section 31A, the death penalty is also awarded.

Under section 32A, no sentence awarded under the NDPS Act, other

than a sentence under section 27, shall be suspended, remitted or

commuted. Equally, we have seen how under section 33, the Probation

of Offenders Act, 1958 does not apply where the offender is above 18,

or if the offence is for offences other than those under sections 26 and

27 of the Act.

42.Several presumptions are also made under the NDPS Act in which the

burden of proof is reversed, now being on the accused. They are all to

be found in three sections – sections 35, 54 and 66. These sections

state as follows:

“35. Presumption of culpable mental state.—(1) In any

prosecution for an offence under this Act which requires a

culpable mental state of the accused, the court shall

presume the existence of such mental state but it shall be

a defence for the accused to prove the fact that he had no

such mental state with respect to the act charged as an

offence in that prosecution.

Explanation.—In this section “culpable mental state”

includes intention, motive, knowledge of a fact and belief

in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be

proved only when the court believes it to exist beyond a

reasonable doubt and not merely when its existence is

established by a preponderance of probability.”

57

“54. Presumption from possession of illicit articles.—

In trials under this Act, it may be presumed, unless and

until the contrary is proved, that the accused has

committed an offence under this Act in respect of—

(a) any narcotic drug or psychotropic substance or

controlled substance;

(b) any opium poppy, cannabis plant or coca plant

growing on any land which he has cultivated;

(c) any apparatus specially designed or any group of

utensils specially adopted for the manufacture of any

narcotic drug or psychotropic substance or controlled

substance; or

(d) any materials which have undergone any process

towards the manufacture of a narcotic drug or

psychotropic substance or controlled substance, or any

residue left of the materials from which any narcotic drug

or psychotropic substance or controlled substance has

been manufactured,

for the possession of which he fails to account

satisfactorily.”

“66. Presumption as to documents in certain cases.—

Where any document—

(i) is produced or furnished by any person or has been

seized from the custody or control of any person, in either

case, under this Act or under any other law, or

(ii) has been received from any place outside India (duly

authenticated by such authority or person and in such

manner as may be prescribed by the Central

Government) in the course of investigation of any offence

under this Act alleged to have been committed by a

person, and such document is tendered in any

prosecution under this Act in evidence against him, or

against him and any other person who is tried jointly with

him, the court shall—

(a) presume, unless the contrary is proved, that the

signature and every other part of such document which

purports to be in the handwriting of any particular person

58

or which the court may reasonably assume to have been

signed by, or to be in the handwriting of, any particular

person, is in that person’s handwriting; and in the case of

a document executed or attested, that it was executed or

attested by the person by whom it purports to have been

so executed or attested;

(b) admit the document in evidence, notwithstanding that

it is not duly stamped, if such document is otherwise

admissible in evidence;

(c) in a case falling under clause (i), also presume, unless

the contrary is proved, the truth of the contents of such

document.”

43.Section 37(1) makes all offences under the Act cognizable and non-

bailable, with stringent conditions for bail attached:

“37. Offences to be cognizable and non-bailable.—(1)

Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be

cognizable;

(b) no person accused of an offence punishable for

offences under section 19 or section 24 or section 27A

and also for offences involving commercial quantity shall

be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to

oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application,

the court is satisfied that there are reasonable grounds for

believing that he is not guilty of such offence and that he

is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause

(b) of sub-section (1) are in addition to the limitations

under the Code of Criminal Procedure, 1973 (2 of 1974)

or any other law for the time being in force on granting of

bail.”

59

44.Under section 40, where a person is convicted of any of the offences

punishable under the Act, the court may, in addition, publish at the

expense of such person – in a newspaper or other manner – the factum

of such conviction. The NDPS Act is said to be in addition to the

Customs Act, 1962 and the Drugs and Cosmetics Act, 1940, so that,

notwithstanding that offences may be made out under those Acts,

offences under the NDPS Act will continue to be tried as such – see

sections 79 and 80.

45.Given the stringent nature of the NDPS Act, several sections provide

safeguards so as to provide a balance between investigation and trial of

offences under the Act, and the fundamental rights of the citizen.

Several safeguards are contained in section 42, which states as follows:

“42. Power of entry, search, seizure and arrest without

warrant or authorisation.—(1) Any such officer (being an

officer superior in rank to a peon, sepoy or constable) of

the departments of central excise, narcotics, customs,

revenue intelligence or any other department of the

Central Government including para-military forces or

armed forces as is empowered in this behalf by general or

special order by the Central Government, or any such

officer (being an officer superior in rank to a peon, sepoy

or constable) of the revenue, drugs control, excise, police

or any other department of a State Government as is

empowered in this behalf by general or special order of

the State Government, if he has reason to believe from

personal knowledge or information given by any person

and taken down in writing that any narcotic drug, or

psychotropic substance, or controlled substance in

respect of which an offence punishable under this Act has

been committed or any document or other article which

60

may furnish evidence of the commission of such offence

or any illegally acquired property or any document or

other article which may furnish evidence of holding any

illegally acquired property which is liable for seizure or

freezing or forfeiture under Chapter VA of this Act is kept

or concealed in any building, conveyance or enclosed

place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance

or place;

(b) in case of resistance, break open any door and

remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in

the manufacture thereof and any other article and any

animal or conveyance which he has reason to believe to

be liable to confiscation under this Act and any document

or other article which he has reason to believe may

furnish evidence of the commission of any offence

punishable under this Act or furnish evidence of holding

any illegally acquired property which is liable for seizure or

freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any

person whom he has reason to believe to have committed

any offence punishable under this Act:

Provided that in respect of a holder of a licence for

manufacture of manufactured drugs or psychotropic

substances or controlled substances, granted under this

Act or any rule or order made thereunder, such power

shall be exercised by an officer not below the rank of sub-

inspector:

Provided further that if such officer has reason to believe

that a search warrant or authorisation cannot be obtained

without affording opportunity for the concealment of

evidence or facility for the escape of an offender, he may

enter and search such building, conveyance or enclosed

place at any time between sunset and sunrise after

recording the grounds of his belief.

61

(2) Where an officer takes down any information in writing

under sub-section (1) or records grounds for his belief

under the proviso thereto, he shall within seventy-two

hours send a copy thereof to his immediate official

superior.”

46.From this section it is clear that only when the concerned officer has

“reason to believe” from personal knowledge or information given by

any person and taken down in writing that an offence has been

committed, that the concerned officer may, only between sunrise and

sunset, enter, search, seize drugs and materials, and arrest any person

who he believes has committed any offence. By the first proviso, this

can be done only by an officer not below the rank of sub-inspector.

Under sub-section (2) in addition, where the information in writing is

given, the officer involved must send a copy thereof to his immediate

official superior within seventy-two hours. It is important here to contrast

“reason to believe” with the expression “reason to suspect”, which is

contained in section 49 of the NDPS Act. Thus, “reason to believe” has

been construed by this Court in A.S. Krishnan v. State of Kerala

(2004) 11 SCC 576 as follows:

“9. Under IPC, guilt in respect of almost all the offences is

fastened either on the ground of “intention” or “knowledge”

or “reason to believe”. We are now concerned with the

expressions “knowledge” and “reason to believe”.

“Knowledge” is an awareness on the part of the person

concerned indicating his state of mind. “Reason to

believe” is another facet of the state of mind. “Reason to

believe” is not the same thing as “suspicion” or “doubt”

and mere seeing also cannot be equated to believing.

62

“Reason to believe” is a higher level of state of mind.

Likewise “knowledge” will be slightly on a higher plane

than “reason to believe”. A person can be supposed to

know where there is a direct appeal to his senses and a

person is presumed to have a reason to believe if he has

sufficient cause to believe the same. Section 26 IPC

explains the meaning of the words “reason to believe”

thus:

“26. ‘Reason to believe’.—A person is said to have

‘reason to believe’ a thing, if he has sufficient cause to

believe that thing but not otherwise.””

47.Section 50 of the NDPS Act contains extremely important conditions

under which a search of persons shall be conducted. Section 50 states:

“50. Conditions under which search of persons shall

be conducted.—(1) When any officer duly authorised

under section 42 is about to search any person under the

provisions of section 41, section 42 or section 43, he

shall, if such person so requires, take such person without

unnecessary delay to nearest Gazetted Officer of any of

the departments mentioned in section 42 or to the nearest

Magistrate.

(2) If such requisition is made, the officer may detain the

person until he can bring him before the Gazetted Officer

or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom

any such person is brought shall, if he sees no reasonable

ground for search, forthwith discharge the person but

otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a

female.

(5) When an officer duly authorised under section 42 has

reason to believe that it is not possible to take the person

to be searched to the nearest Gazetted Officer or

Magistrate without the possibility of the person to be

searched parting with possession of any narcotic drug or

psychotropic substance, or controlled substance or article

63

or document, he may, instead of taking such person to the

nearest Gazetted Officer or Magistrate, proceed to search

the person as provided under section 100 of the Code of

Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the

officer shall record the reasons for such belief which

necessitated such search and within seventy-two hours

send a copy thereof to his immediate official superior.”

48.In Baldev Singh (supra), this Court had held:

“17. The trial court in those cases had acquitted the

accused on the ground that the arrest, search and seizure

were conducted in violation of some of the “relevant and

mandatory” provisions of the NDPS Act. The High Court

declined to grant appeal against the order of acquittal.

The State of Punjab thereupon filed appeals by special

leave in this Court. In some other cases, where the

accused had been convicted, they also filed appeals by

special leave questioning their conviction and sentence on

the ground that their trials were illegal because of non-

compliance with the safeguards provided under Section

50 of the NDPS Act. A two-Judge Bench speaking through

K. Jayachandra Reddy, J. considered several provisions

of the NDPS Act governing arrest, search and seizure

and, in particular, the provisions of Sections 41, 42, 43,

44, 49, 50, 51, 52 and 57 of the NDPS Act as well as the

provisions of the Code of Criminal Procedure relating to

search and seizure effected during investigation of a

criminal case. Dealing with Section 50, it was held that in

the context in which the right had been conferred, it must

naturally be presumed that it is imperative on the part of

the officer to inform the person to be searched of his right

that if he so requires he shall be searched before a

gazetted officer or Magistrate and on such request being

made by him, to be taken before the gazetted officer or

Magistrate for further proceedings. The reasoning given

in Balbir Singh case [(1994) 3 SCC 299] was that to afford

an opportunity to the person to be searched “if he so

requires to be searched before a gazetted officer or a

Magistrate” he must be made aware of that right and that

could be done only by the empowered officer

64

by informing him of the existence of that right. The Court

went on to hold that failure to inform the person to be

searched of that right and if he so requires, failure to take

him to the gazetted officer or the Magistrate, would mean

non-compliance with the provisions of Section 50 which in

turn would “affect the prosecution case and vitiate the

trial”. The following conclusions were arrived at by the

two-Judge Bench in State of Punjab v. Balbir Singh:

“25. The questions considered above arise frequently

before the trial courts. Therefore we find it necessary to

set out our conclusions which are as follows:

(1) If a police officer without any prior information as

contemplated under the provisions of the NDPS Act

makes a search or arrests a person in the normal course

of investigation into an offence or suspected offences as

provided under the provisions of CrPC and when such

search is completed at that stage Section 50 of the NDPS

Act would not be attracted and the question of complying

with the requirements thereunder would not arise. If

during such search or arrest there is a chance recovery of

any narcotic drug or psychotropic substance then the

police officer, who is not empowered, should inform the

empowered officer who should thereafter proceed in

accordance with the provisions of the NDPS Act. If he

happens to be an empowered officer also, then from that

stage onwards, he should carry out the investigation in

accordance with the other provisions of the NDPS Act.

(2-A) Under Section 41(1) only an empowered Magistrate

can issue warrant for the arrest or for the search in

respect of offences punishable under Chapter IV of the

Act etc. when he has reason to believe that such offences

have been committed or such substances are kept or

concealed in any building, conveyance or place. When

such warrant for arrest or for search is issued by a

Magistrate who is not empowered, then such search or

arrest if carried out would be illegal. Likewise only

empowered officers or duly authorized officers as

enumerated in Sections 41(2) and 42(1) can act under the

provisions of the NDPS Act. If such arrest or search is

made under the provisions of the NDPS Act by anyone

other than such officers, the same would be illegal.

65

(2-B) Under Section 41(2) only the empowered officer can

give the authorisation to his subordinate officer to carry

out the arrest of a person or search as mentioned therein.

If there is a contravention, that would affect the

prosecution case and vitiate the conviction.

(2-C) Under Section 42(1) the empowered officer if has a

prior information given by any person, that should

necessarily be taken down in writing. But if he has reason

to believe from personal knowledge that offences under

Chapter IV have been committed or materials which may

furnish evidence of commission of such offences are

concealed in any building etc. he may carry out the arrest

or search without a warrant between sunrise and sunset

and this provision does not mandate that he should record

his reasons of belief. But under the proviso to Section

42(1) if such officer has to carry out such search between

sunset and sunrise, he must record the grounds of his

belief.

To this extent these provisions are mandatory and

contravention of the same would affect the prosecution

case and vitiate the trial.

(3) Under Section 42(2) such empowered officer who

takes down any information in writing or records the

grounds under proviso to Section 42(1) should forthwith

send a copy thereof to his immediate official superior. If

there is total non-compliance of this provision the same

affects the prosecution case. To that extent it is

mandatory. But if there is delay whether it was undue or

whether the same has been explained or not, will be a

question of fact in each case.

(4-A) If a police officer, even if he happens to be an

‘empowered’ officer while effecting an arrest or search

during normal investigation into offences purely under the

provisions of CrPC fails to strictly comply with the

provisions of Sections 100 and 165 CrPC including the

requirement to record reasons, such failure would only

amount to an irregularity.

(4-B) If an empowered officer or an authorised officer

under Section 41(2) of the Act carries out a search, he

66

would be doing so under the provisions of CrPC namely

Sections 100 and 165 CrPC and if there is no strict

compliance with the provisions of CrPC then such search

would not per se be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the

courts while appreciating the evidence in the facts and

circumstances of each case.

(5) On prior information the empowered officer or

authorised officer while acting under Sections 41(2) or 42

should comply with the provisions of Section 50 before the

search of the person is made and such person should be

informed that if he so requires, he shall be produced

before a gazetted officer or a Magistrate as provided

thereunder. It is obligatory on the part of such officer to

inform the person to be searched. Failure to inform the

person to be searched and if such person so requires,

failure to take him to the gazetted officer or the

Magistrate, would amount to non-compliance of Section

50 which is mandatory and thus it would affect the

prosecution case and vitiate the trial. After being so

informed whether such person opted for such a course or

not would be a question of fact.

(6) The provisions of Sections 52 and 57 which deal with

the steps to be taken by the officers after making arrest or

seizure under Sections 41 to 44 are by themselves not

mandatory. If there is non-compliance or if there are

lapses like delay etc. then the same has to be examined

to see whether any prejudice has been caused to the

accused and such failure will have a bearing on the

appreciation of evidence regarding arrest or seizure as

well as on merits of the case.”

(emphasis in original)

xxx xxx xxx

57. On the basis of the reasoning and discussion above,

the following conclusions arise:

(1) That when an empowered officer or a duly authorised

officer acting on prior information is about to search a

person, it is imperative for him to inform the concerned

67

person of his right under Sub-section (1) of Section 50 of

being taken to the nearest Gazetted Officer or the nearest

Magistrate for making the search. However, such

information may not necessarily be in writing;

(2) That failure to inform the concerned person about the

existence of his right to be searched before a Gazetted

Officer or a Magistrate would cause prejudice to an

accused;

(3) That a search made, by an empowered officer, on prior

information, without informing the person of his right that,

if he so requires, he shall be taken before a Gazetted

Officer or a Magistrate for search and in case he so opts,

failure to conduct his search before a Gazetted Officer or

a Magistrate, may not vitiate the trial but would render the

recovery of the illicit article suspect and vitiate the

conviction and sentence of an accused, where the

conviction has been recorded only on the basis of the

possession of the illicit article, recovered from his person,

during a search conducted in violation of the provisions

of Section 50 of the Act;

(4) That there is indeed need to protect society from

criminals. The societal intent in safety will suffer if persons

who commit crimes are let off because the evidence

against them is to be treated as if it does not exist. The

answer, therefore, is that the investigating agency must

follow the procedure as envisaged by the statute

scrupulously and the failure to do so must be viewed by

the higher authorities seriously inviting action against the

concerned official so that the laxity on the part of the

investigating authority is curbed. In every case the end

result is important but the means to achieve it must

remain above board. The remedy cannot be worse than

the disease itself. The legitimacy of judicial process may

come under cloud if the court is seen to condone acts of

lawlessness conducted by the investigating agency during

search operations and may also undermine respect for

law and may have the effect of unconscionably

compromising the administration of justice. That cannot

be permitted. An accused is entitled to a fair trial. A

conviction resulting from an unfair trial is contrary to our

concept of justice. The use of evidence collected in

68

breach of the safeguards provided by Section 50 at the

trial, would render the trial unfair.

(5) That whether or not the safeguards provided

in Section 50 have been duly observed would have to be

determined by the Court on the basis of evidence led at

the trial. Finding on that issue, one way or the other,

would be relevant for recording an order of conviction or

acquittal. Without giving an opportunity to the prosecution

to establish, at the trial, that the provisions of Section 50,

and particularly the safeguards provided therein were duly

complied with, it would not be permissible to cut-short a

criminal trial;

(6) That in the context in which the protection has been

incorporated in Section 50 for the benefit of the person

intended to be searched, we do not express any opinion

whether the provisions of Section 50 are mandatory or

directory, but, hold that failure to inform the concerned

person of his right as emanating from Sub-section (1)

of Section 50, may render the recovery of the contraband

suspect and the conviction and sentence of an accused

bad and unsustainable in law;

(7) That an illicit article seized from the person of an

accused during search conducted in violation of the

safeguards provided in Section 50 of the Act cannot be

used as evidence of proof of unlawful possession of the

contraband on the accused though any other material

recovered during that search may be relied upon by the

prosecution, in other proceedings, against an accused,

notwithstanding the recovery of that material during an

illegal search;

(8) A presumption under Section 54 of the Act can only be

raised after the prosecution has established that the

accused was found to be in possession of the contraband

in a search conducted in accordance with the mandate

of Section 50. An illegal search cannot entitle the

prosecution to raise a presumption under Section 54 of

the Act

(9) That the judgment in Pooran Mal's case cannot be

understood to have laid down that an illicit article seized

69

during a search of a person, on prior information,

conducted in violation of the provisions of Section 50 of

the Act, can by itself be used as evidence of unlawful

possession of the illicit article on the person from whom

the contraband has been seized during the illegal search;

(10) That the judgment in Ali Mustaffa's case correctly

interprets and distinguishes the judgment in Pooran Mal's

case and the broad observations made in Pirthi Chand's

case and Jasbir Singh's case are not in tune with the

correct exposition of law as laid down in Pooran Mal's

case. The above conclusions are not a summary of our

judgment and have to be read and considered in the light

of the entire discussion contained in the earlier part.”

49.Immediately after this judgment, Parliament enacted sub-sections (5)

and (6). Despite the enactment of these provisions, this Court in

Vijaysinh Chandubha Jadeja (supra) specifically held as follows:

“24. Although the Constitution Bench in Baldev Singh

case [(1999) 6 SCC 172] did not decide in absolute terms

the question whether or not Section 50 of the NDPS Act

was directory or mandatory yet it was held that provisions

of sub-section (1) of Section 50 make it imperative for the

empowered officer to “inform” the person concerned

(suspect) about the existence of his right that if he so

requires, he shall be searched before a gazetted officer or

a Magistrate; failure to “inform” the suspect about the

existence of his said right would cause prejudice to him,

and in case he so opts, failure to conduct his search

before a gazetted officer or a Magistrate, may not vitiate

the trial but would render the recovery of the illicit article

suspect and vitiate the conviction and sentence of an

accused, where the conviction has been recorded only on

the basis of the possession of the illicit article, recovered

from the person during a search conducted in violation of

the provisions of Section 50 of the NDPS Act. The Court

also noted that it was not necessary that the information

required to be given under Section 50 should be in a

prescribed form or in writing but it was mandatory that the

suspect was made aware of the existence of his right to

70

be searched before a gazetted officer or a Magistrate, if

so required by him. We respectfully concur with these

conclusions. Any other interpretation of the provision

would make the valuable right conferred on the suspect

illusory and a farce.

xxx xxx xxx

27. It can, thus, be seen that apart from the fact that

in Karnail Singh [(2009) 8 SCC 539], the issue was

regarding the scope and applicability of Section 42 of the

NDPS Act in the matter of conducting search, seizure and

arrest without warrant or authorisation, the said decision

does not depart from the dictum laid down in Baldev

Singh case [(1999) 6 SCC 172] insofar as the obligation of

the empowered officer to inform the suspect of his right

enshrined in sub-section (1) of Section 50 of the NDPS

Act is concerned. It is also plain from the said paragraph

that the flexibility in procedural requirements in terms of

the two newly inserted sub-sections can be resorted to

only in emergent and urgent situations, contemplated in

the provision, and not as a matter of course. Additionally,

sub-section (6) of Section 50 of the NDPS Act makes it

imperative and obligatory on the authorised officer to send

a copy of the reasons recorded by him for his belief in

terms of sub-section (5), to his immediate superior officer,

within the stipulated time, which exercise would again be

subjected to judicial scrutiny during the course of trial.

xxx xxx xxx

29. In view of the foregoing discussion, we are of the firm

opinion that the object with which the right under Section

50(1) of the NDPS Act, by way of a safeguard, has been

conferred on the suspect viz. to check the misuse of

power, to avoid harm to innocent persons and to minimise

the allegations of planting or foisting of false cases by the

law enforcement agencies, it would be imperative on the

part of the empowered officer to apprise the person

intended to be searched of his right to be searched before

a gazetted officer or a Magistrate. We have no hesitation

in holding that insofar as the obligation of the authorised

officer under sub-section (1) of Section 50 of the NDPS

Act is concerned, it is mandatory and requires strict

71

compliance. Failure to comply with the provision would

render the recovery of the illicit article suspect and vitiate

the conviction if the same is recorded only on the basis of

the recovery of the illicit article from the person of the

accused during such search. Thereafter, the suspect may

or may not choose to exercise the right provided to him

under the said provision.

xxx xxx xxx

31. We are of the opinion that the concept of “substantial

compliance” with the requirement of Section 50 of the

NDPS Act introduced and read into the mandate of the

said section in Joseph Fernandez [(2000) 1 SCC 707]

and Prabha Shankar Dubey [(2004) 2 SCC 56] is neither

borne out from the language of sub-section (1) of Section

50 nor is it in consonance with the dictum laid down

in Baldev Singh case [(1999) 6 SCC 172]. Needless to

add that the question whether or not the procedure

prescribed has been followed and the requirement of

Section 50 had been met, is a matter of trial. It would

neither be possible nor feasible to lay down any absolute

formula in that behalf.”

50.Thus, this extremely important safeguard continues, as has been

originally enacted, subject only to the exceptions in sub-sections (5) and

(6), which can only be used in urgent and emergent situations. This

Court has clearly held that non-compliance of this provision would lead

to the conviction of the accused being vitiated, and that “substantial”

compliance with these provisions would not save the prosecution case.

51.Likewise, section 52 of the NDPS Act states as follows:

“52. Disposal of persons arrested and articles seized.

—(1) Any officer arresting a person under section 41,

section 42, section 43 or section 44 shall, as soon as may

be, inform him of the grounds for such arrest.

72

(2) 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.

(3) Every person arrested and article seized under sub-

section (2) of section 41, section 42, section 43 or section

44 shall be forwarded without unnecessary delay to—

(a) the officer-in-charge of the nearest police station, or

(b) the officer empowered under section 53.

(4) The authority or officer to whom any person or article

is forwarded under sub-section (2) or sub-section (3)

shall, with all convenient despatch, take such measures

as may be necessary for the disposal according to law of

such person or article.”

52.Section 52(1)-(3) contains three separate safeguards, insofar as

disposal of persons arrested and articles seized are concerned.

53.Section 57 then speaks of a person making an arrest or seizure having

to make a full report of all the particulars of such arrest or seizure to his

immediate official superior within forty-eight hours. Equally, under

section 57A, whenever any officer notified under section 53 makes an

arrest or seizure under the Act, the officer shall make a report of the

illegally acquired properties of such person to the jurisdictional

competent authority within ninety days of the arrest or seizure. Section

58 is extremely important, and is set out hereinbelow:

“58. Punishment for vexatious entry, search, seizure

or arrest.—(1) Any person empowered under section 42

or section 43 or section 44 who—

73

(a) without reasonable ground of suspicion enters or

searches, or causes to be entered or searched, any

building, conveyance or place;

(b) vexatiously and unnecessarily seizes the property of

any person on the pretence of seizing or searching for any

narcotic drug or psychotropic substance or other article

liable to be confiscated under this Act, or of seizing any

document or other article liable to be seized under section

42, section 43 or section 44; or

(c) vexatiously and unnecessarily detains, searches or

arrests any person, shall be punishable with imprisonment

for a term which may extend to six months or with fine

which may extend to one thousand rupees, or with both.

(2) Any person wilfully and maliciously giving false

information and so causing an arrest or a search being

made under this Act shall be punishable with

imprisonment for a term which may extend to two years or

with fine or with both.”

54.This, more than any other provision, makes it clear that a person’s

privacy is not to be trifled with, because if it is, the officer who trifles with

it is himself punishable under the provision. Under section 63, which

contains the procedure in making confiscations, the first proviso to sub-

section (2) makes it clear that no order of confiscation of an article or

thing shall be made until the expiry of one month from the date of

seizure, or without hearing any person who may claim any right thereto

and the evidence which he produces in respect of his claim.

55.Given the stringent provisions of the NDPS Act, together with the

safeguards mentioned in the provisions discussed above, it is important

to note that statutes like the NDPS Act have to be construed bearing in

74

mind the fact that the severer the punishment, the greater the care

taken to see that the safeguards provided in the statute are

scrupulously followed. This was laid down in paragraph 28 of Baldev

Singh (supra). That the NDPS Act is predominantly a penal statute is

no longer res integra. In Directorate of Revenue and Anr. v.

Mohammed Nisar Holia (2008) 2 SCC 370, this Court held:

“9. The NDPS Act is a penal statute. It invades the rights

of an accused to a large extent. It raises a presumption of

a culpable mental state. Ordinarily, even an accused may

not be released on bail having regard to Section 37 of the

Act. The court has the power to publish names, address

and business, etc. of the offenders. Any document

produced in evidence becomes admissible. A vast power

of calling for information upon the authorities has been

conferred by reason of Section 67 of the Act.

10. Interpretation and/or validity in regard to the power of

search and seizure provided for under the said Act came

up for consideration in Balbir Singh case [(1994) 3 SCC

299] wherein it was held:

“10. It is thus clear that by a combined reading of Sections

41, 42, 43 and 51 of the NDPS Act and Section 4 CrPC

regarding arrest and search under Sections 41, 42 and

43, the provisions of CrPC, namely, Sections 100 and 165

would be applicable to such arrest and search.

Consequently the principles laid down by various courts

as discussed above regarding the irregularities and

illegalities in respect of arrest and search would equally

be applicable to the arrest and search under the NDPS

Act also depending upon the facts and circumstances of

each case.

11. But there are certain other embargoes envisaged

under Sections 41 and 42 of the NDPS Act. Only a

Magistrate so empowered under Section 41 can issue a

warrant for arrest and search where he has reason to

believe that an offence under Chapter IV has been

75

committed so on and so forth as mentioned therein. Under

sub-section (2) only a gazetted officer or other officers

mentioned and empowered therein can give an

authorisation to a subordinate to arrest and search if such

officer has reason to believe about the commission of an

offence and after reducing the information, if any, into

writing. Under Section 42 only officers mentioned therein

and so empowered can make the arrest or search as

provided if they have reason to believe from personal

knowledge or information. In both these provisions there

are two important requirements. One is that the

Magistrate or the officers mentioned therein firstly be

empowered and they must have reason to believe that an

offence under Chapter IV has been committed or that

such arrest or search was necessary for other purposes

mentioned in the provision. So far as the first requirement

is concerned, it can be seen that the legislature intended

that only certain Magistrates and certain officers of higher

rank and empowered can act to effect the arrest or

search. This is a safeguard provided having regard to the

deterrent sentences contemplated and with a view that

innocent persons are not harassed. Therefore if an arrest

or search contemplated under these provisions of NDPS

Act has to be carried out, the same can be done only by

competent and empowered Magistrates or officers

mentioned thereunder.”

11. Power to make search and seizure as also to arrest

an accused is founded upon and subject to satisfaction of

the officer as the term “reason to believe” has been used.

Such belief may be founded upon secret information that

may be orally conveyed by the informant. Draconian

provision which may lead to a harsh sentence having

regard to the doctrine of “due process” as adumbrated

under Article 21 of the Constitution of India requires

striking of balance between the need of law and

enforcement thereof, on the one hand, and protection of

citizen from oppression and injustice on the other.

12. This Court in Balbir Singh [(1994) 3 SCC 299]

referring to Miranda v. State of Arizona [384 US 436

(1966)] while interpreting the provisions of the Act held

that not only the provisions of Section 165 of the Code of

76

Criminal Procedure would be attracted in the matter of

search and seizure but the same must comply with right of

the accused to be informed about the requirement to

comply with the statutory provisions.

xxx xxx xxx

16. It is not in dispute that the said Act prescribes

stringent punishment. A balance, thus, must be struck in

regard to the mode and manner in which the statutory

requirements are to be complied with vis-à-vis the place of

search and seizure.”

56.Likewise, in Union of India v. Bal Mukund (2009) 12 SCC 161, this

Court held:

“28. Where a statute confers such drastic powers and

seeks to deprive a citizen of its liberty for not less than ten

years, and making stringent provisions for grant of bail,

scrupulous compliance with the statutory provisions must

be insisted upon.”

57.With this pronouncement of the law in mind, let us now examine the two

questions that have been referred to us.

SCOPE OF SECTION 67 OF THE NDPS ACT

58.Section 67 of the NDPS Act is set out hereinbelow:

“67. Power to call for information, etc.—Any officer

referred to in section 42 who is authorised in this behalf by

the Central Government or a State Government may,

during the course of any enquiry in connection with the

contravention of any provision of this Act,—

(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;

77

(c) examine any person acquainted with the facts and

circumstances of the case.”

59.The marginal note to the section indicates that it refers only to the

power to “call for information, etc.”. As has been held by this Court in

K.P. Varghese v. Income Tax Officer, Ernakulam and Anr. (1981) 4

SCC 173, a marginal note is an important internal tool for indicating the

meaning and purpose of a section in a statute, as it indicates the “drift”

of the provision. The Court held as follows:

“9. This interpretation of sub-section (2) is strongly

supported by the marginal note to Section 52 which reads

“Consideration for transfer in cases of understatement”. It

is undoubtedly true that the marginal note to a section

cannot be referred to for the purpose of construing the

section but it can certainly be relied upon as indicating the

drift of the section or, to use the words of Collins, M.R.

in Bushel v. Hammond [(1904) 2 KB 563] to show what

the section is dealing with. It cannot control the

interpretation of the words of a section particularly when

the language of the section is clear and unambiguous but,

being part of the statute, it prima facie furnishes some

clue as to the meaning and purpose of the section

(vide Bengal Immunity Company Limited v. State of

Bihar [(1955) 2 SCR 603]).”

60.Secondly, it is only an officer referred to in section 42 who may use the

powers given under section 67 in order to make an “enquiry” in

connection with the contravention of any provision of this Act. The word

“enquiry” has been used in section 67 to differentiate it from “inquiry” as

used in section 53A, which is during the course of investigation of

78

offences

2

. As a matter of fact, the notifications issued under the Act

soon after the Act came into force, which will be referred to later in the

judgment, specifically speak of the powers conferred under section

42(1) read with section 67. This is an important executive reading of the

NDPS Act, which makes it clear that the powers to be exercised under

section 67 are to be exercised in conjunction with the powers that are

delineated in section 42(1). Thus, in Desh Bandhu Gupta & Co. v.

Delhi Stock Exchange Assn. Ltd. (1979) 4 SCC 565, this Court

referred to the principle of “contemporanea expositio” in the context of

an executive interpretation of a statute, as follows:

“9…The principle of contemporanea expositio (interpreting

a statute or any other document by reference to the

exposition it has received from contemporary authority)

can be invoked though the same will not always be

decisive of the question of construction (Maxwell 12th ed.

p.268). In Crawford on Statutory Construction (1940 ed.)

in para 219 (at pp. 393-395) it has been stated that

administrative construction (i.e. contemporaneous

construction placed by administrative or executive officers

charged with executing a statute) generally should be

clearly wrong before it is overturned; such a construction,

commonly referred to as practical construction, although

not controlling, is nevertheless entitled to considerable

weight; it is highly persuasive. In Baleshwar

Bagarti v. Bhagirathi Dass [ILR 35 Cal 701 at 713] the

principle, which was reiterated in Mathura Mohan

2 In Lexico (a collaboration between Oxford University Press and

Dictionary.com), it is stated that “the traditional distinction between

the verbs enquire and inquire is that enquire is to be used for

general senses of ‘ask’, while inquire is reserved for uses meaning ‘make

a formal investigation’”. (see https://www.lexico.com/grammar/enquire-or-

inquire).

79

Saha v. Ram Kumar Saha [ILR 43 Cal 790] has been

stated by Mookerjee, J., thus:

“It is a well settled principle of interpretation that courts in

construing a statute will give much weight to the

interpretation put upon it, at the time of its enactment and

since, by those whose duty it has been to construe,

execute and apply it...I do not suggest for a moment that

such interpretation has by any means a controlling effect

upon the courts; such interpretation may, if occasion

arises, have to be disregarded for cogent and persuasive

reasons, and in a clear case of error, a court would

without hesitation refuse to follow such construction.”

61.The officer referred to in section 42 is given powers of entry, search,

seizure and arrest without warrant, with the safeguards that have been

pointed out hereinabove in this judgment. The first safeguard is that

such officer must have “reason to believe”, which as has been noted, is

different from mere “reason to suspect”. It is for this reason that such

officer must make an enquiry in connection with the contravention of the

provisions of this Act, for otherwise, even without such enquiry, mere

suspicion of the commission of an offence would be enough. It is in this

enquiry that he has to call for “information” under sub-clause (a), which

“information” can be given by any person and taken down in writing, as

is provided in section 42(1). Further, the information given must be for

the purpose of “satisfying” himself that there has been a contravention

of the provisions of this Act, which again goes back to the expression

“reason to believe” in section 42. This being the case, it is a little difficult

80

to accept Shri Lekhi’s argument that “enquiry” in section 67 is the same

as “investigation”, which is referred to in section 53. Section 53 states:

“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

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 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 other

department 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.”

62.“Investigation” is defined under the CrPC in section 2(h) as follows:

“(h) “investigation” includes all the proceedings under this

Code for the collection of evidence conducted by a police

officer or by any person (other than a Magistrate) who is

authorised by a Magistrate in this behalf;”

63.By virtue of section 2(xxix) of the NDPS Act, this definition becomes

applicable to the use of the expression “investigation” in section 53 of

the NDPS Act. It is important to notice that it is an inclusive definition, by

which, “evidence” is collected by a police officer or a person authorised

by the Magistrate. The “enquiry” that is made by a section 42 officer is

so that such officer may gather “information” to satisfy himself that there

is “reason to believe” that an offence has been committed in the first

place.

81

64.This becomes even clearer when section 52(3) of the NDPS Act is read.

Under section 52(3), every person arrested and article seized under

sections 41 to 44 shall be forwarded without unnecessary delay either

to the officer-in-charge of the nearest police station, who must then

proceed to “investigate” the case given to him, or to the officer

empowered under section 53 of the NDPS Act, which officer then

“investigates” the case in order to find out whether an offence has been

committed under the Act. It is clear, therefore, that section 67 is at an

antecedent stage to the “investigation”, which occurs after the

concerned officer under section 42 has “reason to believe”, upon

information gathered in an enquiry made in that behalf, that an offence

has been committed.

65.Equally, when we come to section 67(c) of the NDPS Act, the

expression used is “examine” any person acquainted with the facts and

circumstances of the case. The “examination” of such person is again

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 can, by no stretch of imagination, be equated to a “statement”

under section 161 of the CrPC, as is argued by Shri Lekhi, relying upon

Sahoo v. State of U.P. (1965) 3 SCR 86 (at page 88), which would

include the making of a confession, being a sub-species of “statement”.

82

66.The consequence of accepting Shri Lekhi’s argument flies in the face of

the fundamental rights contained in Articles 20(3) and 21, as well as the

scheme of the NDPS Act, together with the safeguards that have been

set out by us hereinabove. First and foremost, even according to Shri

Lekhi, a police officer, properly so-called, may be authorised to call for

information etc. under section 67, as he is an officer referred to in

section 42(1). Yet, while “investigating” an offence under the NDPS Act

i.e. subsequent to the collection of information etc. under section 67, the

same police officer will be bound by sections 160-164 of the CrPC,

together with all the safeguards mentioned therein – firstly, that the

person examined shall be bound to answer truly all questions relating to

such case put to him, other than questions which would tend to

incriminate him; secondly, the police officer is to reduce this statement

into writing and maintain a separate and true record of this statement;

thirdly, the statement made may be recorded by audio-video electronic

means to ensure its genuineness; and fourthly, a statement made by a

woman can only be made to a woman police officer or any woman

officer. Even after all these safeguards are met, no such statement can

be used at any inquiry or trial, except for the purpose of contradicting

such witness in cross-examination. In Tahsildar Singh v. State of U.P.,

1959 Supp (2) SCR 875, Subba Rao J., speaking for four out of six

learned Judges of this Court, had occasion to refer to the history of

83

section 162 of the CrPC. After setting out this history in some detail, the

learned Judge held:

“It is, therefore, seen that the object of the legislature

throughout has been to exclude the statement of a

witness made before the police during the investigation

from being made use of at the trial for any purpose, and

the amendments made from time to time were only

intended to make clear the said object and to dispel the

cloud cast on such intention. The Act of 1898 for the first

time introduced an exception enabling the said statement

reduced to writing to be used for impeaching the credit of

the witness in the manner provided by the Evidence Act.

As the phraseology of the exception lent scope to defeat

the purpose of the legislature, by the Amendment Act of

1923, the section was redrafted defining the limits of the

exception with precision so as to confine it only to

contradict the witness in the manner provided under

Section 145 of the Evidence Act. If one could guess the

intention of the legislature in framing the section in the

manner it did in 1923, it would be apparent that it was to

protect the accused against the user of the statements of

witnesses made before the police during investigation at

the trial presumably on the assumption that the said

statements were not made under circumstances inspiring

confidence. Both the section and the proviso intended to

serve primarily the same purpose i.e., the interest of the

accused.

(at pages 889 – 890)

xxx xxx xxx

The object of the main section as the history of its

legislation shows and the decided cases indicate is to

impose a general bar against the use of statement made

before the police and the enacting clause in clear terms

says that no statement made by any person to a police

officer or any record thereof, or any part of such statement

or record, be used for any purpose. The words are clear

and unambiguous. The proviso engrafts an exception on

the general prohibition and that is, the said statement in

writing may be used to contradict a witness in the manner

84

provided by Section 145 of the Evidence Act. We have

already noticed from the history of the section that the

enacting clause was mainly intended to protect the

interests of accused. At the stage of investigation,

statements of witnesses are taken in a haphazard

manner. The police officer in the course of his

investigation finds himself more often in the midst of an

excited crowd and babel of voices raised all round. In

such an atmosphere, unlike that in a court of law, he is

expected to hear the statements of witnesses and record

separately the statement of each one of them. Generally

he records only a summary of the laments which appear

to him to be relevant. These statements are, therefore

only a summary of what a witness says and very often

perfunctory. Indeed, in view of the aforesaid facts, there is

a statutory prohibition against police officers taking the

signature of the person making the statement, indicating

thereby that the statement is not intended to be binding on

the witness or an assurance by him that it is a correct

statement.

At the same time, it being the earliest record of the

statement of a witness soon after the incident, any

contradiction found therein would be of immense help to

an accused to discredit the testimony of a witness making

the statement. The section was, therefore, conceived in

an attempt to find a happy via media, namely, while it

enacts an absolute bar against the statement made

before a police officer being used for any purpose

whatsoever, it enables the accused to rely upon it for a

limited purpose of contradicting a witness in the manner

provided by Section 145 of the Evidence Act by drawing

his attention to parts of the statement intended for

contradiction. It cannot be used for corroboration of a

prosecution or a defence witness or even a court witness.

Nor can it be used for contradicting a defence or a court

witness. Shortly stated, there is a general bar against its

use subject to a limited exception in the interest of the

accused, and the exception cannot obviously be used to

cross the bar.”

(at pages 894 – 895)

85

67.Under section 163(1) of the CrPC, no inducement, threat or promise, as

has been mentioned in section 24 of the Evidence Act, can be made to

extort such statement from a person; and finally, if a confession is to be

recorded, it can only be recorded in the manner laid down in section

164 i.e. before a Magistrate, which statement is also to be recorded by

audio-video electronic means in the presence of the Advocate of the

person accused of an offence. This confession can only be recorded

after the Magistrate explains to the person making it that he is not

bound to make a confession and that, if he does so, it may be used as

evidence against him – see section 164(2) of the CrPC. The Magistrate

is then to make a memorandum at the foot of the record that he has, in

fact, warned the person that he is not bound to make such confession,

and that it may be used as evidence against him – see section 164(4) of

the CrPC. Most importantly, the Magistrate is empowered to administer

oath to the person whose statement is so recorded – see section 164(5)

of the CrPC.

68.It would be remarkable that if a police officer, properly so-called, were to

“investigate” an offence under the NDPS Act, all the safeguards

contained in sections 161 to 164 of the CrPC would be available to the

accused, but that if the same police officer or other designated officer

under section 42 were to record confessional statements under section

67 of the NDPS Act, these safeguards would be thrown to the winds, as

86

was admitted by Shri Lekhi in the course of his arguments. Even if any

such anomaly were to arise on a strained construction of section 67 as

contended for by Shri Lekhi, the alternative construction suggested by

the Appellants, being in consonance with fundamental rights, alone

would prevail, as section 67 would then have to be “read down” so as to

conform to fundamental rights.

69.Take, for example, an investigation conducted by the regular police

force of a State qua a person trafficking in ganja. If the same person

were to be apprehended with ganja on a subsequent occasion, this time

not by the State police force but by other officers for the same or similar

offence, the safeguards contained in sections 161-164 of the CrPC

would apply insofar as the first incident is concerned, but would not

apply to the subsequent incident. This is because the second time, the

investigation was not done by the State police force, but by other

officers. The fact situation mentioned in the aforesaid example would

demonstrate manifest arbitrariness in the working of the statute, leading

to a situation where, for the first incident, safeguards available under

the CrPC come into play because it was investigated by the local State

police, as opposed to officers other than the local police who

investigated the second transaction.

70.Take another example. If X & Y are part of a drug syndicate, and X is

apprehended in the State of Punjab by the local State police with a

87

certain quantity of ganja, and Y is apprehended in the State of

Maharashtra by officers other than the State police, again with a certain

quantity of ganja which comes from the same source, the investigation

by the State police in Punjab would be subject to safeguards contained

in the CrPC, but the investigation into the ganja carried by Y to

Maharashtra would be carried out without any such safeguards, owing

to the fact that an officer other than the local police investigated into the

offence. These anomalies are real and not imaginary, and if a statute is

so read as to give rise to such anomalies, it would necessarily have to

be struck down under Article 14 of the Constitution as being

discriminatory and manifestly arbitrary.

71.Further, the provisions of section 53A of the NDPS Act militate strongly

against Shri Lekhi’s argument. Section 53A states as follows:

“53A. Relevancy of statements under certain

circumstances.—(1) A statement made and signed by a

person before any officer empowered under section 53 for

the investigation of offences, during the course of any

inquiry or proceedings by such officer, shall be relevant for

the purpose of proving, in any prosecution for an offence

under this Act, the truth of the facts which it contains,—

(a) when the person who made the statement is dead or

cannot be found, or is incapable of giving evidence, or is

kept out of the way by the adverse party, or whose

presence cannot be obtained without an amount of delay

or expense which, under the circumstances of the case,

the court considers unreasonable; or

(b) when the person who made the statement is examined

as a witness in the case before the court and the court is

88

of the opinion that, having regard to the circumstances of

the case, the statement should be admitted in evidence in

the interest of justice.

(2) The provisions of sub-section (1) shall, so far as may

be, apply in relation to any proceedings under this Act or

the rules or orders made thereunder, other than a

proceeding before a court, as they apply in relation to a

proceeding before a court.”

72.If Shri Lekhi’s argument were correct, that a confessional statement

made under section 67 is sufficient as substantive evidence to convict

an accused under the NDPS Act, section 53A would be rendered otiose.

Sections 53 and 53A of the NDPS Act, when read together, would make

it clear that section 53A is in the nature of an exception to sections 161,

162 and 172 of the CrPC. This is for the reason that section 53(1), when

it invests certain officers or classes of officers with the power of an

officer in charge of a police station for investigation of offences under

the NDPS Act, refers to Chapter XII of the CrPC, of which sections 161,

162 and 172 are a part. First and foremost, under section 162(1) of the

CrPC, statements that are made in the course of investigation are not

required to be signed by the person making them – under section 53A

they can be signed by the person before an officer empowered under

section 53. Secondly, it is only in two circumstances [under section

53A(1)(a) and (b)] that such a statement is made relevant for the

purpose of proving an offence against the accused: it is only if the

person who made the statement is dead, cannot be found, is incapable

89

of giving evidence; or is kept out of the way by the adverse party, or

whose presence cannot be obtained without delay or expense which

the court considers unreasonable, that such statement becomes

relevant. Otherwise, if the person who made such a statement is

examined as a witness, and the court thinks that in the interest of justice

such statement should be made relevant and does so, then again, such

statement may become relevant. None of this would be necessary if

Shri Lekhi’s argument were right, that a confessional statement made

under section 67 – not being bound by any of these constraints – would

be sufficient to convict the accused.

73.Shri Lekhi then relied strongly upon the recent Constitution Bench

judgment in Mukesh Singh (supra). This judgment concerned itself with

the correctness of the decision in Mohan Lal v. State of Punjab, (2018)

17 SCC 627, which had taken the view that in case the investigation is

conducted by the very police officer who is himself the complainant, the

trial becomes vitiated as a matter of law, and the accused is entitled to

acquittal. In deciding this question, the Constitution Bench of this Court

referred to various earlier judgments, in particular, the judgment in State

v. V. Jayapaul (2004) 5 SCC 223. After setting out the relevant

provisions of the CrPC, the Court concluded:

“80…Thus, under the scheme of Cr.P.C., it cannot be said

that there is a bar to a police officer receiving information

for commission of a cognizable offence, recording he

90

same and then investigating it. On the contrary, Sections

154, 156 and 157 permit the officer in charge of a police

station to reduce the information of commission of a

cognizable offence in writing and thereafter to investigate

the same.”

74.The Court then set out the provisions of the NDPS Act and concluded:

“89. Section 52 of the NDPS Act mandates that any officer

arresting a person under Sections 41, 42, 43 or 44 to

inform the person arrested of the grounds for such arrest.

Sub-section 2 of Section 52 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. As per sub-section 3 of Section 52,

every person arrested and article seized under sub-

section 2 of Section 41, 42, 43, or 44 shall be forwarded

without unnecessary delay to the officer in charge of the

nearest police station, or the officer empowered under

section 53.

90. That thereafter the investigation is to be conducted by

the officer in charge of a police station.”

(emphasis supplied)

75.The Court then went on to state:

“93. Section 53 does not speak that all those officers to be

authorised to exercise the powers of an officer in charge

of a police station for the investigation of the offences

under the NDPS Act shall be other than those officers

authorised under Sections 41, 42, 43, and 44 of the NDPS

Act. It appears that the legislature in its wisdom has never

thought that the officers authorised to exercise the powers

under Sections 41, 42, 43 and 44 cannot be the officer in

charge of a police station for the investigation of the

offences under the NDPS Act.

94. Investigation includes even search and seizure. As the

investigation is to be carried out by the officer in charge of

a police station and none other and therefore purposely

Section 53 authorises the Central Government or the

State Government, as the case may be, invest any officer

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of the department of drugs control, revenue or excise or

any other department or any class of such officers with

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

the investigation of offences under the NDPS Act.

95. Section 42 confers power of entry, search, seizure and

arrest without warrant or authorisation to any such officer

as mentioned in Section 42 including any such officer of

the revenue, drugs control, excise, police or any other

department of a State Government or the Central

Government, as the case may be, and as observed

hereinabove, Section 53 authorises the Central

Government to invest any officer of the department of

central excise, narcotics, customs, revenue intelligence or

any other department of the Central Government….or any

class of such officers with the powers of an officer in

charge of a police station for the investigation. Similar

powers are with the State Government. The only change

in Sections 42 and 53 is that in Section 42 the word

“police” is there, however in Section 53 the word “police”

is not there. There is an obvious reason as for police such

requirement is not warranted as he always can be the

officer in charge of a police station as per the definition of

an “officer in charge of a police station” as defined under

the Cr.P.C.”

76.On the basis of this judgment, Shri Lekhi argued that “investigation”

under the NDPS Act includes search and seizure which is to be done by

a section 42 officer and would, therefore, begin from that stage.

77.In this connection, it is important to advert first to the decision of this

Court in H.N. Rishbud and Inder Singh v. State of Delhi (1955) 1

SCR 1150. This judgment explains in great detail as to what exactly the

scope of “investigation” is under the CrPC. It states:

“In order to ascertain the scope of and the reason for

requiring such investigation to be conducted by an officer

of high rank (except when otherwise permitted by a

92

Magistrate), it is useful to consider what “investigation”

under the Code comprises. Investigation usually starts on

information relating to the commission of an offence given

to an officer in charge of a police station and recorded

under Section 154 of the Code. If from information so

received or otherwise, the officer in charge of the police

station has reason to suspect the commission of an

offence, he or some other subordinate officer deputed by

him, has to proceed to the spot to investigate the facts

and circumstances of the case and if necessary to take

measures for the discovery and arrest of the offender.

Thus investigation primarily consists in the ascertainment

of the facts and circumstances of the case. By definition, it

includes “all the proceedings under the Code for the

collection of evidence conducted by a police officer”. For

the above purposes, the investigating officer is given the

power to require before himself the attendance of any

person appearing to be acquainted with the

circumstances of the case. He has also the authority to

examine such person orally either by himself or by a duly

authorised deputy. The officer examining any person in

the course of investigation may reduce his statement into

writing and such writing is available, in the trial that may

follow, for use in the manner provided in this behalf in

Section 162. Under Section 155 the officer in charge of a

police station has the power of making a search in any

place for the seizure of anything believed to be necessary

for the purpose of the investigation. The search has to be

conducted by such officer in person. A subordinate officer

may be deputed by him for the purpose only for reasons

to be recorded in writing if he is unable to conduct the

search in person and there is no other competent officer

available. The investigating officer has also the power to

arrest the person or persons suspected of the commission

of the offence under Section 54 of the Code. A police

officer making an investigation is enjoined to enter his

proceedings in a diary from day-to-day. Where such

investigation cannot be completed within the period of 24

hours and the accused is in custody he is enjoined also to

send a copy of the entries in the diary to the Magistrate

concerned. It is important to notice that where the

investigation is conducted not by the officer in charge of

the police station but by a subordinate officer (by virtue of

93

one or other of the provisions enabling him to depute such

subordinate officer for any of the steps in the

investigation) such subordinate officer is to report the

result of the investigation to the officer in charge of the

police station. If, upon the completion of the investigation

it appears to the officer in charge of the police station that

there is no sufficient evidence or reasonable ground, he

may decide to release the suspected accused, if in

custody, on his executing a bond. If, however, it appears

to him that there is sufficient evidence or reasonable

ground, to place the accused on trial, he is to take the

necessary steps therefore under Section 170 of the Code.

In either case, on the completion of the investigation he

has to submit a report to the Magistrate under Section 173

of the Code in the prescribed form furnishing various

details. Thus, under the Code investigation consists

generally of the following steps: (1) Proceeding to the

spot, (2) Ascertainment of the facts and circumstances of

the case, (3) Discovery and arrest of the suspected

offender, (4) Collection of evidence relating to the

commission of the offence which may consist of (a) the

examination of various persons (including the accused)

and the reduction of their statements into writing, if the

officer thinks fit, (b) the search of places or seizure of

things considered necessary for the investigation and to

be produced at the trial, and (5) Formation of the opinion

as to whether on the material collected there is a case to

place the accused before a Magistrate for trial and if so

taking the necessary steps for the same by the filing of a

charge-sheet under Section 173. The scheme of the Code

also shows that while it is permissible for an officer in

charge of a police station to depute some subordinate

officer to conduct some of these steps in the investigation,

the responsibility for every one of these steps is that of the

person in the situation of the officer in charge of the police

station, it having been clearly provided in Section 168 that

when a subordinate officer makes an investigation he

should report the result to the officer in charge of the

police station. It is also clear that the final step in the

investigation, viz. the formation of the opinion as to

whether or not there is a case to place the accused on

trial is to be that of the officer in charge of the police

station. There is no provision permitting delegation thereof

94

but only a provision entitling superior officers to supervise

or participate under Section 551.”

(at pages 1156-1158)

This statement of the law was reiterated in State of Madhya Pradesh

v. Mubarak Ali (1959) Supp. 2 SCR 201 at 211, 212.

78.It is important to remember that an officer-in-charge of a police station,

when he investigates an offence, begins by gathering information, in the

course of which he may collect evidence relating to the commission of

the offence, which would include search and seizure of things in the

course of investigation, to be produced at the trial. Under the scheme of

the NDPS Act, it is possible that the same officer who is authorised

under section 42 is also authorised under section 53. In point of fact,

Notification S.O. 822(E) issued by the Ministry of Finance (Department

of Revenue), dated 14.11.1985, empowered the following officers under

section 42 and 67 of the NDPS Act:

“S.O. 822(E).-In exercise of the powers conferred by sub-

section (1) of section 42 and section 67 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (61 of

1985), the Central Government hereby empowers the

officers of and above the rank of Sub-Inspector in the

department of Narcotics and of and above the rank of

Inspector in the departments of Central Excise, Customs

and Revenue Intelligence and in Central Economic

Intelligence Bureau and Narcotics Control Bureau to

exercise of the powers and perform the duties specified in

section 42 within the area of their respective jurisdiction

and also authorises the said officers to exercise the

powers conferred upon them under section 67.”

95

79.Notification S.O.823(E), also dated 14.11.1985, the Ministry of Finance

(Department of Revenue), empowered the following officers under

section 53(1) of the NDPS Act:

“S.O. 823(E).-In exercise of the powers conferred by sub-

section (1) of section 53 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (61 of 1985), the

Central Government, after consultation with all the State

Governments hereby invests the officers of and above the

rank of Inspector in the Departments of Central Excise,

Narcotics, Customs and Revenue Intelligence and in

Central Economic Intelligence Bureau and Narcotics

Control Bureau with the powers specified in sub-section

(1) of that section.”

80.These notifications indicate that officers of and above the rank of

Inspector in the Departments of Central Excise, Customs, Revenue

Intelligence, Central Economic Intelligence Bureau and Narcotics

Control Bureau were authorised to act under both sections 42 and 53.

These notifications dated 14.11.1985 were superseded by the following

notifications issued by the Ministry of Finance (Department of Revenue)

on 30.10.2019:

“S.O. 3901(E).—In exercise of the powers conferred by

sub-section (1) of section 42 and section 67 of the

Narcotic Drugs and Psychotropic Substances Act, 1985

(61 of 1985), and in supersession of the notification of the

Government of India in the Ministry of Finance,

Department of Revenue number S.O. 822(E), dated the

14th November, 1985, published in the Gazette of India,

Extraordinary, Part II, Section 3, Sub-section (ii), except

as respects things done or omitted to be done before such

supersession the Central Government hereby empowers

the officers of and above the rank of sub-inspector in

Central Bureau of Narcotics and Junior Intelligence Officer

96

in Narcotics Control Bureau and of and above the rank of

inspectors in the Central Board of Indirect Taxes and

Customs, Directorate of Revenue Intelligence, Central

Economic Intelligence Bureau to exercise the powers and

perform the duties specified in section 42 within the area

of their respective jurisdiction and also authorise the said

officers to exercise the powers conferred upon them

under section 67.”

“S.O. 3899(E).—In exercise of the powers conferred by

sub-section (1) of section 53 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (61 of 1985) and in

supersession of the notification of the Government of

India in the Ministry of Finance, Department of Revenue

number S.O. 823(E), dated the 14th November, 1985,

published in the Gazette of India, Extraordinary, Part II,

Section 3, Sub-section (ii), except as respects things done

or omitted to be done before such supersession, the

Central Government after consultation with all the State

Governments hereby invests the officers of and above the

rank of inspectors in the Central Board of Indirect Taxes

and Customs, Central Bureau of Narcotics, Directorate of

Revenue Intelligence, Central Economic Intelligence

Bureau and of and above the rank of Junior Intelligence

Officer in Narcotics Control Bureau with the powers

specified in sub-section (1) of that section.”

81.Thus, even the new notifications dated 30.10.2019 indicate that the

powers under sections 42 and 53 of the NDPS Act are invested in

officers of and above the rank of inspectors in the Central Board of

Indirect Taxes and Customs, Central Bureau of Narcotics, Directorate of

Revenue Intelligence, Central Economic Intelligence Bureau and of and

above the rank of Junior Intelligence Officer in Narcotics Control

Bureau.

97

82.The observations of the Constitution Bench in Mukesh Singh (supra)

are, therefore, to the effect that the very person who initiates the

detection of crime, so to speak, can also investigate into the offence –

there being no bar under the NDPS Act for doing so. This is a far cry

from saying that the scheme of the NDPS Act leads to the conclusion

that a section 67 confessional statement, being in the course of

investigation, would be sufficient to convict a person accused of an

offence.

83.As has been pointed out hereinabove, there could be a situation in

which a section 42 officer, as designated, is different from a section 53

officer, in which case, it would be necessary for the section 42 officer to

first have “reason to believe” that an offence has been committed, for

the purpose of which he gathers information, which is then presented

not only to his superior officer under section 42(2), but also presented to

either an officer-in-charge of a police station, or to an officer designated

under section 53 – see section 52(3). This was clearly recognised by

the Constitution Bench in Mukesh Singh (supra) when it spoke of the

requirements under section 52(2) and (3) being met, and “investigation”

being conducted thereafter by the officer in charge of a police station.

84.Take a hypothetical case where an officer is designated under section

42, but there is no designation of any officer under section 53 to

conduct investigation. In such a case, the section 42 officer would not

98

conduct any investigation at all – he would only gather facts which give

him “reason to believe” that an offence has been committed, in

pursuance of which he may use the powers given to him under section

42. After this, for “investigation” into the offence under the NDPS Act,

the only route in the absence of a designated officer under section 53,

would be for him to present the information gathered to an officer-in-

charge of a police station, who would then “investigate” the offence

under the NDPS Act.

85.Also, we must bear in mind the fact that the Constitution Bench’s focus

was on a completely different point, namely, whether the complainant

and the investigator of an offence could be the same. From the point of

view of this question, section 53A of the NDPS Act is not relevant and

has, therefore, not been referred to by the Constitution Bench. As has

been pointed out by us hereinabove, in order to determine the

questions posed before us, section 53A becomes extremely important,

and would, as has been pointed out by us, be rendered otiose if Shri

Lekhi’s submission, that a statement under section 67 is sufficient to

convict an accused of an offence under the Act, is correct. For all these

reasons, we do not accede either to Shri Puneet Jain’s argument to

refer Mukesh Singh (supra) to a larger Bench for reconsideration, or to

Shri Lekhi’s argument based on the same judgment, as the point

99

involved in Mukesh Singh (supra) was completely different from the

one before us.

WHETHER AN OFFICER DESIGNATED UNDER SECTION 53 OF

THE NDPS ACT CAN BE SAID TO BE A POLICE OFFICER

86.We now come to the question as to whether the officer designated

under section 53 of the NDPS Act can be said to be a “police officer” so

as to attract the bar contained in section 25 of the Evidence Act.

87.The case law on the subject of who would constitute a “police officer” for

the purpose of section 25 of the Evidence Act begins with the judgment

of this Court in Barkat Ram (supra). In this judgment, by a 2:1 majority,

this Court held that a Customs Officer under the Land Customs Act,

1924 is not a “police officer” within the meaning of section 25 of the

Evidence Act. The majority judgment of Raghubar Dayal, J. first set out

section 9 of the Land Customs Act as follows:

““The provisions of the Sea Customs Act, 1878 (VIII of

1878), which are specified in the Schedule, together with

all notifications, orders, rules or forms issued, made or

prescribed, thereunder, shall, so far as they are

applicable, apply for the purpose of the levy of duties of

land customs under this Act in like manner as they apply

for the purpose of the levy of duties of customs on goods

imported or exported by sea.”

Among the sections of the Sea Customs Act made

applicable by sub-s. (1) of s. 9 of the Land Customs Act,

are included all the sections in Chapters XVI and XVII of

the Sea Customs Act viz. ss.167 to 193.”

(at page 342)

88.The Court then examined the Police Act, 1861, and found:

100

“The Police Act, 1861 (Act 5 of 1861), is described as an

Act for the regulation of police, and is thus an Act for the

regulation of that group of officers who come within the

word ‘police’ whatever meaning be given to that word. The

preamble of the Act further says: ‘whereas it is expedient

to re-organise the police and to make it a more efficient

instrument for the prevention and detection of crime, it is

enacted as follows’. This indicates that the police is the

instrument for the prevention and detection of crime which

can be said to be the main object and purpose of having

the police. Sections 23 and 25 lay down the duties of the

police officers and Section 20 deals with the authority they

can exercise. They can exercise such authority as is

provided for a police officer under the Police Act and any

Act for regulating criminal procedure. The authority given

to police officers must naturally be to enable them to

discharge their duties efficiently. Of the various duties

mentioned in s. 23, the more important duties are to

collect and communicate intelligence affecting the public

peace, to prevent the commission of offences and public

nuisances and to detect and bring offenders to justice and

to apprehend all persons whom the police officer is legally

authorised to apprehend. It is clear, therefore, in view of

the nature of the duties imposed on the police officers, the

nature of the authority conferred and the purpose of the

Police Act, that the powers which the police officers enjoy

are powers for the effective prevention and detection of

crime in order to maintain law and order.

The powers of Customs Officers are really not for such

purpose. Their powers are for the purpose of checking the

smuggling of goods and the due realisation of customs

duties and to determine the action to be taken in the

interests of the revenues of the country by way of

confiscation of goods on which no duty had been paid and

by imposing penalties and fines.

Reference to s.9(1) of the Land Customs Act may be

usefully made at this stage. It is according to the

provisions of this sub-section that the provisions of the

Sea Customs Act and the orders, Rules etc. prescribed

thereunder, apply for the purpose of levy of duties of land

customs under the Land Customs Act in like manner as

101

they apply for the purpose of levy of duties of customs on

goods imported or exported by sea. This makes it clear

that the provisions conferring various powers on the Sea

Customs Officers are for the purpose of levying and

realisation of duties of customs on goods and that those

powers are conferred on the Land Customs Officers also

for the same purpose. Apart from such an expression in

Section 9(1) of the Land Customs Act, there are good

reasons in support of the view that the powers conferred

on the Customs Officers are different in character from

those of the police officers for the detection and

prevention of crime and that the powers conferred on

them are merely for the purpose of ensuring that dutiable

goods do not enter the country without payment of duty

and that articles whose entry is prohibited are not brought

in. It is with respect to the detecting and preventing of the

smuggling of goods and preventing loss to the Central

Revenues that Customs Officers have been given the

power to search the property and person and to detain

them and to summon persons to give evidence in an

enquiry with respect to the smuggling of goods.

The preamble of the Sea Customs Act says: “Whereas it

is expedient to consolidate and amend the law relating to

the levy of Sea Customs-duties”. Practically, all the

provisions of the Act are enacted to achieve this object.”

(pages 343-344)

“The Customs Officer, therefore, is not primarily

concerned with the detection and punishment of crime

committed by a person, but is mainly interested in the

detection and prevention of smuggling of goods and

safeguarding the recovery of customs duties. He is more

concerned with the goods and customs duty, than with the

offender.”

(page 345)

(emphasis supplied)

89.In an important passage, the Court then concluded that since the

expression “police officer” is not defined, it cannot be construed in a

102

narrow way, but must be construed in a “wide and popular sense”, as

follows:

“There seems to be no dispute that a person who is a

member of the police force is a police officer. A person is a

member of the police force when he holds his office under

any of the Acts dealing with the police. A person may be a

member of the police in any other country. Officers of the

police in the erstwhile Indian States and an officer of the

police of a foreign country have been held in certain

decided cases to be police officers within the meaning of

Section 25 of the Evidence Act. There is no denying that

these persons are police officers and are covered by that

expression in Section 25. That expression is not restricted

to the police-officers of the police forces enrolled under

the Police Act of 1861. The word ‘police is defined in S.1

and is said to include all persons who shall be enrolled

under the Act. No doubt this definition is not restrictive, as

it uses the expression ‘includes’, indicating thereby that

persons other than those enrolled under that Act can also

be covered by the word “police”.

Sections 17 and 18 of the Police Act provide for the

appointment of special police officers who are not enrolled

under the Act but are appointed for special occasions and

have the same powers, privileges and protection and are

liable to perform the same duties as the ordinary officers

of the police.

Section 21 also speaks of officers who are not enrolled as

police officers and in such categories mentions hereditary

or other village police officers.

The words ‘police officer’ are therefore not to be

construed in a narrow way, but have to be construed in a

wide and popular sense, as was remarked

in R. v. Hurribole [ILR 1 Cal 207] where a Deputy

Commissioner of police who was actually a police officer

and was merely invested with certain Magisterial powers

was rightly held to be a police officer within the meaning

of that expression in Section 25 of the Evidence Act.”

(at pages 347-348)

103

90.The Court then held, in a significant passage, that a confession made to

any member of the police – of whatever rank – is interdicted by section

25 of the Evidence Act, as follows:

“The police officer referred to in Section 25 of the

Evidence Act, need not be the officer investigating into

that particular offence of which a person is subsequently

accused. A confession made to him need not have been

made when he was actually discharging any police duty.

Confession made to any member of the police, of

whatever rank and at whatever time, is inadmissible in

evidence in view of Section 25.”

(at page 349)

91.The Court then found:

“The powers of search etc., conferred on the former are,

as was observed in Thomas Dana’s case [(1959) Supp (1)

SCR 274, 289] of a limited character and have a limited

object of safeguarding the revenues of the State.

It is also to be noticed that the Sea Customs Act itself

refers to police officer in contradistinction to the Customs

Officer. Section 180 empowers a police officer to seize

articles liable to confiscation under the Act, on suspicion

that they had been stolen. Section 184 provides that the

officer adjudging confiscation shall take and hold

possession of the thing confiscated and every officer of

police, on request of such officer, shall assist him in taking

and holding such possession. This leaves no room for

doubt that a Customs Officer is not an officer of the Police.

It is well-settled that the Customs Officer, when they act

under the Sea Customs Act to prevent the smuggling of

goods by imposing confiscation and penalties, act

judicially: Leo Roy Frey v. Superintendent District Jail,

Amritsar [1958 SCR 822]; Shewpujanrai Indrasanrai

Ltd. v. Collector of Customs [1959 SCR 821]. Any enquiry

under Section 171-A is deemed to be a judicial

proceeding within the meaning of Sections 193 and 228

104

IPC, in view of its sub-section (4). It is under the authority

given by this section that the Customs Officers can take

evidence and record statements. If the statement which is

recorded by a Customs Officer in the exercise of his

powers under this section be an admission of guilt, it will

be too much to say that that statement is a confession to

a police officer, as a police officer never acts judicially and

no proceeding before a police officer is deemed, under

any provision so far as we are aware, to be a judicial

proceeding for the purpose of Sections 193 and 228 IPC,

or for any purpose. It is still less possible to imagine that

the legislature would contemplate such a person, whose

proceedings are judicial for a certain purpose, to be a

person whose record of statements made to him could be

suspect if such statement be of a confessional nature.”

(at page 350-351)

92.The majority concluded:

“We make it clear, however, that we do not express any

opinion on the question whether officers of departments

other than the police, on whom the powers of an Officer-

in-charge of a Police Station under Chapter XIV of the

Code of Criminal Procedure, have been conferred, are

police officers or not for the purpose of Section 25 of the

Evidence Act, as the learned counsel for the appellant did

not question the correctness of this view for the purpose

of this appeal.”

(at page 352)

93.Subba Rao, J. dissented. He made a neat division of “police officer” into

three categories as follows:

“It may mean any one of the following categories of

officers: (i) a police officer who is a member of the police

force constituted under the Police Act; (ii) though not a

member of the police force constituted under the Police

Act, an officer who by statutory fiction is deemed to be a

police officer in charge of a police station under the Code

of Criminal Procedure; and (iii) an officer on whom a

statute confers powers and imposes duties of a police

officer under the Code of Criminal Procedure, without

105

describing him as a police officer or equating him by

fiction to such an officer.”

(at page 355)

94.He then referred to the “high purpose” of section 25 as follows:

“It is, therefore, clear that Section 25 of the Evidence Act

was enacted to subserve a high purpose and that is to

prevent the police from obtaining confessions by force,

torture or inducement. The salutary principle underlying

the section would apply equally to other officers, by

whatever designation they may be known, who have the

power and duty to detect and investigate into crimes and

is for that purpose in a position to extract confessions

from the accused.”

(at page 357)

“It is not the garb under which they function that matters,

but the nature of the power they exercise or the character

of the function they perform is decisive. The question,

therefore, in each case is, does the officer under a

particular Act exercise the powers and discharge the

duties of prevention and detection of crime? If he does, he

will be a police officer.”

(at page 358)

95.After referring to various High Court judgments which contained the

“broad view” – i.e. Bombay, Calcutta and Madras, which would include

all three classes of police officers referred to, as against the “narrow

view” of the Patna High Court, where only a person who is designated

as a police officer under the Police Act, 1861 was accepted to be a

police officer under section 25 of the Evidence Act, Subba Rao, J., then

finally concluded that, given the functional test and the object of section

25, a customs officer would be a “police officer” properly so called.

106

96.(1) The majority view in this judgment first emphasised the point that the

Land Customs Act, 1924 and the Sea Customs Act, 1878 were statutes

primarily concerned with the levy of duties of customs, and ancillary to

this duty, officers designated in those Acts are given certain powers to

check smuggling of goods for due realisation of customs duties. In a

significant sentence, the Court, therefore, stated that a customs officer

is more concerned with the goods and customs duty than with the

offender. (2) The persons who are not enrolled as “police” under the

Police Act, 1861, would be included as “police” under the inclusive

definition contained in that Act, leading to the acceptance of the “broad

view” and rejection of the “narrow view” of the meaning of “police

officer”. (3) The protection of section 25 of the Evidence Act is very

wide, and applies to a confession made to any member of the police

whatever his rank, and at whatever time it is made, whether before or

after being accused of an offence. (4) That the powers of search,

seizure, etc. that are conferred under the Land Customs Act are of a

limited character, for the limited object of safeguarding the revenues of

the State. (5) That section 171A of the Sea Customs Act, 1878 which

empowers the customs officer to summon a person to give evidence, or

produce a document in an enquiry which he makes, is a judicial enquiry

– as a result, a customs officer can never be said to be a police officer

as a police officer never acts judicially. (6) The precise question with

107

which we are concerned in this case, namely, whether officers of

departments other than the police on whom the powers of an officer-in-

charge of a police station under Chapter XIV of the CrPC have been

conferred are police officers within the meaning of section 25 of the

Evidence Act, was expressly left open.

97.In Raja Ram Jaiswal (supra), this time a majority of 2:1 of this Court

held that a confession made to an Excise Inspector under the Bihar and

Orissa Excise Act of 1915, would be a confession made to a police

officer for the purpose of section 25 of the Evidence Act. The majority

judgment of Mudholkar, J. referred to Barkat Ram (supra) and held:

“It has, however, been held in a large number of cases,

including the one decided by this court, The State of

Punjab v. Barkat Ram [(1962) 3 SCR p. 338] that the

words “Police Officer” to be found in Section 25 of the

Evidence Act are not to be construed in a narrow way but

have to be construed in a wide and popular sense. Those

words, according to this Court, are however not to be

construed in so wide a sense as to include persons on

whom only some of the powers exercised by the police

are conferred.”

(page 761)

98.Barkat Ram (supra) was again referred to, stating that the question

which was before the Court was expressly left open by the majority in

that case, and it is precisely this question that arose in this case – see

page 762. The Court then held:

“It is precisely this question which falls for consideration in

the present appeal. For, under Section 78(3) of the Bihar

and Orissa Excise Act, 1915 (2 of 1915) an Excise Officer

108

empowered under Section 77, sub-section (2) of that Act

shall, for the purpose of Section 156 of the Code of

Criminal Procedure be deemed to be an officer in charge

of a police station with respect to the area to which his

appointment as an Excise Officer extends. Sub-section (1)

of Section 77 empowers the Collector of Excise to

investigate without the order of a Magistrate any offence

punishable under the Excise Act committed within the

limits of his jurisdiction. Sub-section (2) of that section

provides that any other Excise Officer specially

empowered behalf in this by the State Government in

respect of all or any specified class of offences punishable

under the Excise Act may, without the order of a

Magistrate, investigate any such offence which a court

having jurisdiction within the local area to which such

officer is appointed would have power to enquire into or

try under the aforesaid provisions. By virtue of these

provisions the Lieutenant Governor of Bihar and Orissa by

Notification 470-F dated 15-1-1919 has specially

empowered Inspectors of Excise and Sub-Inspectors of

Excise to investigate any offence punishable under the

Act. It is not disputed before us that this notification is still

in force. By virtue of the provisions of Section 92 the Act it

shall have effect as if enacted in the Act. It would thus

follow that an Excise Inspector or Sub-Inspector in the

State of Bihar shall be deemed to be an officer in charge

of a police station with respect to the area to which he is

appointed and is in that capacity entitled to investigate

any offence under the Excise Act within that area without

the order of Magistrate. Thus he can exercise all the

powers which an officer in charge of a police station can

exercise under Chapter XIV of the Code of Criminal

Procedure. He can investigate into offences, record

statements of the persons questioned by him, make

searches, seize any articles connected with an offence

under the Excise Act, arrest an accused person, grant him

bail, send him up for trial before a Magistrate, file a

charge-sheet and so on. Thus his position in so far as

offences under the Excise Act committed within the area

to which his appointment extends are concerned is no

different from that of an officer in charge of a police

station. As regards these offences not only is he charged

with the duty of preventing their commission but also with

109

their detection and is for these purposes empowered to

act in all respects as an officer in charge of a police

station. No doubt unlike an officer in charge of a police

station he is not charged with the duty of the maintenance

of law and order nor can he exercise the powers of such

officer with respect to offences under the general law or

under any other special laws. But all the same, in so far

as offences under the Excise Act are concerned, there is

no distinction whatsoever in the nature of the powers he

exercises and those which a police officer exercises in

relation to offences which it is his duty to prevent and

bring to light. It would be logical, therefore, to hold that a

confession recorded by him during an investigation into an

excise offence cannot reasonably be regarded as

anything different from a confession to a police officer.

For, in conducting the investigation he exercises the

powers of a police officer and the act itself deems him to

be a police officer, even though he does not belong to the

police force constituted under the Police Act. It has been

held by this court that the expression “police officer” in

Section 25 of the Evidence Act is not confined to persons

who are members of the regularly constituted police force.

The position of an Excise Officer empowered under

Section 77(2) of the Bihar and Orissa Excise Act is not

analogous to that of a Customs Officer for two reasons.

One is that the Excise Officer, does not exercise any

judicial powers just as the Customs Officer does under the

Sea Customs Act, 1878. Secondly, the Customs Officer is

not deemed to be an officer in charge of a police station

and therefore can exercise no powers under the Code of

Criminal Procedure and certainly not those of an officer in

charge of a police station. No doubt, he too has the power

to make a search, to seize articles suspected to have

been smuggled and arrest persons suspected of having

committed an offence under the Sea Customs Act. But

that is all. Though he can make an enquiry, he has no

power to investigate into an offence under Section 156 of

the Code of Criminal Procedure. Whatever powers he

exercises are expressly set out in the Sea Customs Act.

Though some of those set out in Chapter XVII may be

analogous to those of a police officer under the Code of

Criminal Procedure they are not identical with those of a

police officer and are not derived from or by reference to

110

the Code. In regard to certain matters, he does not

possess powers even analogous to those of a Police

Officer. Thus he is not entitled to submit a report to a

Magistrate under Section 190 of the Code of Criminal

Procedure with a view that cognizance of the offence be

taken by the Magistrate. Section 187(A) of the Sea

Customs Act specially provides that cognizance of an

offence under the Sea Customs Act can be taken only

upon a complaint in writing made by the Customs Officers

or other officer of the customs not below the rank of an

Assistant Collector of Customs authorised in this behalf by

the Chief Customs Officer.

It may well be that a statute confers powers and impose

duties on a public servant, some of which are analogous

to those of a police officer. But by reason of the nature of

other duties which he is required to perform he may be

exercising various other powers also. It is argued on

behalf of the State that where such is the case the mere

conferral of some only of the powers of a police officer on

such a person would not make him a police officer and,

therefore, what must be borne in mind is the sum total of

the powers which he enjoys by virtue of his office as also

the dominant purpose for which he is appointed. The

contention thus is that when an officer has to perform a

wide range of duties and exercise correspondingly a wide

range of powers, the mere fact that some of the powers

which the statute confers upon him are analogous to or

even identical with those of a police officer would not

make him a police officer and, therefore, if such an officer

records a confession it would not be hit by Section 25 of

the Evidence Act. In our judgment what is pertinent to

bear in mind for the purpose of determining as to who can

be regarded a “police officer” for the purpose of this

provision is not the totality of the powers which an officer

enjoys but the kind of powers which the law enables him

to exercise. The test for determining whether such a

person is a “police officer” for the purpose of Section 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 police station establish a direct or

substantial relationship with the prohibition enacted by

111

Section 25, that is, the recording of a confession. In our

words, the test would be whether the powers are such as

would to facilitate the obtaining by him of a confession

from a suspect or 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. These questions may perhaps be relevant for

consideration where the powers of the police officer

conferred upon him are of a very limited character and are

not by themselves sufficient to facilitate the obtaining by

him of a confession.

(at pages 762-766)

(emphasis supplied)

99.In a significant sentence, the Court held:

“It is the power of investigation which establishes a direct

relationship with the prohibition enacted in Section 25.”

(at page 768)

100.After referring to the object sought to be achieved by section 25, the

Court went on to hold:

“This provision was thus enacted to eliminate from

consideration confessions made to an officer who, by

virtue of his position, could extort by force, torture or

inducement a confession. An Excise Officer acting under

Section 78(3) would be in the same position as an Officer

in charge of a police station making an investigation under

Chapter XIV of the Code of Criminal Procedure. He would

likewise have the same opportunity of extorting a

confession from a suspect. It is, therefore, difficult to draw

a rational distinction between a confession recorded by a

police officer strictly so called and recorded by an Excise

Officer who is deemed to be a police officer.”

(at page 769)

101.The Court abjured shortcuts to obtaining convictions under the Act as

follows:

112

“We agree with the learned Judge that by and large it is

the duty of detection of offences and of bringing offenders

to justice, which requires an investigation to be made, that

differentiates police officers from private individuals or

from other agencies of State. Being concerned with the

investigation, there is naturally a desire on the part of a

police officer to collect as much evidence as possible

against a suspected offender apprehended by him and in

his zeal to do so he is apt to take recourse to an easy

means, that is, of obtaining a confession by using his

position and his power over the person apprehended by

him.”

(at page 776)

102.The majority ended the judgment by stating:

“There is one more reason also why the confession made

to an Excise Sub-Inspector must be excluded, that is, it is

a statement made during the course of investigation to a

person who exercises the powers of an officer in charge

of a police station. Such statement is excluded from

evidence by Section 162 of the Code of Criminal

Procedure except for the purpose of contradiction.

Therefore, both by Section 25 of the Evidence Act as well

as by Section 162 CrPC the confession of the appellant is

inadmissible in evidence. If the confession goes, then

obviously the conviction of the appellant cannot be

sustained. Accordingly we allow the appeal and set aside

the conviction and sentences passed on the appellant.”

(page 778-779)

103.Raghubar Dayal, J. dissented. His dissent contains a useful summary of

Barkat Ram (supra) as follows:

“In State of Punjab v. Barkat Ram this Court held that a

customs officer is not a police officer within the meaning of

Section 25 of the Evidence Act. The view was based on

the following considerations:

(1) The powers which a police officer enjoys are powers

for the effective prevention and detection of crime in order

to maintain law and order while a customs officer is not

113

primarily concerned with the detection and punishment of

crime committed by a person but is mainly interested in

the detection and prevention of smuggling of goods and

safeguarding the recovery of customs duties.

(2) The mere fact that customs officers possess certain

powers similar to those of police officers in regard to

detection of infractions of customs laws, is not a sufficient

ground for holding them to be police officers within the

meaning of Section 25 of the Evidence Act, even though

the word “police officer” are not to be construed in a

narrow way but have to be construed in a wide and

popular sense, as remarked in Queen v. Hurribole. The

expression “police officer” is not of such wide meaning as

to include persons on whom certain police powers are

incidentally conferred.

(3) A confession made to any police officer, whatever be

his rank and whatever be the occasion for making it, is

inadmissible in evidence but a confession made to a

customs officer when he be not discharging any such duty

which corresponds to the duty of a police officer will be

inadmissible even if the other view be correct that he was

police officer when exercising such powers.

(4) The Sea Customs Act itself refers to “police officer” in

contradistinction to Customs Officer.

(5) Customs Officers act judicially when they act under the

Sea Customs Act to prevent smuggling of goods and

imposing confiscation and Penalties, and proceedings

before them are judicial proceeding for purpose of

Sections 193 and 228 IPC.”

(at pages 779-780)

104.The minority judgment held:

“I therefore hold that the Excise Inspector and Sub-

Inspector empowered by the State Government under

Section 77(2) of the Act are not police officers within the

meaning of Section 25 of the Evidence Act and that the

aforesaid officers cannot be treated to be police officers

for the purposes of Section 162 of the Code of Criminal

114

Procedure. Section 162 does not confer any power on a

police officer. It deals with the use which can be made of

the statements recorded by a police officer carrying out

investigation under Chapter XIV of the Code. The

investigation which the aforesaid Excise Officer conducts

is not under Chapter XIV of the Code, but is under the

provisions of the Act and therefore this is a further reason

for the non-applicability of Section 162 CrPC to any

statements made by a person to an Excise Officer during

the course of his investigating an offence under the Act.”

(at page 808)

105.The test laid down by the majority in Raja Ram Jaiswal (supra) for

determining whether a person is a police officer under section 25 of the

Evidence Act, is whether a direct or substantial relationship with the

prohibition enacted by section 25 is established, namely, whether

powers conferred are such as would tend to facilitate the obtaining by

such officer of a confession from a suspect or delinquent, and this

happens if a power of investigation, which culminates in a police report,

is given to such officer.

106.Both these judgments came to be considered in the Constitution Bench

judgment in Badku Joti Savant (supra). In this case, the appellant was

prosecuted under the Central Excise and Salt Act, 1944. The Court

expressly left open the question as to whether the “broader” or

“narrower” meaning of police officer, as deliberated in the

aforementioned two judgments, is correct. It proceeded on the footing

that the broad view may be accepted to test the statute in question –

115

see pages 701, 702. The Court referred to the main purpose of the

Central Excise Act as follows:

“The main purpose of the Act is to levy and collect excise

duties and Central Excise Officers have been appointed

thereunder for this main purpose. In order that they may

carry out their duties in this behalf, powers have been

conferred on them to see that duty is not evaded and

persons guilty of evasion of duty are brought to book.

xxx xxx xxx

Section 19 lays down that every person arrested under

the Act shall be forwarded without delay to the nearest

Central Excise Officer empowered to send persons so

arrested to a Magistrate, or, if there is no such Central

Excise Officer within a reasonable distance, to the officer-

in-charge of the nearest police station. These sections

clearly show that the powers of arrest and search

conferred on Central Excise Officers are really in support

of their main function of levy and collection of duty on

excisable goods.”

(at page 702)

(emphasis supplied)

107.Section 21 of the Central Excise Act, 1944 was then set out as follows:

“21.(1) When any person is forwarded under section 19 to

a Central Excise Officer empowered to send persons so

arrested to a Magistrate, the Central Excise Officer shall

proceed to inquire into the charge against him.

(2) For this purpose the Central Excise Officer may

exercise the same powers and shall be subject to the

same provisions as the officer-in-charge of a police station

may exercise and is subject to under the Code of Criminal

Procedure, 1898, when investigating a cognizable case;

Provided that-

(a)if the Central Excise Officer is of opinion that there is

sufficient evidence or reasonable ground of suspicion

against the accused person, he shall either admit him

116

to bail to appear before a Magistrate having jurisdiction

in the case, or forward him to custody of such

Magistrate;

(b)if it appears to the Central Excise Officer that there is

not sufficient evidence or reasonable ground of

suspicion against the accused person, he shall release

the accused person on his executing a bond, with or

without sureties as the Central Excise Officer may

direct, to appear, if and when so required before a

Magistrate having jurisdiction, and shall make a full

report of all the particulars of the case to his official

superior.”

108. The Court therefore held:

“It is urged that under sub-section (2) of Section 21 a

Central Excise Officer under the Act has all the powers of

an officer in charge of a police station under Chapter XIV

of the Code of Criminal Procedure and therefore he must

be deemed to be a police officer within the meaning of

those words in Section 25 of the Evidence Act. It is true

that sub-section (2) confers on the Central Excise Officer

under the Act the same powers as an officer in charge of

a police station has when investigating a cognizable case;

but this power is conferred for the purpose of sub-section

(1) which gives power to a Central Excise Officer to whom

any arrested person is forwarded to inquire into the

charge against him. Thus under Section 21 it is the duty of

the Central Excise Officer to whom an arrested person is

forwarded to inquire into the charge made against such

person. Further under proviso (a) to sub-section (2) of

Section 21 if the Central Excise Officer is of opinion that

there is sufficient evidence or reasonable ground of

suspicion against the accused person, he shall either

admit him to bail to appear before a Magistrate having

jurisdiction in the case, or forward him in custody to such

Magistrate. 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 of Criminal

Procedure. Under Section 190 of the Code of Criminal

Procedure a Magistrate can take cognizance of any

offence either (a) upon receiving a complaint of facts

117

which constitute such offence, or (b) upon a report in

writing of such facts made by any police officer, or (c)

upon information received from any person other than a

police officer, or upon his own knowledge or suspicion,

that such offence has been committed. A police officer for

purposes of clause (b) above can in our opinion only be a

police officer properly so-called as the scheme of the

Code of Criminal Procedure shows and it seems therefore

that a Central Excise Officer will have to make a complaint

under clause (a) above if he wants the Magistrate to take

cognizance of an offence, for example, under Section 9 of

the Act. Thus though under sub-section (2) of Section 21

the Central Excise Officer under the Act has the powers of

an officer in charge of a police station when investigating

a cognizable case, that is for the purpose of his inquiry

under sub-section (1) of Section 21. Section 21 is in terms

different from Section 78(3) of the Bihar and Orissa

Excise Act, 1915 which came to be considered in Raja

Ram Jaiswal’s case [(1964) 2 SCR 752] and which

provided in terms that “for the purposes of Section 156 of

the Code of Criminal Procedure, 1898, the area to which

an excise officer empowered under Section 77, sub-

section (2), is appointed shall be deemed to be a police-

station, and such officer shall be deemed to be the officer

in charge of such station”. It cannot therefore be said that

the provision in Section 21 is on par with the provision in

Section 78(3) of the Bihar and Orissa Excise Act. All that

Section 21 provides is that for the purpose of his enquiry,

a Central Excise Officer shall have the powers of an

officer in charge of a police station when investigating a

cognizable case. But even so it appears that these

powers do not include the power to submit a charge-sheet

under Section 173 of the Code of Criminal Procedure for

unlike the Bihar and Orissa Excise Act, the Central Excise

Officer is not deemed to be an officer in charge of a police

station.”

(at pages 703-704)

(emphasis supplied)

109.Having regard to the statutory scheme contained in the Central Excise

Act, more particularly sections 21(1) and proviso (a) to section 21(2),

118

the Court held that a Central Excise officer had no power to submit a

charge-sheet under section 173(2) of the CrPC, as such officer is only

empowered to send persons who are arrested to a Magistrate under

these provisions.

110.The Court distinguished Raja Ram Jaiswal (supra), and held that this

case being under the Central Excise Act, which is a revenue statute like

the Land Customs Act, 1924 and the Sea Customs Act, 1878, would be

more in accord with the case of Barkat Ram (supra) – see page 704.

111.The next judgment in chronological order is Romesh Chandra Mehta

(supra). Here again, a Constitution Bench was concerned with the same

question under section 25 of the Evidence Act when read with enquiries

made under section 171-A of the Sea Customs Act, 1878. The Court

had no difficulty in finding that such customs officer could not be said to

be a police officer for the purpose of section 25 of the Evidence Act,

holding:

“Under the Sea Customs Act, a Customs Officer is

authorised to collect customs duty to prevent smuggling

and for that purpose he is invested with the power to

search any person on reasonable suspicion (Section 169);

to screen or X-ray the body of a person for detecting

secreted goods (Section 170-A); to arrest a person

against whom a reasonable suspicion exists that he has

been guilty of an offence under the Act (Section 173); to

obtain a search warrant from a Magistrate to search any

place within the local limits of the jurisdiction of such

Magistrate (Section 172); to collect information by

summoning persons to give evidence and produce

documents (Section 171-A); and to adjudge confiscation

119

under Section 182. He may exercise these powers for

preventing smuggling of goods dutiable or prohibited and

for adjudging confiscation of those goods. For collecting

evidence the Customs Officer is entitled to serve a

summons to produce a document or other thing or to give

evidence, and the person so summoned is bound to

attend either in person or by an authorized agent, as such

officer may direct, and the person so summoned is bound

to state the truth upon any subject respecting which he is

examined or makes a statement and to produce such

documents and other things as may be required. The

power to arrest, the power to detain, the power to search

or obtain a search warrant and the power to collect

evidence are vested in the Customs Officer for enforcing

compliance with the provisions of the Sea Customs Act.

For purpose of Sections 193 and 228 of the Indian Penal

Code the enquiry made by a Customs Officer is a judicial

proceeding. An order made by him is appealable to the

Chief Customs Authority under Section 188 and against

that order revisional jurisdiction may be exercised by the

Chief Customs Authority and also by the Central

Government at the instance of any person aggrieved by

any decision or order passed under the Act. The Customs

Officer does not exercise, when enquiring into a

suspected infringement of the Sea Customs Act, powers

of investigation which a police officer may in investigating

the commission of an offence. He is invested with the

power to enquire into infringements of the Act primarily for

the purpose of adjudicating forfeiture and penalty. He has

no power to investigate an offence triable by a Magistrate,

nor has he the power to submit a report under Section

173 of the Code of Criminal Procedure. He can only make

a complaint in writing before a competent Magistrate.”

(at pages 466-467)

(emphasis supplied)

112.Barkat Ram (supra), Raja Ram Jaiswal (supra) and Badku Joti

Savant (supra) were all referred to. The Court then laid down, what

120

according to it was the true test for determining whether an officer of

customs is to be deemed to be a police officer, as follows:

“But 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 investigation of

an offence, including the power to submit a report under

Section 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 Section 173 of the

Code of Criminal Procedure.”

(at page 469)

113.This judgment was followed by the judgment in Illias (supra), in which

the same question arose, this time under the Customs Act, 1962. In a

significant passage, the Constitution Bench held that there was no

conflict between Raja Ram Jaiswal (supra) and Barkat Ram (supra) as

follows:

“Indeed in a recent decision of this court P. Shankar

Lal v. Asstt. Collector of Customs, Madras [Cr. As 52 &

104/65 decided on 12-12-1967] it has been reaffirmed that

there is no conflict between the cases of Raja Ram

Jaiswal and Barkat Ram, the former being distinguishable

from the latter.”

(at page 616)

114.The Court then referred to the Sea Customs Act, 1878 and the Customs

Act, 1962, highlighting the fact that section 108 of the Customs Act,

1962 confers power on a gazetted officer of Customs to summons

persons for giving evidence or producing documents - see page 617.

Section 104(3) of the Customs Act, 1962 was strongly relied upon by

learned counsel appearing on behalf of the appellant in that case, which

121

section provided that where an officer of customs has arrested any

person under sub-clause (1) of section 104, he shall for the purpose of

releasing such person on bail or otherwise have the same power and

be subject to the same provisions as an officer-in-charge of a police

station has and is subject to under the CrPC. It was noticed that the

offences under the Customs Act were non-cognizable – see section

104(4). It was then held that the expression “otherwise” clearly relates

to releasing a person who has been arrested and cannot encompass

anything beyond that – see page 617. Raja Ram Jaiswal (supra) was

referred to, including the test laid down in that judgment at page 766 –

see pages 619, 620. Badku Joti Savant (supra) was then referred to.

The Court concluded:

“It was reiterated that the appellant could not take

advantage of the decision in Raja Ram Jaiswal’s case and

that Barkat Ram’s case was more apposite. The ratio of

the decision in Badku Joti Savant is that even if an officer

under the special Act has been invested with most of the

powers which an officer in charge of a police station

exercises when investigating a cognizable offence he

does not thereby became a police officer within the

meaning of Section 25 of the Evidence Act unless he is

empowered to file a charge-sheet under Section 173 of

the Code of Criminal Procedure.

Learned counsel for the appellant when faced with the

above difficulty has gone to the extent of suggesting that

by necessary implication the power to file a charge-sheet

flows from some of the powers which have already been

discussed under the new Act and that a customs officer is

entitled to exercise even this power. It is difficult and

indeed it would be contrary to all rules of interpretation to

122

spell out any such special power from any of the

provisions contained in the new Act.”

(at pages 621-622)

115.Two other judgments of this Court, this time under the Railways

Property (Unlawful Possession) Act, 1966 held that members of the

Railway Protection Force could not be said to be police officers within

the meaning of section 25 of the Evidence Act.

116.In State of U.P. v. Durga Prasad (1975) 3 SCC 210, a Division Bench

of this Court referred to section 8 of the said Act, which is similar to

section 21 of the Central Excise Act, as follows:

“6. Section 8 of the Act reads thus:

“8. (1) When any person is arrested by an officer of the

Force for an offence punishable under this Act or is

forwarded to him under Section 7, he shall proceed to

inquire into the charge against such person.

(2) For this purpose the officer of the Force may exercise

the same powers and shall be subject to the same

provisions as the officer in charge of a police station may

exercise and is subject to under the Code of Criminal

Procedure, 1898, when investigating a cognizable case;

Provided that—

(a) if the officer of the Force is of opinion that there is

sufficient evidence or reasonable ground of suspicion

against the accused person, he shall either admit him to

bail to appear before a Magistrate having jurisdiction in

the case, or forward him in custody to such Magistrate;

(b) if it appears to the officer of the Force that there is no

sufficient evidence or reasonable ground of suspicion

against the accused person, he shall release the accused

person on his executing a bond, with or without sureties

as the officer of the Force may direct, to appear, if and

123

when so required before the Magistrate having

jurisdiction, and shall make a full report of all the

particulars of the case to his official superior.”

117.The Court held:

“18. The right and duty of an Investigating Officer to file a

police report or a charge-sheet on the conclusion of

investigation 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. Under Proviso (a), if the officer of

the Force is of the opinion that there is sufficient evidence

or reasonable ground of suspicion against the accused,

he shall either admit the accused to bail to appear before

a Magistrate having jurisdiction in the case or forward him

in custody to such Magistrate. Under Proviso (b), if it

appears to the officer that there is no sufficient evidence

or reasonable ground of suspicion against the accused,

he shall release him on a bond to appear before the

Magistrate having jurisdiction and shall make a full report

of all the particulars of the case to his superior officer. The

duty cast by Proviso (b) on an officer of the Force to make

a full report to his official superior stands in sharp contrast

with the duty cast by Section 173(1)(a) of the Code on the

officer-in-charge of a police station to submit a report to

the Magistrate empowered to take cognizance of the

offence. On the conclusion of an inquiry under Section

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.

19. Thus an officer conducting an inquiry under Section

8(1) of the Act does not possess all the attributes of an

124

officer-in-charge 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.

20. That the Inquiry Officers cannot be equated generally

with police officers is clear from the object and purpose of

The Railway Protection Force Act, XXIII of 1957, under

which their appointments are made. The short title of that

Act shows that it was passed in order “to provide for the

constitution and regulation of a Force called the Railway

Protection Force for the better protection and security of

Railway property”. Section 3(1) of the Act of 1957

empowers the Central Government to constitute and

maintain the Railway Protection Force for the better

protection and security of Railway property. By Section

10, the Inspector General and every other superior officer

and member of the Force “shall for all purposes be

regarded as Railway servants within the meaning of the

Indian Railways Act, 1890, other than Chapter VI-A

thereof, and shall be entitled to exercise the powers

conferred on Railway servants by or under that Act”.

Section 11 which defines duties of every superior officer

and member of the Force provides that they must

promptly execute all orders lawfully issued to them by

their superior authority; protect and safeguard Railway

property; remove any obstruction in the movement of

Railway property and do any other act conducive to the

better protection and security of Railway property. Section

14 imposes a duty on the superior officers and members

of the Force to make over persons arrested by them to a

police officer or to take them to the nearest police station.

These provisions are incompatible with the position that a

member of the Railway Protection Force holding an

inquiry under Section 8(1) of the Act can be deemed to be

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

into an offence. Members of the Force are appointed

under the authority of the Railway Protection Force Act,

1957, the prime object of which is the better protection

and security of Railway property. Powers conferred on

members of the Force are all directed towards achieving

that object and are limited by it. It is significant that the Act

of 1957, by Section 14, makes a distinction between a

125

member of the Force and a police officer properly so

called.”

(emphasis supplied)

118.Reference was then made to Barkat Ram (supra) and Badku Joti

Savant (supra), the decision in Raja Ram Jaiswal (supra) being

distinguished, as follows:

“23. The decision in Raja Ram Jaiswal v. State of Bihar on

which the respondent relies was considered and

distinguished in Badku Joti Savant’s case. Raja Ram

Jaiswal case involved the interpretation of Section 78(3)

of the Bihar and Orissa Excise Act, 1915 which provided

in terms that:

“For the purposes of Section 156 of the Code of Criminal

Procedure, 1898, the area to which an Excise Officer

empowered under Section 7,7 sub-section (2), is

appointed, shall be deemed to be a police station, and

such officer shall be deemed to be the officer-in-charge of

such station.”

There is no provision in the Act before us corresponding

to Section 78(3) of the Bihar Act and therefore the

decision is distinguishable for the same reasons for which

it was distinguished in Badku Joti Savant’s case.”

119.In Balkishan A. Devidayal (supra), the same question as arose in

Durga Prasad (supra) arose before a Division Bench of this Court. This

Court held in paragraph 18 that Durga Prasad (supra) really concluded

the question posed before the Court. It then held:

“20. From the above survey, it will be seen that the

primary object of constituting the Railway Protection Force

is to secure better “protection and security of the railway

property”. The restricted power of arrest and search given

to the officers or members of the Force is incidental to the

efficient discharge of their basic duty to protect and

126

safeguard railway property. No general power to

investigate all cognizable offences relating to railway

property, under the criminal procedure code has been

conferred on any superior officer or member of the Force

by the 1957 Act. Section 14 itself makes it clear that even

with regard to an offence relating to “railway property”, the

superior officer or member of the Force making an arrest

under Section 13 shall forthwith make over the person

arrested to a police officer, or cause his production, in the

nearest police station.”

120.The Court noticed that offences under this Act were non-cognizable –

see paragraph 27 – and concluded:

“30. Section 7 of the Act provides that the procedure for

investigation of a cognizable offence has to be followed by

the officer before whom the accused person is produced.

31. Reading Section 7 of the 1966 Act with that of Section

14 of the 1957 Act, it is clear that while in the case of a

person arrested under Section 12 of the 1957 Act the only

course open to the superior officer or member of the

Force was to make over the person arrested to a police

officer, in the case of a person arrested for a suspected

offence under the 1966 Act, he is required to be produced

without delay before the nearest officer of the Force, who

shall obviously be bound [in view of Article 22(1) of the

Constitution] to produce him further before the Magistrate

concerned.”

121.The Court then referred to section 8 of the Act, making it clear that the

enquiry under section 8(1) shall be deemed to be a judicial proceeding

– see paragraph 34. Differences between sections 161-162 of the CrPC

and sections 9(3) and (4) of the Act were then pointed out as follows:

“35. The fourth important aspect in which the power and

duty of an officer of the RPF conducting an inquiry under

the 1966 Act, differs from a police investigation under the

Code, is this. Sub-section (3) of Section 161 of the Code

127

says that the police officer may reduce into writing any

statement made to him in the course of investigation.

Section 162(1), which is to be read in continuation of

Section 161 of the Code, prohibits the obtaining of

signature of the person on his statement recorded by the

investigating officer. But no such prohibition attaches to

statements recorded in the course of an inquiry under the

1966 Act; rather, from the obligation to state the truth

under pain of prosecution, enjoined by Section 9(3) and

(4), it follows as a corollary, that the officer conducting the

inquiry may obtain signature of the person who made the

statement.

36. Fifthly, under the proviso to sub-section (1) of Section

162 of the Code, oral or recorded statement made to a

police officer during investigation may be used by the

accused and with the permission of the court by the

prosecution to contradict the statement made by the

witness in court in the manner provided in Section 145 of

the Evidence Act, or when the witnesses statement is so

used in cross-examination, he may be re-examined if any

explanation is necessary. The statement of a witness

made to a police officer during investigation cannot be

used for any other purpose, whatever, except of course

when it falls within Section 32 or 27 of the Evidence Act.

The prohibition contained in Section 162 extends to all

statements, confessional or otherwise, during a police

investigation made by any person whether accused or

not, whether reduced to writing or not, subject to the

proviso. In contrast with the Code, in the 1966 Act, there

is no provision analogous to the proviso to Section 162(1)

of the Code, which restricts or prohibits the use of a

statement recorded by an officer in the course of an

inquiry under Sections 8 and 9 of the Act.”

122.Most importantly, it was then held:

“37. Sixthly, the primary duty of a member/officer of the

RPF is to safeguard and protect railway property. Only

such powers of arrest and inquiry have been conferred by

the 1966 Act on members of the RPF as are necessary

and incidental to the efficient and effective discharge of

the basic duty of watch and ward. Unlike a police officer

128

who has a general power under the Code to investigate all

cognizable cases the power of an officer of the RPF to

make an inquiry is restricted to offences under the 1966

Act.

xxx xxx xxx

38…An officer of the RPF making an inquiry under the

1966 Act, cannot, by any stretch of imagination, be called

an “officer in charge of a police station” within the

meaning of Sections 173 and 190(b) of the Code. The

mode of initiating prosecution by submitting a report under

Section 173 read with clause (b) of Section 190 of the

Code is, therefore, not available to an officer of the RPF

who has completed an inquiry into an offence under the

1966 Act. The only mode of initiating prosecution of the

person against whom he has successfully completed the

inquiry, available to an officer of the RPF, is by making a

complaint under Section 190(1)(a) of the Code to the

Magistrate empowered to try the offence. That an officer

of the Force conducting an inquiry under Section 8(1)

cannot initiate proceedings in court by a report under

Sections 173/190(1)(b) of the Code, is also evident from

the provisos to sub-section (2) of Section 8 of the 1966

Act. Under proviso (a), if such officer is of opinion that

there is sufficient evidence or reasonable ground of

suspicion against the accused, he shall either direct him

(after admitting him to bail) to appear before the

Magistrate having jurisdiction or forward him in custody to

such Magistrate. Under proviso (b), if it appears to the

officer that there is no sufficient evidence or reasonable

ground of suspicion against the accused, he shall release

him on bond to appear before the Magistrate concerned

“and shall make a full report of all the particulars of the

case to his superior officer”. Provisos (a) and (b) put it

beyond doubt that where after completing an inquiry, the

officer of the Force is of opinion that there is sufficient

evidence or reasonable ground of suspicion against the

accused, he must initiate prosecution of the accused by

making a complaint under Section 190(1)(a) of the Code

to the Magistrate competent to try the case.

129

39. From the comparative study of the relevant provisions

of the 1966 Act and the Code, it is abundantly clear that

an officer of the RPF making an inquiry under Section 8(1)

of the 1966 Act does not possess several important

attributes of an officer in charge of a police station

conducting an investigation under Chapter XIV of the

Code. The character of the “inquiry” is different from that

of an “investigation” under the Code. The official status

and powers of an officer of the Force in the matter of

inquiry under the 1966 Act differ in material aspects from

those of a police officer conducting an investigation under

the Code.”

(emphasis supplied)

123.This Court then referred to all the earlier judgments of this Court,

including that of Durga Prasad (supra), and concluded:

“58. In the light of the above discussion, it is clear that an

officer of the RPF conducting an inquiry 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 investigation under Chapter XIV of the Code.

Particularly, he has no power to initiate prosecution by

filing a charge-sheet before the Magistrate concerned

under Section 173 of the Code, which has been held to be

the clinching attribute of an investigating “police officer”.

Thus, judged by the test laid down in Badku Joti Savant,

which has been consistently 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, and therefore,

any confessional or incriminating statement recorded by

him in the course of an inquiry under Section 8(1) of the

1966 Act, cannot be excluded from evidence under the

said section.”

124.In State of Gujarat v. Anirudhsing and Anr. (1997) 6 SCC 514, one of

the questions which arose before this Court was as to whether a

member of the State Reserve Police Service acting under the Bombay

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State Reserve Police Force Act, 1951 could be said to be a police

officer within the meaning of section 25 of the Evidence Act. The Court

analysed the aforesaid Bombay Act, and set out section 11(1) thereof,

which states:

“When employed on active duty at any place under sub-

section (1) of Section 10, the senior reserve police officer

of highest rank, not being lower than that of a Naik

present, shall be deemed to be an officer-in-charge of a

police station for the purposes of Chapter IX of the Code

of Criminal Procedure, 1898, Act V of 1898.”

125.Since Chapter IX of the Code of Criminal Procedure, 1898, which is the

equivalent of Chapter X of the CrPC, deals with ‘maintenance of public

order and tranquillity’, the Court held:

“19. It would, thus, be clear that a senior reserve police

officer appointed under the SRPF Act, though is a police

officer under the Bombay Police Act and an officer-in-

charge of a police station, he is in charge only for the

purpose of maintaining law and order and tranquillity in

the society and the powers of investigation envisaged in

Chapter XII of the CrPC have not been invested with him.”

As a result, it was held that such officer could not be said to be a “police

officer” within the meaning of section 25 of the Evidence Act.

126.The golden thread running through all these decisions – some of these

being decisions of five-Judge Benches which are binding upon us –

beginning with Barkat Ram (supra), is that where limited powers of

investigation are given to officers primarily or predominantly for some

purpose other than the prevention and detection of crime, such persons

131

cannot be said to be police officers under section 25 of the Evidence

Act. What must be remembered is the discussion in Barkat Ram

(supra) that a “police officer” does not have to be a police officer in the

narrow sense of being a person who is a police officer so designated

attached to a police station. The broad view has been accepted, and

never dissented from, in all the aforesaid judgments, namely, that where

a person who is not a police officer properly so-called is invested with all

powers of investigation, which culminates in the filing of a police report,

such officers can be said to be police officers within the meaning of

section 25 of the Evidence Act, as when they prevent and detect crime,

they are in a position to extort confessions, and thus are able to achieve

their object through a shortcut method of extracting involuntary

confessions.

127.Shri Lekhi’s assault on Raja Ram Jaiswal (supra), stating that it is

wrongly decided and ought to be held to be per incuriam, cannot be

countenanced. Raja Ram Jaiswal (supra) correctly decided that the

Court in Barkat Ram (supra) had held that the words “police officer” to

be found in section 25 of the Evidence Act are not to be construed in a

narrow way, but in a wide and popular sense. It is wholly incorrect to

say, from a strained reading of Barkat Ram (supra) that, in reality,

Barkat Ram (supra) preferred the “narrow” view over the “broad” view.

This is also contrary to the understanding of several judgments of this

132

Court which refer to Barkat Ram (supra), and which continued to adopt

the broad, and not narrow, test laid down in the said judgment. Also,

Raja Ram Jaiswal (supra) has been referred to by several Constitution

Benches of this Court, as has been pointed out by us hereinabove, as

also other Division Benches, and has never been doubted. In fact, it has

always been distinguished in the revenue statute cases as well as the

railway protection force cases as being a case in which all powers of

investigation, which would lead to the filing of a police report, were

invested with excise officers, who therefore, despite not belonging to the

police force properly so-called, must yet be regarded as police officers

for the purpose of section 25 of the Evidence Act. The vital link between

section 25 and such officers then gets established, namely, that in the

course of investigation it is possible for such officers to take a shortcut

by extorting confessions from an accused person.

128.At this point, we come to the decision in Raj Kumar Karwal (supra). In

this case, the very question that arises before us arose before a

Division Bench of this Court. The question was set out by the Division

Bench as follows:

“1. 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 and Psychotropic

Substances Act, 1985 (hereinafter called ‘the Act’), “police

officers” within the meaning of Section 25 of the Evidence

Act? If yes, is a confessional statement recorded by such

133

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.”

129.The Court analysed the NDPS Act, and “conceded” that the

punishments prescribed for the various offences under the NDPS Act

are very severe. It then went on to hold:

“11…We, therefore, 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 State of Punjab v. Barkat Ram

and Raja Ram Jaiswal v. State of Bihar. This view has

been reiterated in subsequent cases also.”

130.After referring to all the cases that have been cited by us hereinabove,

the Court noticed the difference between the NDPS Act and the revenue

statutes and railway statute previously considered in some of the

judgments of this Court, in that section 37 of the NDPS Act makes

offences punishable under the Act cognizable. The judgment then went

on to state:

“20… Section 52 deals with the disposal of persons

arrested and articles seized under Sections 41, 42, 43 or

44 of the Act. It enjoins 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

134

Section 41(2), 42, 43 or 44 the section 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 52-A 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-

in-charge 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 enjoins 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.”

131.After referring to sections 41, 42, 43, 44, 52, 52A and 57 of the NDPS

Act, the Court concluded that these powers are more or less similar to

the powers conferred on customs officers under the Customs Act, 1962

– see paragraph 21. The Court then concluded:

22…The investigation which so commences must be

concluded, without unnecessary delay, by the submission

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

135

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, including

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

procedure 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 36-A of the Act which

begins with a non-obstante 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

Government 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

136

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.”

132.Despite the fact that Raj Kumar Karwal (supra) notices the fact that the

NDPS Act prescribes offences which are “very severe” and that section

25 is a wholesome protection which must be understood in a broad and

popular sense, yet it arrives at a conclusion that the designated officer

under section 53 of the NDPS Act cannot be said to be a police officer

under section 25 of the Evidence Act. The Division Bench also notices

that, unlike all the revenue and railway protection statues where

offences are non-cognizable, the NDPS Act offences are cognizable. It

also notices that the NDPS Act deals with prevention and detection of

crimes of a very serious nature. However, Raj Kumar Karwal (supra)

did not properly appreciate the following distinctions that arise between

the investigative powers of officers who are designated in statutes

primarily meant for revenue or railway purposes, as against officers who

are designated under section 53 of the NDPS Act: first, that section 53

is located in a statute which contains provisions for the prevention,

detection and punishment of crimes of a very serious nature. Even if the

NDPS Act is to be construed as a statute which regulates and exercises

137

control over narcotic drugs and psychotropic substances, the

prevention, detection and punishment of crimes related thereto cannot

be said to be ancillary to such object, but is the single most important

and effective means of achieving such object. This is unlike the revenue

statutes where the main object was the due realisation of customs

duties and the consequent ancillary checking of smuggling of goods (as

in the Land Customs Act, 1924, the Sea Customs Act, 1878 and the

Customs Act, 1962); the levy and collection of excise duties (as in the

Central Excise Act, 1944); or as in the Railway Property (Unlawful

Possession Act), 1966, the better protection and security of Railway

property. Second, unlike the revenue statutes and the Railway Act, all

the offences to be investigated by the officers under the NDPS Act are

cognizable. Third, that section 53 of the NDPS Act, unlike the aforesaid

statutes, does not prescribe any limitation upon the powers of the officer

to investigate an offence under the Act, and therefore, it is clear that all

the investigative powers vested in an officer in charge of a police station

under the CrPC – including the power to file a charge-sheet – are

vested in these officers when dealing with an offence under the NDPS

Act. This is wholly distinct from the limited powers vested in officers

under the aforementioned revenue and railway statutes for ancillary

purposes, which have already been discussed by this Court in Barkat

Ram (supra), with reference to the Land Customs Act; Badku Joti

138

Savant (supra), with reference to the Central Excise Act; Romesh

Chandra Mehta (supra), with reference to the Sea Customs Act; Illias

(supra), with reference to the Customs Act; and Durga Prasad (supra)

and Balkishan (supra) with reference to the Railway Act, to be in aid of

the dominant object of the statutes in question, which – as already

alluded to – were not primarily concerned with the prevention and

detection of crime, unlike the NDPS Act. Also, importantly, none of those

statutes recognised the power of the State police force to investigate

offences under those Acts together with the officers mentioned in those

Acts, as is the case in the NDPS Act. No question of manifest

arbitrariness or discrimination on the application of Article 14 of the

Constitution of India would therefore arise in those cases, unlike cases

which arise under the NDPS Act, as discussed in paragraphs 67 to 70

hereinabove.

133.The Bench also failed to notice section 53A of the NDPS Act and,

therefore, falls into error when it states that the powers conferred under

the NDPS Act can be assimilated with powers conferred on customs

officers under the Customs Act. When sections 53 and 53A are seen

together in the context of a statute which deals with prevention and

detection of crimes of a very serious nature, it becomes clear that these

sections cannot be construed in the same manner as sections

contained in revenue statutes and railway protection statutes.

139

134.The language of section 53(1) is crystal clear, and invests the officers

mentioned therein with the powers of “an officer-in-charge of a police

station for the investigation of the offences under this Act”. The

expression “officer in charge of a police station” is defined in the CrPC

as follows:

“(o) “officer in charge of a police station” includes, when

the officer in charge of the police station is absent from

the station-house or unable from illness or other cause to

perform his duties, the police officer present at the station-

house who is next in rank to such officer and is above the

rank of constable or, when the State Government so

directs, any other police officer so present;”

The expression “police report” is defined in section 2(r) of the CrPC as

follows:

“(r) “police report” means a report forwarded by a police

officer to a Magistrate under sub-section (2) of section

173;”

135.Section 173(2) of the Code of Criminal Procedure, then provides as

follows:

“173. Report of police officer on completion of

investigation.—

xxx xxx xxx

(2) (i) As soon as it 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, stating—

(a) the names of the parties;

(b) the nature of the information;

140

(c) the names of the persons who appear to be

acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed

and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so,

whether with or without sureties;

(g) whether he has been forwarded in custody under

section 170.

(h) whether the report of medical examination of the

woman has been attached where investigation relates to

an offence under sections 376, 376A, 376AB, 376B,

376C, 376D, 376DA, 376DB or section 376E of the Indian

Penal Code (45 of 1860).

(ii) The officer shall also communicate, in such manner as

may be prescribed by the State Government, the action

taken by him, to the person, if any, by whom the

information relating to the commission of the offence was

first given.”

136.Section 36A of the NDPS Act provides as follows:

“36A. Offences triable by Special Courts. —(1)

Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974),—

(a) all offences under this Act which are punishable with

imprisonment for a term of more than three years shall be

triable only by the Special Court constituted for the area in

which the offence has been committed or where there are

more Special Courts than one for such area, by such one

of them as may be specified in this behalf by the

Government;

(b) where a person accused of or suspected of the

commission of an offence under this Act is forwarded to a

Magistrate under sub-section (2) or sub-section (2A) of

141

section 167 of the Code of Criminal Procedure, 1973 (2 of

1974), such Magistrate may authorise the detention of

such person in such custody as he thinks fit for a period

not exceeding fifteen days in the whole where such

Magistrate is a Judicial Magistrate and seven days in the

whole where such Magistrate is an Executive Magistrate:

Provided that in cases which are triable by the Special

Court where such Magistrate considers—

(i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of

detention authorised by him,

that the detention of such person is unnecessary, he shall

order such person to be forwarded to the Special Court

having jurisdiction;

(c) the Special Court may exercise, in relation to the

person forwarded to it under clause (b), the same power

which a Magistrate having jurisdiction to try a case may

exercise under section 167 of the Code of Criminal

Procedure, 1973 (2 of 1974), in relation to an accused

person in such case who has been forwarded to him

under that section;

(d) a Special Court may, upon perusal of police report of

the facts constituting an offence under this Act or upon

complaint made by an officer of the Central Government

or a State Government authorised in his behalf, take

cognizance of that offence without the accused being

committed to it for trial.

(2) When trying an offence under this Act, a Special Court

may also try an offence other than an offence under this

Act with which the accused may, under the Code of

Criminal Procedure, 1973 (2 of 1974), be charged at the

same trial.

(3) Nothing contained in this section shall be deemed to

affect the special powers of the High Court regarding bail

under section 439 of the Code of Criminal Procedure,

1973 (2 of 1974), and the High Court may exercise such

powers including the power under clause (b) of sub-

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section (1) of that section as if the reference to

“Magistrate” in that section included also a reference to a

“Special Court” constituted under section 36.

(4) In respect of persons accused of an offence

punishable under section 19 or section 24 or section 27A

or for offences involving commercial quantity the

references in sub-section (2) of section 167 of the Code of

Criminal Procedure, 1973 (2 of 1974) thereof to “ninety

days”, where they occur, shall be construed as reference

to “one hundred and eighty days”:

Provided that, if it is not possible to complete the

investigation within the said period of one hundred and

eighty days, the Special Court may extend the said period

up to one year on the report of the Public Prosecutor

indicating the progress of the investigation and the

specific reasons for the detention of the accused beyond

the said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974), the offences

punishable under this Act with imprisonment for a term of

not more than three years may be tried summarily.”

137.What is clear, therefore, is that the designated officer under section 53,

invested with the powers of an officer in charge of a police station, is to

forward a police report stating the particulars that are mentioned in

section 173(2) CrPC. Because of the special provision contained in

section 36A(1) of the NDPS Act, this police report is not forwarded to a

Magistrate, but only to a Special Court under section 36A(1)(d). Raj

Kumar Karwal (supra), when it states that the designated officer cannot

submit a police report under section 36A(1)(d), but would have to

submit a “complaint” under section 190 of the CrPC misses the

importance of the non obstante clause contained in section 36A(1),

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which makes it clear that the drill of section 36A is to be followed

notwithstanding anything contained in section 2(d) of the CrPC. It is

obvious that section 36A(1)(d) is inconsistent with section 2(d) and

section 190 of the CrPC and therefore, any complaint that has to be

made can only be made under section 36A(1)(d) to a Special Court,

and not to a Magistrate under section 190. Shri Lekhi’s argument, that

the procedure under section 190 has been replaced only in part, the

police report and complaint procedure under section 190 not being

displaced by section 36A(1)(d), cannot be accepted. Section 36A(1)(d)

specifies a scheme which is completely different from that contained in

the CrPC. Whereas under section 190 of the CrPC it is the Magistrate

who takes cognizance of an offence, under section 36A(1)(d) it is only a

Special Court that takes cognizance of an offence under the NDPS Act.

Secondly, the “complaint” referred to in section 36A(1)(d) is not a private

complaint that is referred to in section 190(1)(a) of the CrPC, but can

only be by an authorised officer. Thirdly, section 190(1)(c) of the CrPC is

conspicuous by its absence in section 36A(1)(d) of the NDPS Act – the

Special Court cannot, upon information received from any person other

than a police officer, or upon its own knowledge, take cognizance of an

offence under the NDPS Act. Further, a Special Court under section 36A

is deemed to be a Court of Session, for the applicability of the CrPC,

under section 36C of the NDPS Act. A Court of Session under section

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193 of the CrPC cannot take cognizance as a Court of original

jurisdiction unless the case has been committed to it by a Magistrate.

However, under section 36A(1)(d) of the NDPS Act, a Special Court

may take cognizance of an offence under the NDPS Act without the

accused being committed to it for trial. It is obvious, therefore, that in

view of section 36A(1)(d), nothing contained in section 190 of the CrPC

can be said to apply to a Special Court taking cognizance of an offence

under the NDPS Act.

138.Also, the officer designated under section 53 by the Central

Government or State Government to investigate offences under the

NDPS Act, need not be the same as the officer authorised by the

Central Government or State Government under section 36A(1)(d) to

make a complaint before the Special Court. As a matter of fact, if the

Central Government is to invest an officer with the power of an officer in

charge of a police station under sub-section (1) of section 53, it can only

do so after consultation with the State Government, which requirement

is conspicuous by its absence when the Central Government authorises

an officer under section 36A(1)(d). Also, both section 53(1) and (2) refer

to officers who belong to particular departments of Government. Section

36A(1)(d) does not restrict the officer that can be appointed for the

purpose of making a complaint to only an officer belonging to a

department of the Central/State Government. There can also be a

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situation where officers have been designated under section 53 by the

Government, but not so designated under section 36A(1)(d). It cannot

be that in the absence of the designation of an officer under section

36A(1)(d), the culmination of an investigation by a designated officer

under section 53 ends up by being an exercise in futility.

139.Take the anomalous position that would arise as a result of the

judgment in Raj Kumar Karwal (supra). Suppose a designated officer

under section 53 of the NDPS Act investigates a particular case and

then arrives at the conclusion that no offence is made out. Unless such

officer can give a police report to the Special Court stating that no

offence had been made out, and utilise the power contained in section

169 CrPC to release the accused, there would be a major lacuna in the

NDPS Act which cannot be filled.

140.A second anomaly also results from the judgment in Raj Kumar Karwal

(supra). Ordinarily, after the police report under section 173(2) of the

CrPC is forwarded to the Magistrate (the Special Court in the NDPS

Act), the police officer can undertake “further investigation” of the

offence under section 173(8) of the CrPC. Section 173(8) reads as

follows:

“(8) Nothing in this section shall be deemed to preclude

further investigation in respect of an offence after a report

under sub-section (2) has been forwarded to the

Magistrate and, where upon such investigation, the officer

in charge of the police station obtains further evidence,

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oral or documentary, he shall forward to the Magistrate a

further report or reports regarding such evidence in the

form prescribed; and the provisions of sub-sections (2) to

(6) shall, as far as may be, apply in relation to such report

or reports as they apply in relation to a report forwarded

under sub-section (2).”

141.A three-Judge Bench of this Court in Vinubhai Haribhai Malviya and

Ors. v. State of Gujarat and Anr. 2019 SCC OnLine SC 1346 held that

the power to further investigate an offence would be available at all

stages of the progress of a criminal case before the trial actually

commences – see paragraph 49. If, as is contended by Shri Lekhi, that

the officer designated under section 53 can only file a “complaint” and

not a “police report”, then such officer would be denuded of the power to

further investigate the offence under section 173(8) after such

“complaint” is filed. This is because section 173(8) makes it clear that

the further report can only be filed after a report under sub-section (2)

(i.e. a police report) has been forwarded to the Court. However, a police

officer, properly so-called, who may be investigating an identical offence

under the NDPS Act, would continue to have such power, and may, until

the trial commences, conduct further investigation so that, as stated by

this Court in Vinubhai (supra), an innocent person is not wrongly

arraigned as an accused, or that a prima facie guilty person is not so

left out. Such anomaly – resulting in a violation of Article 14 of the

Constitution of India – in that there is unequal treatment between

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identically situated persons accused of an offence under the NDPS Act

solely due to the whether the investigating officer is a police officer or an

officer designated under section 53 of the NDPS Act, would arise only if

the view in Raj Kumar Karwal (supra) is correct.

142.A third anomalous situation would arise, in that under section 36A(1)(a)

of the NDPS Act, it is only offences which are punishable with

imprisonment for a term of more than three years that are exclusively

triable by the Special Court. If, for example, an accused is tried for an

offence punishable under section 26 of the NDPS Act, he may be tried

by a Magistrate and not the Special Court. This being the case, the

special procedure provided in section 36A(1)(d) would not apply, the

result being that the section 53 officer who investigates this offence, will

then deliver a police report to the Magistrate under section 173 of the

CrPC. Absent any provision in the NDPS Act truncating the powers of

investigation for prevention and detection of crimes under the NDPS

Act, it is clear that an offence which is punishable for three years and

less can be investigated by officers designated under section 53,

leading to the filing of a police report. However, in view of Raj Kumar

Karwal (supra), a section 53 officer investigating an offence under the

NDPS Act can end up only by filing a complaint under section 36A(1)(d)

of the NDPS Act. Shri Lekhi’s only answer to this anomaly is that under

section 36A(5) of the NDPS Act, such trials will follow a summary

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procedure, which, in turn, will relate to a complaint where investigation

is undertaken by a narcotics officer. First and foremost, trial procedure

is post-investigation, and has nothing to do with the manner of

investigation or cognizance, as was submitted by Shri Lekhi himself.

Secondly, even assuming that the mode of trial has some relevance to

this anomaly, section 258 of the CrPC makes it clear that a summons

case can be instituted “otherwise than upon complaint”, which would

obviously refer to a summons case being instituted on a police report –

see John Thomas v. Dr. K. Jagadeesan (2001) 6 SCC 30 (at

paragraph 8).

143.Section 59 of the NDPS Act is an important pointer to when cognizance

of an offence can take place only on a complaint, and not by way of a

police report. By section 59(3), both in the case of an offence under

section 59(1) [which is punishable for a term which may extend to one

year] or in the case of an offence under section 59(2) [which is

punishable for a term which shall not be less than 10 years, but which

may extend to 20 years], no Court shall take cognizance of any offence

under section 59(1) or (2), except on a complaint in writing made with

the previous sanction of the Central Government, or, as the case may

be, the State Government. Thus, under section 59, in either case i.e. in

a case where the trial takes place by a Magistrate for an offence under

section 59(1), or by the Special Court for an offence under section

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59(2), cognizance cannot be taken either by the Magistrate or the

Special Court, except on a complaint in writing. This provision is in

terms markedly different from section 36A(1)(d), which provides two

separate procedures for taking cognizance of offences made out under

the NDPS Act. For all these reasons, it is clear that Raj Kumar Karwal

(supra) cannot possibly have laid down the law correctly.

144.At this juncture, it is important to state that we do not accept the

submission of Shri S.K. Jain that the “complaint” referred to in section

36A(1)(d) refers only to section 59 of the NDPS Act. A complaint can be

made by a designated officer qua offences which arise under the NDPS

Act – it is not circumscribed by a provision which requires previous

sanction for an offence committed under section 58, as that would do

violence to the plain language of section 36A(1)(d). This argument is,

therefore, rejected. It is always open, therefore, to the designated

officer, designated this time for the purpose of filing a complaint under

section 36A(1)(d), to do so before the Special Court, which is a

separate procedure provided for under the special statute, in addition to

the procedure to be followed under section 53, as delineated

hereinabove.

145.Shri Lekhi, however, argued that section 53 does not use the

expression “deemed” and that therefore, the power contained in section

53(1) is only a truncated power to investigate which does not culminate

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in a police report being filed. We cannot agree. The officer who is

designated under section 53 can, by a legal fiction, be deemed to be an

officer in charge of a police station, or can be given the powers of an

officer in charge of a police station to investigate the offences under the

NDPS Act. Whether he is deemed as an officer in charge of a police

station, or given such powers, are only different sides of the same coin

– the aforesaid officer is not, in either circumstance, a police officer who

belongs to the police force of the State. To concede that a deeming

fiction would give full powers of investigation, including the filing of a

final report, to the designated officer, as against the powers of an officer

in charge of a police station being given to a designated officer having

only limited powers to investigate, does not stand to reason, and would

be contrary to the express language and intendment of section 53(1).

146.Another argument of Shri Lekhi is that police officers or policemen who

belong to the police force are recognised in the NDPS Act as being

separate and distinct from the officers of the Department of Narcotics,

etc. This argument has no legs on which to stand when it is clear that

the expression “police officers” does not only mean a police officer who

belongs to the State police force, but includes officers who may belong

to other departments, such as the Department of Excise in Raja Ram

Jaiswal (supra), who are otherwise invested with all powers of

investigation so as to attract the provisions of section 25 of the

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Evidence Act. Further, if the distinction between police officer as

narrowly defined and the officers of the Narcotics Control Bureau is

something that is to be stressed, then any interpretation which would

whittle down the fundamental rights of an accused based solely on the

designation of a particular officer, would fall foul of Article 14, as the

classification between the two types of officers would have no rational

relation to the object sought to be achieved by the statute in question,

which is the prevention and detection of crime.

147.What remains to be considered is Kanhaiyalal (supra). In this

judgment, the question revolved around a conviction on the basis of a

confessional statement made under section 67 of the NDPS Act. This

Court, after setting out section 67, then drew a parallel between the

provisions of section 67 of the NDPS Act and sections 107 and 108 of

the Customs Act, 1962, section 32 of the Prevention of Terrorism Act,

2002 (“POTA”) and section 15 of the TADA – see paragraph 41. These

provisions are as follows:

Customs Act, 1962

“107. Power to examine persons.— Any officer of

customs empowered in this behalf by general or special

order of the Principal Commissioner of Customs or

Commissioner of Customs may, during the course of any

enquiry in connection with the smuggling of any goods,—

(a) require any person to produce or deliver any document

or thing relevant to the enquiry;

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(b) examine any person acquainted with the facts and

circumstances of the case.

108. Power to summon persons to give evidence and

produce documents.—(1) Any Gazetted Officer of

customs shall have power to summon any person whose

attendance he considers necessary either to give

evidence or to produce a document or any other thing in

any inquiry which such officer is making under this Act.

(2) A summons to produce documents or other things may

be for the production of certain specified documents or

things or for the production of all documents or things of a

certain description in the possession or under the control

of the person summoned.

(3) All persons so summoned shall be bound to attend

either in person or by an authorised agent, as such officer

may direct; and all persons so summoned shall be bound

to state the truth upon any subject respecting which they

are examined or make statements and produce such

documents and other things as may be required: Provided

that the exemption under section 132 of the Code of Civil

Procedure, 1908 (5 of 1908), shall be applicable to any

requisition for attendance under this section.

(4) Every such inquiry as aforesaid shall be deemed to be

a judicial proceeding within the meaning of section 193

and section 228 of the Indian Penal Code, 1860 (45 of

1860).”

POTA

32. Certain confessions made to police officers to be

taken into consideration.- (1) Notwithstanding anything

in the Code or in the Indian Evidence Act, 1872 (1 of

1872), but subject to the provisions of this section, a

confession made by a person before a police officer not

lower in rank than a Superintendent of Police and

recorded by such police officer either in writing or on any

mechanical or electronic device like cassettes, tapes or

sound tracks from out of which sound or images can be

reproduced, shall be admissible in the trial of such person

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for an offence under this Act or the rules made

thereunder.

(2) A police officer shall, before recording any confession

made by a person under sub-section (1), explain to such

person in writing that he is not bound to make a

confession and that if he does so, it may be used against

him: Provided that where such person prefers to remain

silent, the police officer shall not compel or induce him to

make any confession.

(3) The confession shall be recorded in an atmosphere

free from threat or inducement and shall be in the same

language in which the person makes it.

(4) The person from whom a confession has been

recorded under sub-section (1), shall be produced before

the Court of a Chief Metropolitan Magistrate or the Court

of a Chief Judicial Magistrate along with the original

statement of confession, written or recorded on

mechanical or electronic device within forty-eight hours.

(5) The Chief Metropolitan Magistrate or the Chief Judicial

Magistrate, shall, record the statement, if any, made by

the person so produced and get his signature or thumb

impression and if there is any complaint of torture, such

person shall be directed to be produced for medical

examination before a Medical Officer not lower in rank

than an Assistant Civil Surgeon and thereafter, he shall be

sent to judicial custody.”

TADA

“15. Certain confessions made to police officers to be

taken into consideration.—(1) Notwithstanding anything

in the Code or in the Indian Evidence Act, 1872 (1 of

1872), but subject to the provisions of this section, a

confession made by a person before a police officer not

lower in rank than a Superintendent of Police and

recorded by such police officer either in writing or on any

mechanical device like cassettes, tapes or sound tracks

from out of which sounds or images can be reproduced,

shall be admissible in the trial of such person or co-

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accused, abettor or conspirator for an offence under this

Act or Rules made thereunder:

Provided that co-accused, abettor or conspirator is

charged and tried in the same case together with the

accused.

(2) The police officer shall, before recording any

confession under sub-section (1), explain to the person

making it that he is not bound to make a confession and

that, if he does so, it may be used as evidence against

him and such police officer shall not record any such

confession unless upon questioning the person making it,

he has reason to believe that it is being made voluntarily.”

148.Even a cursory look at the provisions of these statutes would show that

there is no parallel whatsoever between section 67 of the NDPS Act

and these provisions. In fact, section 108 of the Customs Act, 1962

expressly states that the statements made therein are evidence, as

opposed to section 67 which is only a section which enables an officer

notified under section 42 to gather information in an enquiry in which

persons are “examined”.

149.Equally, section 32 of POTA and section 15 of TADA are exceptions to

section 25 of the Evidence Act in terms, unlike the provisions of the

NDPS Act. Both these Acts, vide section 32 and section 15 respectively,

have non-obstante clauses by which the Evidence Act has to give way

to the provisions of these Acts. Pertinently, confessional statements

made before police officers under the provisions of the POTA and TADA

are made “admissible” in the trial of such person – see section 32(1),

POTA, and section 15(1), TADA. This is distinct from the evidentiary

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value of statements made under the NDPS Act, where section 53A

states that, in the circumstances mentioned therein, statements made

by a person before any officer empowered under section 53 shall

merely be “relevant” for the purpose of proving the truth of any facts

contained in the said statement. Therefore, statements made before the

officer under section 53, even when “relevant” under section 53A,

cannot, without corroborating evidence, be the basis for the conviction

of an accused.

150.Also, when confessional statements are used under the TADA and

POTA, they are used with several safeguards which are contained in

these sections themselves. So far as TADA is concerned, for example,

in Kartar Singh (supra) the following additional safeguards/guidelines

were issued by the Court to ensure that the confession obtained in the

course of investigation by a police officer “is not tainted with any vice

but is in strict conformity with the well-recognised and accepted

aesthetic principles and fundamental fairness”:

“263…(1) The confession should be recorded in a free

atmosphere in the same language in which the person is

examined and as narrated by him;

(2) The person from whom a confession has been

recorded under Section 15(1) of the Act, should be

produced before the Chief Metropolitan Magistrate or the

Chief Judicial Magistrate to whom the confession is

required to be sent under Rule 15(5) along with the

original statement of confession, written or recorded on

mechanical device without unreasonable delay;

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(3) The Chief Metropolitan Magistrate or the Chief Judicial

Magistrate should scrupulously record the statement, if

any, made by the accused so produced and get his

signature and in case of any complaint of torture, the

person should be directed to be produced for medical

examination before a Medical Officer not lower in rank

than of an Assistant Civil Surgeon;

(4) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973, no police officer below the rank

of an Assistant Commissioner of Police in the Metropolitan

cities and elsewhere of a Deputy Superintendent of Police

or a police officer of equivalent rank, should investigate

any offence punishable under this Act of 1987.

This is necessary in view of the drastic provisions of this

Act. More so when the Prevention of Corruption Act, 1988

under Section 17 and the Immoral Traffic Prevention Act,

1956 under Section 13, authorise only a police officer of a

specified rank to investigate the offences under those

specified Acts.

(5) The police officer if he is seeking the custody of any

person for pre-indictment or pre-trial interrogation from the

judicial custody, must file an affidavit sworn by him

explaining the reason not only for such custody but also

for the delay, if any, in seeking the police custody;

(6) In case, the person, taken for interrogation, on receipt

of the statutory warning that he is not bound to make a

confession and that if he does so, the said statement may

be used against him as evidence, asserts his right to

silence, the police officer must respect his right of

assertion without making any compulsion to give a

statement of disclosure;

The Central Government may take note of these

guidelines and incorporate them by appropriate

amendments in the Act and the Rules.”

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151.Insofar as POTA is concerned, procedural safeguards while recording

confessions have been discussed by this Court in State (NCT of Delhi)

v. Navjot Sandhu (2005) 11 SCC 600 as follows:

“Procedural safeguards in POTA and their impact on

confessions

156. As already noticed, POTA has absorbed into it the

guidelines spelt out in Kartar Singh and D.K. Basu in

order to impart an element of fairness and

reasonableness into the stringent provisions of POTA in

tune with the philosophy of Article 21 and allied

constitutional provisions. These salutary safeguards are

contained in Sections 32 and 52 of POTA. The

peremptory prescriptions embodied in Section 32 of POTA

are:

(a) The police officer shall warn the accused that he is not

bound to make the confession and if he does so, it may

be used against him [vide sub-section (2)].

(b) The confession shall be recorded in an atmosphere

free from threat or inducement and shall be in the same

language in which the person makes it [vide sub-section

(3)].

(c) The person from whom a confession has been

recorded under sub-section (1) shall be produced before

the Chief Metropolitan Magistrate or Chief Judicial

Magistrate along with the original statement of confession,

within forty-eight hours [vide sub-section (4)].

(d) The CMM/CJM shall record the statement, if any,

made by the person so produced and get his signature

and if there is any complaint of torture, such person shall

be directed to be produced for medical examination. After

recording the statement and after medical examination, if

necessary, he shall be sent to judicial custody [vide sub-

section (5)].

The mandate of sub-sections (2) and (3) is not something

new. Almost similar prescriptions were there under TADA

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also. In fact, the fulfilment of such mandate is inherent in

the process of recording a confession by a statutory

authority. What is necessarily implicit is, perhaps, made

explicit. But the notable safeguards which were lacking in

TADA are to be found in sub-sections (4) and (5).

157. The lofty purpose behind the mandate that the maker

of the confession shall be sent to judicial custody by the

CJM before whom he is produced is to provide an

atmosphere in which he would feel free to make a

complaint against the police, if he so wishes. The feeling

that he will be free from the shackles of police custody

after production in court will minimise, if not remove, the

fear psychosis by which he may be gripped. The various

safeguards enshrined in Section 32 are meant to be

strictly observed as they relate to personal liberty of an

individual. However, we add a caveat here. The strict

enforcement of the provision as to judicial remand and the

invalidation of the confession merely on the ground of its

non-compliance may present some practical difficulties at

times. Situations may arise that even after the confession

is made by a person in custody, police custody may still

be required for the purpose of further investigation.

Sending a person to judicial custody at that stage may

retard the investigation. Sometimes, the further steps to

be taken by the investigator with the help of the accused

may brook no delay. An attempt shall however be made to

harmonise this provision in Section 32(5) with the powers

of investigation available to the police. At the same time, it

needs to be emphasised that the obligation to send the

confession maker to judicial custody cannot be lightly

disregarded. Police custody cannot be given on the mere

asking by the police. It shall be remembered that sending

a person who has made the confession to judicial custody

after he is produced before the CJM is the normal rule

and this procedural safeguard should be given its due

primacy. The CJM should be satisfied that it is absolutely

necessary that the confession maker shall be restored to

police custody for any special reason. Such a course of

sending him back to police custody could only be done in

exceptional cases after due application of mind. Most

often, sending such person to judicial custody in

compliance with Section 32(5) soon after the proceedings

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are recorded by the CJM subject to the consideration of

the application by the police after a few days may not

make material difference to the further investigation. The

CJM has a duty to consider whether the application is only

a ruse to get back the person concerned to police custody

in case he disputes the confession or it is an application

made bona fide in view of the need and urgency involved.

We are therefore of the view that the non-compliance with

the judicial custody requirement does not per se vitiate the

confession, though its non-compliance should be one of

the important factors that must be borne in mind in testing

the confession.

158. These provisions of Section 32, which are conceived

in the interest of the accused, will go a long way to screen

and exclude confessions, which appear to be involuntary.

The requirements and safeguards laid down in sub-

sections (2) to (5) are an integral part of the scheme

providing for admissibility of confession made to the police

officer. The breach of any one of these requirements

would have a vital bearing on the admissibility and

evidentiary value of the confession recorded under

Section 32(1) and may even inflict a fatal blow on such

confession. We have another set of procedural

safeguards laid down in Section 52 of POTA which are

modelled on the guidelines envisaged by D.K.

Basu [(1997) 1 SCC 416]. Section 52 runs as under:

“52. (1) Where a police officer arrests a person, he shall

prepare a custody memo of the person arrested.

(2) The person arrested shall be informed of his right to

consult a legal practitioner as soon as he is brought to the

police station.

(3) Whenever any person is arrested, information of his

arrest shall be immediately communicated by the police

officer to a family member or in his absence to a relative

of such person by telegram, telephone or by any other

means and this fact shall be recorded by the police officer

under the signature of the person arrested.

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(4) The person arrested shall be permitted to meet the

legal practitioner representing him during the course of

interrogation of the accused person:

Provided that nothing in this sub-section shall entitle the

legal practitioner to remain present throughout the period

of interrogation.”

Sub-sections (2) and (4) as well as sub-section (3) stem

from the guarantees enshrined in Articles 21 and 22(1) of

the Constitution. Article 22(1) enjoins that no person who

is arrested shall be detained in custody without being

informed, as soon as may be, of the grounds for such

arrest nor shall he be denied the right to consult, and to

be defended by, a legal practitioner of his choice. They

are also meant to effectuate the commandment of Article

20(3) that no person accused of any offence shall be

compelled to be a witness against himself.”

152.Thus, to arrive at the 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 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 the

constitutional guarantees contained in Articles 14, 20(3) and 21 of the

Constitution of India.

153.The judgment in Kanhaiyalal (supra) then goes on to follow Raj Kumar

Karwal (supra) in paragraphs 44 and 45. For the reasons stated by us

hereinabove, both these judgments do not state the law correctly, and

are thus overruled by us. Other judgments that expressly refer to and

rely upon these judgments, or upon the principles laid down by these

judgments, also stand overruled for the reasons given by us.

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154.On the other hand, for the reasons given by us in this judgment, the

judgments of Noor Aga (supra) and Nirmal Singh Pehlwan v.

Inspector, Customs (2011) 12 SCC 298 are correct in law.

155.We answer the reference by stating:

(i)That the officers who are invested with powers under section 53

of the NDPS Act are “police officers” within the meaning of

section 25 of the Evidence Act, as a result of which any

confessional statement made to them would be barred under

the provisions of section 25 of the Evidence Act, and cannot be

taken into account in order to convict an accused under the

NDPS Act.

(ii)That a statement recorded under section 67 of the NDPS Act

cannot be used as a confessional statement in the trial of an

offence under the NDPS Act.

156.I.A. No. 87826 of 2020 for intervention is dismissed. I.A. No. 81061 of

2020 in Criminal Appeal No. 433 of 2014 is dismissed as withdrawn,

with liberty to the applicant to avail of such remedies as are available in

law.

162

157.These Appeals and Special Leave Petitions are now sent back to

Division Benches of this Court to be disposed of on merits, in the light of

this judgment.

…………..………………J.

(R. F. Nariman)

……..……………………J.

(Navin Sinha)

New Delhi.

29

th

October, 2020.

163

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 152 OF 2013

Tofan Singh ...Appellant

versus

The State of Tamil Nadu ….Respondent

WITH

Crl.A. No. 827/2010

Crl.A. No. 2214/2009

Crl.A. No. 1750/2009

Crl.A. No. 836/2011

Crl.A. No. 835/2011

Crl.A. No. 77/2015

Crl.A. No. 344/2013

Crl.A. No. 1826/2013

Crl.A. No. 433/2014

Crl. A. No. …………..2020

@ SLP(Crl) No. 6338/2015

Crl.A. No. 91/2017

Crl.A. No. 90/2017

Crl. A. No. ………….2020

@ SLP(Crl) No. 1202/2017

J U D G M E N T

Indira Banerjee, J.

I have gone through the draft judgment prepared by my

esteemed brother, Rohinton F. Nariman, J. but have not been able to

164

persuade myself to agree that the officers invested with powers

under Section 53 of the Narcotic Drugs and Psychotropic Substances

Act (NDPS Act) are police officers within the meaning of Section 25 of

the indian Evidence Act, 1872 or that any confessional statement

made to them would be barred under the provisions of Section 25 or

26 of the Evidence Act. In my view, any statement made or

document or other thing given to an authorised officer referred to in

Section 42 of the NDPS Act or an officer invested under Section 53

with the powers of an Officer in Charge for the purpose of

investigation of an offence under the said Act, in the course of any

inquiry, investigation or other proceeding, may be tendered in

evidence in the trial of an offence under the said Act and proved in

accordance with law. I am also unable to agree that a statement

recorded under Section 67 of the NDPS Act cannot be used against an

accused offender in the trial of an offence under the NDPS Act.

2. The illicit production, distribution, sale and consumption of

drugs and psychotropic substances, is a crime of multi-dimensional

magnitude, that imposes a staggering burden on the society. In an

Article “Narcotic Aggression and Operation Counter Attack” published

in the Mainstream dated March 7, 1992, V.R. Krishna Iyer, J. said:-

“Religion is opium of the people, but today opium is the religion of the

people, and like God, is omnipresent, omnipotent and omniscient. Alas!

Opium makes you slowly ill and eventually kills, makes you a new

criminal to rob and buy the stuff, tempts you to smuggle at risk to

become rich quick, makes you invisible trafficker of psychotropic

substances and operator of a parallel international illicit currency and

sub rosa evangelist mafia culture. Drug business makes you if not killed

165

betimes, the possessor of pleasure, power and empire. What noxious

menace is this most inescapable evil that benumbs the soul of student,

teacher, doctor, politician, artists and professional, and corrupts

innocent millions of youth and promising intellectuals everywhere.”

3. In the words of Krishna Iyer, J., “the global scenario in its

sombre macabre, devouring delinquency, is dominated by drug abuse

and narcotic trade. Trafficking in drugs and psychotropic substances

is not any local or regional crime confined only to India and third-

world countries, but is a worldwide phenomenon. All nations

including India, had huge drug abuse as a threat to the survival of

human beings.”

4. Illicit drug trafficking is an organised crime, highly

sophisticated and complex. This illicit traffic, cleverly carried out by

hardened criminals with dexterity and skill, not only violates national

drug laws and international conventions, but also involves many

other criminal activities, including racketeering, conspiracy, bribery

and corruption of public officials, tax evasion, banking law violations,

illegal money transfers, import/export violations, crimes of violence

and terrorism.

5. Narcotics are often supplied for money and also in exchange

for weapons. There are numerous drug trafficking mafia yielding,

immense power in various regions of the world, including India. The

far-reaching consequences of illicit drug trade, even threatens the

166

integrity and stability of governments and renders law enforcement

action vulnerable.

6. Considering the huge profits derived by drug barons from

rampant consumption of opium and other narcotic drugs, tycoons of

the drug cartels, who have international links, go to any extent, to

exploit and manipulate unhealthy economic conditions, as well as

corruption and weaknesses in the administration, to push drugs into

the society, in complete disregard of the health, morality and well-

being of the people.

7. India has been directly engulfed in drug trafficking by virtue of

its geographical location, flanked on three sides by illicit narcotic drug

production regions. To the West lies the Golden Crescent, comprising

Iran, Afghanistan and Pakistan, which illegally produce a huge volume

of opium, converted into heroin in illicit factories. In the East, the

Golden Triangle is made up of Burma, Thailand and Laos, which

produce thousands of tons of opium, cultivated over thousands of

hectares of land. The third flank is along the 1,568 km border with

Nepal in the North. The Himalayan foot hills and the Terrai regions of

Nepal produce inter alia ‘cannabis restin’. The long land border with

Pakistan and a network of airports and seaports linking India to other

countries has facilitated illegal trafficking in drugs.

167

8. India is not only a transit point for the export of narcotic drugs

from the regions surrounding it, to Western and other countries.

India also provides a lucrative market for narcotic drugs and

psychotropic substances. That apart, there is widespread illicit

cultivation of plants yielding narcotic drugs, like opium and ganja in

India.

9. Illicit drugs from the Golden Crescent, the Golden Triangle, as

well as from Nepal and China, are smuggled into India for

consumption and sale and also onward transmission to other

countries. Illicit drugs find their way, inter alia, into metropolitan

cities of India like Delhi, Mumbai, Bengaluru etc. The amount of illicit

narcotic drugs that are seized in India by law enforcement

authorities, only constitute the tip of the iceberg.

10. The menace of illicit, manufacture and sale of narcotic drugs

and psychotropic substances has been of international concern. As

early as in July 1906, Reverend Brent wrote a letter to President

Roosevelt expressing his anxiety over the increasing illicit traffic in

opium and the necessity of curbing the same. That was followed by a

series of meetings amongst various nations of the world, at regular

intervals, leading to the enactment of several Drug Laws in those

nations.

168

11. An International Convention was held at Hague in 1912, to

inter alia regulate the preparation and sale of raw and prepared

opium and other derivatives like Morphine and Cocaine etc.

However, the enforcement of the said Convention was kept in

abeyance for nearly six years, presumably due to the first World War,

and came into force in the middle of 1919.

12. In 1920-1923, the Council of the League of Nations, entrusted

the control, manufacture, trade and traffic in drugs inter alia to the

Assembly and Council of the League of Nations, the Advisory

Committee on the subject relating to traffic in opium and other

dangerous drugs, the Health Committee of the League of Nations

and its Supervisory Body.

13. The second International Opium Convention, held in Greece in

1925 led to the Geneva Opium Agreement, 1925 which came into

force in 1926. The Geneva Opium Agreement made elaborate

recommendations in respect, of the problems relating to intake and

illicit traffic of opium. The next Convention was held at Geneva in

1931 for limiting the manufacture as well as regulating the

distribution of Narcotic drugs. In 1936, another Convention for the

169

suppression of illicit traffic in dangerous drugs was held in Geneva.

The Resolutions adopted in the convention came into force in 1939.

14. In 1946, the United Nations established the Commission for

Narcotic Drugs as a functional Commission of the Economic and the

Social Council. In 1953, the Commission formulated Protocols for

limiting and regulating the cultivation of opium plant, international

whole-sale trade in opium and the use of opium.

15. In 1961 a Single Convention of Narcotic Drugs was adopted by

the United Nations with the objects of: -

1. Codification of the existing multilateral Convention on drugs.

2. Simplification of the International Control Machinery.

3. Extension of the Control System to the cultivation of other natural

products like Cannabis, Resin and Coca leaves in addition to opium and poppy

straw and

4. Adoption of appropriate measures for the treatment and

rehabilitation of drug addicts.

16. Schedules I to IV of the said Convention included almost all

drugs and Narcotics substances, as well as preparations thereof,

which were then in use. The Convention was signed in New York on

March 31, 1961 and came into force on December 13, 1964.

17. A Convention of Psychotropic Substances was held at Vienna

from 11th January, 1971 to 21

st

February, 1971. The Resolutions

170

adopted in the Convention of Psychotropic Drugs, which came into

force with effect from August,1971, contemplated restriction of the

use and preparation of psychotropic substances. It was also resolved

that stringent penal provisions be made to control the use of

psychotropic substances.

18. In 1981, the General Assembly of the United Nations adopted

an International Drug Abuse Control Strategy and a five-year Action

Plan for 1982-86. In 1984 the U.N. General Assembly adopted the

declaration on the Control of Drug Trafficking and Drug Abuse. Again,

there was an International Conference on drug abuse and illicit

trafficking held in Vienna from June 17 to June 26, 1987. The

principal document prepared before the Conference by the United

Nations was a comprehensive multi-disciplinary plan of future

activities to control drug abuse.

19. The United Nations Conference held at Vienna from 25

th

November to 20

th

December, 1988 expressed concern at the

magnitude of and rising trends in the illicit production of, demand for

and traffic in Narcotic Drugs and Psychotropic Substances all over the

world and therefore adopted the Convention against illicit traffic in

Narcotic Drugs and Psychotropic Substances, 1988. The purpose of

the Convention was as follows:

“1. The purpose of this Convention is to promote co-operation among

171

the parties so that they may address more effectively the various

aspects of illicit traffic in narcotic drugs and psychotropic substances

having an international dimension. In carrying out their obligations

under the Convention, the parties shall take necessary measure,

including legislative and administrative measures, in conformity with

the fundamental provisions of their respective domestic legislative

systems.

2. The parties shall carry out their obligations under this Convention in

a manner consistent with the principles of sovereign equality and

territorial integrity of States and affairs of other States.

3. A Party shall not undertake in the territory of another Party the

exercise of jurisdiction and performance of functions which are

exclusively reserved for the authorities of that other party by its

domestic law”.

20. The Resolutions passed in the said Convention pertained to

offences and sanctions relating to illicit trafficking in narcotic drugs

and psychotropic substances, exercise of Jurisdiction, confiscation,

extradition, mutual legal assistance, transfer of proceedings, co-

operation and training, international cooperation and assistance,

controlled delivery, enactment of provisions to prevent diversion of

trade, materials and equipment for illicit production of narcotic drugs

and psychotropic substances, measures to eradicate illicit cultivation

of narcotic plants and elimination of illicit demand for narcotic drugs

and psychotropic substances.

21. India participated in many of the international conferences

and/or conventions. India had participated in the Second International

Opium Conference at Geneva on 17th November, 1924 and again on

19th February, 1925, and adopted the convention relating to

dangerous drugs. Being a signatory to the said Convention, which

resolved to take further measure to suppress the contraband traffic in

172

and abuse of Dangerous Drugs especially those derived from Opium,

Indian Hemp and Coca Leaf, the Indian Legislature passed the

Dangerous Drugs Act, 1930 to control certain operations relating to

dangerous drugs and provide for increased penalties for the offences

relating to such operations. The said Act was amended from time to

time by various legislations.

22. It may be pertinent to point out that, even before the

enactment of the Dangerous Drugs Act of 1930, there was statutory

control over Narcotic Drugs in India through enactments like the

Opium Acts of 1857 and 1878.

23. With the developments in the field of illicit drug traffic and

drug abuse at the National and International level, many flaws were

noticed in the laws. It was realised that the provisions of the Acts

were not stringent enough to effectively control drug abuse and

related crimes like preparation, transport, sale etc. of narcotic drugs

and psychotropic substances. The laws in existence were not a

deterrent to illicit business in narcotic drugs and psychotropic

substances. An urgent need was, therefore, felt for introducing a

comprehensive legislation on Narcotic Drugs and Psychotropic

Substances.

24. The NDPS Act has been enacted, inter alia, to implement

International Conventions relating to narcotic drugs and psychotropic

173

substances to which India has been a party and also to implement

the Constitutional policy enshrined in Article 47 of the Constitution of

India, which casts a duty upon the State to improve public health and

also to prohibit consumption, except for medicinal purposes, of drugs

which are injurious to health.

25. As stated in its Preamble, the NDPS Act has been enacted to

consolidate and amend the law relating to narcotic drugs, to make stringent

provisions for the control and regulation of operations relating to narcotic drugs and

psychotropic substances, to provide for the forfeiture of property derived from, or

used in, illicit traffic in narcotic drugs and psychotropic substances, to implement

the provisions of the International Conventions on Narcotic Drugs and Psychotropic

Substances and for matters connected therewith. It is not a penal statute like

the Indian Penal Code (IPC).

26. The Statement of Objects and Reasons for the NDPS Act as

laid before Parliament is as under:

“The statutory control over narcotic drugs is exercised in India through

a number of Central and State enactments. The Principal Central Acts,

namely, the Opium Act, 1857, the Opium Act, 1878 and the Dangerous

Drugs Act, 1930 were enacted a long time ago. With the passage of

time and the developments in the field of illicit drug traffic and drug

abuse at national and international level many deficiencies in the

existing laws have come to notice, some of which are indicated below:

(i) The scheme of penalties under the present Acts is not

sufficiently deterrent to meet the challenge of well

organised gangs of smugglers. The Dangerous Drugs Act,

1930 provides for a maximum term of imprisonment of three

years with or without fine and four years imprisonment with or

without fine with repeat offences. Further, no minimum

174

punishment is prescribed in the present laws, as a result of which

drug traffickers have been sometimes let off by the courts with

nominal punishment. The country has for the last few years been

increasingly facing the problem of transit traffic of drugs coming

mainly from some of our neighbouring countries and destined

mainly to western countries.

(ii) The existing central laws do not provide for investing the officers

of a number of important central enforcement agencies like

narcotics, customs, central excise etc., with the power of

investigation of offences under the said laws.

(iii) Since the enactment of the aforesaid three Central Acts a vast

body of international law in the field of narcotics control has

evolved through various international treaties and protocols. The

Government of India has been a party to these treaties and

conventions which entail several obligations which are not

covered or are only partly covered by the present Acts.

(iv) During the recent years new drugs of addiction which have come

to be known as psychotropic substances have appeared on the

scene and posed serious problems to national governments.

There is no comprehensive law to enable exercise of control over

psychotropic substances in India in the manner as envisaged in

the Convention on Psychotropic Substances, 1971 to which also

India has acceded.”

27. The NDPS Act was prompted by an urgent need to enact a

comprehensive legislation to, inter alia, consolidate and amend the

existing laws relating to narcotic drugs and psychotropic substances,

strengthen the existing controls over drug abuses, prevent the

funding of illicit trade in narcotic drugs and psychotropic substances

enhance the penalties particularly for trafficking offences, make

provisions for exercising effective control over psychotropic

substances and to make provisions for the implementation of

international conventions relating to narcotic drugs and psychotropic

175

substances, which India has endorsed. The NDPS Act also envisages

the Constitution of a National Fund for the control of drug abuse.

28. There are two main enactments on the subject, the NDPS Act

and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic

Substances Act, 1988, hereinafter refered to as the 1988 Act.

29. The NDPS Act consolidated and amended the existing laws

relating to narcotic drugs, strengthened the existing control over drug

abuse, considerably enhanced the punishments particularly for

trafficking offences, made provision for exercising effective control

over psychotropic substances and provided for the implementation of

the then existing international conventions.

30. The NDPS Act with Chapters I to VIII, comprises 83 sections.

Chapter I contains the short title of the Act, definitions of various

words and expressions used therein and a provision enabling addition

to and deletion from the list of psychotropic substances.

31. Chapter II of the NDPS Act enables the Central Government to

take measures for preventing and combating the abuse of narcotic

drugs and psychotropic substances and the illicit traffic therein and

also empowers the Central and/or State Government to appoint inter

176

alia a Commission, a Consultative Committee, other authorities and

officers for the purposes of the said Act. Chapter IIA inter alia

provides for the constitution of a National Fund for control of drug

abuse.

32. In exercise of power conferred by Section 4(3) of the NDPS

Act, the Central Government constituted the Narcotics Control

Bureau, hereinafter referred to as NCB. The officers of the NCB are

not police officers, but are from different departments of the

Government, including officers of the Directorate of Revenue

Intelligence, Customs Officers and Central Excise Officers.

33. The Narcotics Control Bureau (NCB) has been combating drug

trafficking in India. Moreover, in view of India's commitment to

international cooperation for suppression of drug trafficking, NCB has

also been playing a key role in assisting authorities in foreign

countries to suppress illicit drug trade.

34. Chapter III of the NDPS Act comprising Sections 8 to 14

prohibits and/or controls and/or regulates certain operations and

activities relating to narcotic drugs and psychotropic substance, and

also relating to property derived from an offence under the NDPS Act,

as well as property including any building, warehouse or vehicle used

in connection with an offence under the NDPS Act.

177

35. Sections 15 to 32B in Chapter IV provide for punishment for

contraventions in relation to poppy straw, coca plant and coca leaves,

prepared opium, opium poppy and opium, cannabis plant,

manufactured drugs and preparations, psychotropic substances,

illegal import or export of narcotic drugs and psychotropic

substances, external dealings in narcotic drug and psychotropic

substances, etc.

36 Section 35(1) of the NDPS Act provides that in “any

prosecution for an offence under this Act which requires a culpable

mental state of the accused, the court shall presume the existence of

such mental state but it shall be a defence for the accused to prove

the fact that he had no such mental state with respect to the act

charged as an offence in that prosecution.” As per the Explanation

to Section 35(1) “culpable mental state includes intention motive,

knowledge of a fact and belief in, or reason to believe, a fact.”

Section 35(2) provides that for the purpose of Section 35 a fact is

said to be proved only when the court believes it to exist beyond a

reasonable doubt and not merely when its existence is established by

a preponderance of probability.”

37. The constitutional vires of Section 35 of the NDPS Act has

been upheld by this Court in Noor Aga v. State of Punjab and

Anr.

3

. This Court held:-

“23.Section 35 of the Act provides for presumption of culpable

3 (2008) 16 SCC 417

178

mental state. It also provides that an accused may prove that he had no

such mental state with respect to the act charged as an offence under

the prosecution. Section 54 of the Act places the burden of proof on the

accused as regards possession of the contraband to account for the

same satisfactorily.

xxx xxx xxx

34. The Act contains draconian provisions. It must, however, be

borne in mind that the Act was enacted having regard to the mandate

contained in International Conventions on Narcotic Drugs and

Psychotropic Substances. Only because the burden of proof under

certain circumstances is placed on the accused, the same, by itself, in

our opinion, would not render the impugned provisions unconstitutional.

35. A right to be presumed innocent, subject to the establishment

of certain foundational facts and burden of proof, to a certain extent,

can be placed on an accused. It must be construed having regard to the

other international conventions and having regard to the fact that it has

been held to be constitutional. Thus, a statute may be constitutional but

a prosecution thereunder may not be held to be one. Indisputably, civil

liberties and rights of citizens must be upheld.

xxx xxx xxx

55. The provisions of Section 35 of the Act as also Section 54

thereof, in view of the decisions of this Court, therefore, cannot be said

to be ex facie unconstitutional. We would, however, keeping in view the

principles noticed hereinbefore examine the effect thereof, vis-`-vis the

question as to whether the prosecution has been able to discharge its

burden hereinafter. “

38. Section 36 of the NDPS Act provides for the constitution of

Special Courts for speedy trial of offences under the said Act. Section

36A(1) inter alia provides that notwithstanding anything contained in

the Code of Criminal Procedure, 1973 all offences under the NDPS

Act, which are punishable with imprisonment for a term of more than

three years are to be triable only by the Special Court constituted

under the said Act.

179

39. Section 36A(5) of the NDPS Act provides that notwithstanding

anything contained in the Code of Criminal Procedure, 1973, the

offences punishable under NDPS Act, with imprisonment for a term of

not more than three years, may be tried summarily.

40. Chapter V of the NDPS Act comprising Sections 41 to 68

prescribes the procedures to be followed by the officers appointed

under the NDPS Act, for exercise of the powers of entry, search,

seizure arrest, disposal of seized materials, inquiry and investigation

for implementation of the provisions of the said Act.

41. Chapter VA consisting of 25 sections, inserted in the NDPS Act

by the NDPS Amendment Act, 1988, provides for forfeiture of income,

earnings or assets derived from or attributable to the contravention

of the NDPS Act.

42. Chapter VI being the last chapter contains miscellaneous

provisions including Sections 79, 80 and 81 set out hereinbelow:-

“79. Application of the Customs Act, 1962.—All prohibitions and

restrictions imposed by or under this Act on the import into India, the

export from India and transhipment of narcotic drugs and psychotropic

substances shall be deemed to be prohibitions and restrictions imposed

by or under the Customs Act, 1962 (52 of 1962) and the provisions of

that Act shall apply accordingly: Provided that, where the doing of

anything is an offence punishable under that Act and under this Act,

nothing in that Act or in this section shall prevent the offender from

being punished under this Act.

180

80. Application of the Drugs and Cosmetics Act, 1940 not

barred.—The provisions of this Act or the rules made thereunder shall

be in addition to, and not in derogation of, the Drugs and Cosmetics

Act, 1940 (23 of 1940) or the rules made thereunder.

81. Saving of State and special laws.—Nothing in this Act or in the

rules made thereunder shall affect the validity of any Provincial Act or

an Act of any State Legislature for the time being in force, or of any

rule made thereunder which imposes any restriction or provides for a

punishment not imposed by or provided for under this Act or imposes a

restriction or provides for a punishment greater in degree than a

corresponding restriction imposed by or a corresponding punishment

provided for by or under this Act for the cultivation of cannabis plant or

consumption of, or traffic in, any narcotic drug or psychotropic

substance within India.”

43. The scheme of the NDPS Act makes it patently clear that it

essentially makes provisions, as are deemed necessary, for

preventing and combating the abuse of and illicit trade and trafficking

in narcotic drugs and psychotropic substances, including the

financing of (i) the cultivation of coca plant; (ii) cultivation of opium

poppy or any cannabis plant; (iii) the production, manufacture,

possession, sale, purchase, transportation, warehousing,

concealment, use, consumption, import inter-State, export inter-

State, import into India, export from India or transhipment of narcotic

drugs or psychotropic substances; (iv) dealing in any activities in

narcotic drugs or psychotropic substances other than those referred

to above or (v) the hiring or letting out any premises for the carrying

on of any of the activities referred to above.

44.The NDPS Act has been amended by the NDPS (Amendment)

181

Act, 1988, to provide for some stringent measures, including

provision for death penalty in certain cases of commission of offence

after previous conviction and most of the offences under the Act have

been made non-bailable. It also introduced a new Chapter V A to the

NDPS Act, based on the Vienna Convention of 1988, which provided

for forfeiture of property derived from or used in illicit traffic.

45. The object of the aforesaid amendment as stated in the

Objects and Reasons of the NDPS (Amendment) Act, 1988 placed

before Parliament is as follows:-

“6. Statement of objects and reasons of the Narcotic Drugs

and Psychotropic Substances (Amendment) Act, 1988.- (1) In

recent years, India has been facing a problem of transit traffic in illicit

drugs. The spill over from such traffic has caused problems of abuse

and additction. The Narcotic Drugs and Psychotropic Substances Act,

1985 provides deterrent punishments for drug trafficing offences. Even

though the major offences are non-bailable by virtue of the level of

punishments, on technical grounds, drug offenders were being released

on bail. In the light of certain difficulties faced in the enforcement of

the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to

amend the law to further strengthen it, has been felt.

(2)A Cabinet Sub-Committee, which was constituted for

combating drug traffic and preventing drug abuse, also made a

number of recommendations of the Cabinet Sub-Committee and

the working of the Narcotic Drugs and Psychotoripc Substances

Act, in the last three years, it is proposed to amend the said Act.

The amendments, inter alia, provide for the following :

(i)to constitute a National Fund for control of Drugs abuse to

meet the expenditure incurred in connection with the measures for

combating illicit traffic and preventing drug abuse;

(ii)to bring certain controlled substances, which are used for

manufacture of Narcotic drugs and Psychotropic Substances, under

182

the ambit of Narcotic Drugs and Psychotropic Substances Act and

to provide deterrent punishment for violation thereof;

(iii)to provie that no sentence awarded under the Act shall be

suspended, remitted or commuted;

(iv)to provide that no sentence awarded under the Act shall be

suspended, remitted or commuted;

(iv)to provide for pre-trial disposal of seized drugs;

(v)to provide death penalty on second conviction in respect of

specified quantities of certain drugs;

(vi)to provide for forfeiture of property and detailed procedure

relating to the same; and

(vii) to provide that the offences shall be congnizable and non-

bailable.

(3) The Bill seeks to achieve the above objectives.”

46. The NDPS Act was further amended by the NDPS

(Amendment) Act, 2001, to rationalize the sentence structure to

ensure that drug traffickers who traffic in significant quantities of

drugs are punished with deterrent sentences, but addicts and others

who commit less serious offences, are sentenced to less severe

punishment. There were further amendments by the NDPS

(Amendment) Act 2014 and the Finance Act 2016 (28 of 2016).

47. However, despite an elaborate statutory framework, the NDPS

Act is not being effectively implemented. It is difficult to check the

expanding network of drug-traffickers. To evade the enforcement

authorities, the drug traffickers take recourse to the most ingenious

and devious ways of trading illicitly in narcotic drugs and

183

psychotropic substances. Investigations are often half-hearted, for

various reasons including underhand deals.

48. Illicit business in and consumption of narcotic drugs and

psychotropic substances is endangering the social and economic

stability of India and the developing countries, adversely affecting the

health of the people, causing malnutrition related ailments, causing a

spurt in crimes and increase in the spread of communicable diseases

such as AIDS (Acquired Immuno Deficiency Syndrome), caused by

sharing of needles for administration of narcotic drugs. The lure of

money, vulnerability of adolescents, poverty and other facets of

socio-economic deprivations aggravate this menace and provide

sustenance to the racketeers involved in this flourishing illicit

business.

49. The Law Commission of India, in its 155

th

Report on Narcotic

Drugs and Psychotropic Substances Act, 1985, submitted in July,

1997, inter alia, stated: -

“The crimes are generally of two kinds:

(a) Traditional crimes affecting individual persons, like murder, theft,

assault, etc.;

(b) White-Collar Crimes or Socio Economic Crimes affecting the public

at large like smuggling, hoardings, adulteration, illicit trafficking

and sale of narcotic drugs and psychotropic substances etc. White-

collar crimes are of recent origin and may be defined as all illegal

acts committed by unlawful means — the purpose being to obtain

money or property or business or personal gain or profit. Such

crimes are committed by the organised gangs having

influence. Some of the salient features of the white-collar crimes

184

are as under:

(a) there is no social sanction against such white-collar crimes;

(b) these crimes are committed by organised gangs equipped

with most modern technology;

(c) there is generally a nexus between the politicians, law

enforcing agencies and the offenders indulging directly in

such crimes;

(d) there is no organised public opinion against such crimes; and

(e) the traditional crimes are isolated crimes, while the white-collar

crimes are part and parcel of the society.

1.3. Drug Trafficking and illicit use of Narcotic Drugs and

Psychotropic Substances.—The genesis and development of the

Indian drug trafficking scenario are closely connected with the strategic

and geographical location of India which has massive inflow of heroin

and hashish from across the Indo-Pak border originating from “Golden

Crescent” comprising of Iran, Afghanistan and Pakistan which is one of

the major illicit drug supplying areas of the world. On the North Eastern

side of the country is the “Gold Triangle” comprising of Burma, Loas and

Thailand which is again one of the largest sources of illicit opium in the

world. Nepal also is a traditional source of cannabis, both herbal and

resinous. Cannabis is also of wide growth in some states of India. As far

as illicit drug trafficking from and through India is concerned, these

three sources of supply have been instrumental in drug trafficking. Prior

to the enactment of the Narcotic Drugs and Psychotropic Substances

Act, 1985, the statutory control over narcotic drugs was exercised in

India through a number of Central and State enactments. The principal

Central Acts were (a) the Opium Act, 1857, (b) the Opium Act, 1878 and

(c) the Dangerous Drugs Act, 1930.”

50. Socio-economic crimes such as trafficking in narcotic drugs

and psychotropic substances, food adulteration, black marketing,

profiteering and hoarding, smuggling, tax evasion and the like, which

are “white collar crimes” affect the health and material welfare of

the community as a whole, as against that of an individual victim,

and are, by and large, committed not by disadvantaged low class

people, but by very affluent and immensely powerful people, who

often exploit the less advantaged, to execute their nefarious designs.

185

Such crimes have to be dealt with firmly and cannot be equated with

other crimes, committed by individual offenders against individual

victims.

51. There can be no doubt at all, that the right to a fair

trial, encompassing fair procedure is guaranteed under

Article 21 of the Constitution of India. It is too late in the day

to contend otherwise. The safeguards provided in a statute,

are always scrupulously to be adhered to, more so when the

punishment is very severe. However, in my view, each case

has to be decided taking into account all relevant factors,

particularly, the evidence against the accused .

52. It is a well settled principle of criminal jurisprudence that an

accused is presumed innocent, unless proved guilty beyond

reasonable doubt, except where the statute, on existence of certain

circumstances, casts a reverse burden on the accused, to dispel the

presumption of guilt, as in the case of Section 304B of the Indian

Penal Code and many other statutes, particularly those dealing with

socio economic offences. The Legislature may, in public interest,

create an offence of strict liability where mens rea is not necessary.

There are presumptive provision in the NDPS Act, such as Sections

35, 54 and 66. Under Section 54 of the NDPS Act presumption of

commission of an offence may, inter alia, be drawn from the

186

possession of any narcotic drug or psychotropic substance, or any

apparatus for manufacture or preparation thereof. The presumption is

rebuttable.

53. The punishments prescribed for many of the offences under

the NDPS Act are very severe, as observed by my esteemed brother,

Nariman J. Sections 21(b), 22(b), 23(b) and 25A prescribe punishment

of rigorous imprisonment, which may extend to ten years. Sections

21(c) and 23(c), 24 and 27A prescribe the punishment of rigorous

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

may extend to twenty years. Offences under Section 27B are

punishable with rigorous imprisonment of not less than 3 years which

may extend to 10 years. Under Section 28, attempts to commit an

offence entail punishment for the offence. Section 29 makes

abetment of and criminal conspiracy to commit an offence, under the

NDPS Act punishable with the punishment for the offence. Section 30

prescribes punishment of rigorous imprisonment for preparation for

offences, for a term which is not to be less than one half of the

minimum term if any, but might extend to one half of the maximum

term of imprisonment, which might have been awarded for

committing the offence. Section 31 provides for enhanced

punishment for offences repeated after previous conviction including

death sentence in some exceptional cases. Certain provisions, such

as Sections 35, 54 and 66 for presumptions, though rebuttable, also

187

operate against the accused under the NDPS Act. When a statute

has drastic penal provisions, the authorities investigating the

crime under such law, have a greater duty of care, and the

investigation must not only be thorough, but also of a very

high standard.

54. There are inbuilt safeguards in the NDPS Act to protect a

person accused of an offence under the said Act, from unnecessary

harassment, or malicious or wrongful prosecution. Reference may in

particular be made to Section 58, set out hereinafter, which provides

for punishment of any person, authorized under Section 42 or 43 or

44 for vexatious entry, search, seizure, or arrest.

“58. Punishment for vexatious entry, search, seizure or arrest.—

(1) Any person empowered under section 42 or section 43 or section 44

who— (a) without reasonable ground of suspicion enters or searches, or

causes to be entered or searched, any building, conveyance or place;

(b) vexatiously and unnecessarily seizes the property of any person on

the pretence of seizing or searching for any narcotic drug or

psychotropic substance or other article liable to be confiscated under

this Act, or of seizing any document or other article liable to be seized

under section 42, section 43 or section 44; or (c) vexatiously and

unnecessarily detains, searches or arrests any person, shall be

punishable with imprisonment for a term which may extend to six

months or with fine which may extend to one thousand rupees, or with

both. (2) Any person wilfully and maliciously giving false information

and so causing an arrest or a search being made under this Act shall be

punishable with imprisonment for a term which may extend to two

years or with fine or with both.

55. As argued by Mr. Sushil Kumar Jain, Senior Advocate appearing for the

Appellant, the process under the NDPS Act begins, when a competent officer, as

specified in Section 41(2), empowered by a general order of the Central

188

Government or the State Government, has reason to believe, either from his

personal knowledge or from information given by any person, whose name need

not be disclosed, and taken down in writing, that any person has committed an

offence punishable under the NDPS Act or any narcotic drug, psychotropic

substance or any document, article etc. as mentioned in Section 41(2) is kept

concealed in any building conveyance or place.

56. The power of an officer empowered under Section 41(2) to

authorize arrest or search, is subject to his having reason to believe

from personal knowledge or information given by any person and

taken in writing, that the person has committed an offence

punishable under the NDPS Act or that any narcotic drug or

psychotropic substance or controlled substance in respect of which

any offence under the NDPS Act has been committed, or any

document or other article which may furnish evidence of the

commission of such offence or any illegally acquired property or any

document or other article which may furnish evidence of holding any

illegally acquired property which is liable for seizure or freezing or

forfeiture under Chapter VA of this Act, is kept or concealed in any

building, conveyance or place.

57. Section 42 enables a duly empowered officer to enter any building,

conveyance or place, conduct a search, seize narcotic drugs, psychotropic

substances, and other articles in accordance with Section 42(1)(c), and detain,

search or even arrest any person, subject to his having “the reason to believe,

from personal knowledge or information given by any person and

189

taken down in writing that any narcotic drug, or psychotropic

substance, or controlled substance in respect of which an offence

punishable under this Act has been committed or any document or

other article which may furnish evidence of the commission of such

offence or any illegally acquired property or any document or other

article which may furnish evidence of holding any illegally acquired

property which is liable for seizure or freezing or forfeiture under

Chapter V-A of this Act is kept or concealed in any building,

conveyance or enclosed place.”

58. Section 42(2) requires the officer taking down information and/or recording

the grounds of his belief, to send a copy thereof to his immediate superior within 72

hours. Section 43 enables any officer of any of the departments mentioned in

Section 42 to make arrests and seizures of inter alia narcotic drugs and

psychotropic substances in public places, subject to his having reason to believe

that an offence under the NDPS Act has been committed, and along with such drug

or substance, any animal or conveyance or article liable to confiscation under the

NDPS Act, any document or other article, which he has reason to believe may

furnish evidence of the commission of an offence punishable under the NDPS Act,

or any document or other article which may furnish evidence of holding any illegally

acquired property, which is liable for seizure or freezing or forfeiture under Chapter

VA of the NDPS Act. The safeguards in Sections 41(2), 42 and 43 also apply to the

exercise of powers under Section 44 of entry, search, seizure and arrest in relation

to coca plant, opium, poppy and cannabis plant by officers empowered and/or

authorized under Section 42. The Power of an officer empowered under Section 42

to attach opium, poppy, cannabis plant or coca plant under Section 48 is subject to

his having reason to believe that the same have illegally been cultivated.

190

59. The condition precedent for exercise of power under Sections

41(2), 42(1), 43 or 44 is “reason to believe” and not just reason to

“suspect” that the circumstances specified in the aforesaid provisions

for action thereunder exist. The use of the words “reason to believe”

in Sections 41, 42, 43 and 48 is in contradistinction with use of the

phrase “Reason to Suspect”, in Section 49 of the NDPS Act.

60. In A. S. Krishnan and Ors. v. State of Kerala

4

, cited by Mr.

Sushil Kumar Jain, this Court held:-

“9. ….“Reason to believe” is another facet of the state of mind.

“Reason to believe” is not the same thing as “suspicion” or

“doubt” and mere seeing also cannot be equated to believing.

“Reason to believe” is a higher level of state of mind. Likewise

“knowledge” will be slightly on a higher plane than “reason to

believe”. A person can be supposed to know where there is a direct

appeal to his senses and a person is presumed to have a reason to

believe if he has sufficient cause to believe the same.

61. In Income Tax Officer, I Ward, District VI, Calcutta and

Ors. v. Lakhmani Mewal Das

5

cited by Mr. Jain, this court held:-

“8. ……..The expression “reason to believe” does not mean a purely

subjective satisfaction on the part of the Income Tax Officer. The reason

must be held in good faith. It cannot he merely a pretence. It is open to

the court to examine whether the reasons for the formation of the belief

have a rational connection with or a relevant bearing on the formation

of the belief and are not extraneous or irrelevant for the purpose of the

section.”

4 (2004) 11 SCC 576

5 (1976) 3 SCC 757

191

62. The absence of “reasons to believe” would render entry,

search, seizure or arrest, Sections 41(2) 42, 43 and 44 of the NDPS

Act bad in law and also expose the officer concerned to disciplinary

action as also punishment under Section 58 for a “vexatious” entry,

search, seizure or arrest, as argued by Mr. Jain.

63. The power of an officer authorised under Section 42, to stop and search

conveyance under Section 49, is subject to his having reasons to suspect that any

animal or conveyance is, or is about to be, used for the transport of any narcotic

drug or psychotropic substance or controlled substance, in respect of which he

suspects that any provision of the NDPS Act has been, or is being, or is about to be,

contravened.

64. Section 50(1) gives the option to a person, to be personally searched

under Section 41/42, to require that he be taken before the nearest Magistrate or

Gazetted Officer, in whose presence he might be searched. If he cannot be taken

to the nearest Magistrate or Gazetted Officer, for the reasons contained in Section

50(5), the officer authorized under Section 42 may proceed to search him, as

provided under Section 100 of the Cr.P.C.

65. Section 50(5), inserted by amendment in 2001, does not dilute the

safeguards in the preceding sub-sections for search of a person in the presence of a

Magistrate or Gazetted Officer, if such person so requires. It is only in very urgent

cases, that a person can be examined in accordance with Section 50(5). After the

search is so conducted in terms of Section 50(5), the Officer would have to record

the reasons for the belief, which necessitated such search, in the absence of a

Magistrate or Gazetted Officer, and send a copy thereof to his immediate superior

192

officer within 72 hours. [Section 50(6)].Section 51 makes the provisions of the

Cr.P.C. applicable to all warrants, arrests, searches and seizures under the NDPS

Act, insofar as they are not inconsistent with the NDPS Act.

66. Section 52(1) of the NDPS Act provides that any officer arresting a

person under Section 41, Section 42, Section 43 or Section 44 shall,

as soon as may be, inform him of the grounds for such arrest.

Section 52(2) requires 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. Sub-section (3) of Section 52 requires that every

person arrested and article seized under sub-section (2) of Section

41, Section 42, Section 43 or Section 44 shall be forwarded without

unnecessary delay to—

(a) the Officer-in-Charge of the nearest Police Station, or

(b) the officer empowered under Section 53.

67. For imposing a punishment higher than the minimum term of

imprisonment or amount of fine prescribed, the Court is required to

take into account, in addition to such factors as it deems fit, the

following factors:

(a) the use or threat of use of violence or arms by the offender;

(b) the fact that the offender holds a public office and that he has taken

advantage of that office in committing the offence;

(c) the fact that the minors are affected by the offence or the minors are used

for the commission of an offence;

193

(d) the fact that the offence is committed in an educational institution or

social service facility or in the immediate vicinity of such institution or

faculty or in other place to which school children and students resort for

educational, sports and social activities;

(e) the fact that the offender belongs to organised international or any other

criminal group which is involved in the commission of the offence; and

(f) the fact that the offender is involved in other illegal activities facilitated by

commission of the offence.

68. The NDPS Act is a complete code. The NDPS Act specifically

makes some provisions of the Cr.P.C applicable to proceedings under

the NDPS Act. The Act is very specific on which of the provisions of

the Cr.P.C. are to apply to proceedings under the NDPS Act.

69. A careful reading of the provisions of the NDPS Act show:

(i)Words and expressions used in the NDPS Act and not defined in

the said Act, but defined in the Cr.P.C. would, unless the context

otherwise requires, have the meanings assigned to such words and

expressions in the Cr.P.C. [Section 2(xxix)]

(ii)Nothing contained in section 360 of the Criminal Procedure

Code, 1973 or in the Probation of Offenders Act, 1958 is to apply to a

person convicted under the NDPS Act, unless such a person is under 18

years of age. [Section 33].

(iii)Notwithstanding anything contained in the Cr.P.C, Special Courts

constituted under Section 36 of the NDPS Act are to try all offences

punishable with imprisonment for a term of more than three years.

[Section 36A(1)(a)].

(iv) The Cr.P.C does not apply to the power of a Judicial Magistrate to

authorize the detention of a person accused or suspected of an offence

under the NDPS Act, produced before him, in such custody as he thinks

fit, for a period not exceeding 15 days, and that of an Executive

Magistrate to do so for a period not exceeding 7 days. [Section 36A(1)

(b)].

194

(v)Where a person accused or suspected of an offence under the

NDPS Act, is forwarded to a Special Court under Clause (b) of Section

36A of the NDPS act, the Special Court shall have the same power

which a Magistrate, having jurisdiction to try a case, may exercise

under Section 167 of the Cr.P.C., notwithstanding anything to the

contrary in the Cr.P.C. [Section 36A(1)(c)].

(vi)While trying an offence under the NDPS Act, the Special Court

may also try an offence other than an offence under the NDPS Act, with

which the accused may under the Cr.P.C. be charged at the same trial.

[Section 36A(2)].

(vii)Nothing contained in Section 36A of the NDPS Act is to be

deemed to affect the special powers of the High Court regarding bail

under Section 439 of Cr.P.C. [Section 36A(3)].

(viii)In respect of offences under the NDPS Act punishable under

Sections 19 or 24 or 27A thereof involving commercial quantity, the

references in Section 167(2) of the Cr.P.C. to “90 days” where they

occur, are to be construed as reference to 180 days. [Section 36A(4)].

(ix)Notwithstanding anything contained in the Cr.P.C., offences

punishable under NDPS Act, with imprisonment not exceeding three

years might be tried summarily. [Section 36 A(5)]

(x) The High Court might exercise, so far as may be, all the powers of

Appeal and Revision conferred by Chapter XXIX and XXX of the Cr.P.C.

as if a Special Court within the limits of its territorial jurisdiction were a

Court of Session. [Section 36 B]

(xi) Save as otherwise provided in the NDPS Act, the provisions of

the Cr.P.C., (including provisions as to bails and bonds) are to apply to

proceedings before a Special Court and for the purpose of the said

provisions, the Special Court is deemed to be a Court of Session and

the person conducting prosecution before Special Court is deemed to

be a Public Prosecutor. [Section 36 C]

(xii) Until a Special Court is constituted as per the NDPS

(Amendment) Act, 1988, any offence triable by a Special Court, is,

notwithstanding anything in the Cr.P.C., triable by a Court of Session.

[Section 36 D]

195

(xiii)The power of the High Court under Section 407 of the Cr.P.C. to

transfer cases is not affected by Section 36 D (2) in view of the proviso

thereto.

(xiv)Notwithstanding anything in the Cr.P.C. every offence punishable

under the NDPS Act is cognizable. [Section 37(1)(a)]

(xv)Notwithstanding anything in the Cr.P.C., no person accused of

the offences specified in section 37(1)(b) is to be released on bail, on

his own bond, unless the Public Prosecutor has been given the

opportunity to oppose the release on bail, or where the Public

Prosecutor has opposed the release on bail, the Court is satisfied that

there are reasonable grounds for believing that the person is not guilty

of such offence and that he is not likely to commit any offence, while

on bail.

(xvi)The limitations in the Cr.P.C. on grant of bail, are in addition to

the limitations in Section 37(1)(b) of the NDPS Act. [Section 37(2)]

(xvii)Personal search is to be made in accordance with Section 100 of

Cr.P.C. if the person to be searched cannot be taken to the nearest

Magistrate or Gazetted Officer inspite of exercise of option to be

searched before such Magistrate or Gazetted Officer. [Section 50(5)]

(xviii)The provisions of the Cr.P.C. are to apply to all warrants issued

and searches and seizures made under the NDPS Act in so far as they

are not inconsistent with any provision of the NDPS Act. [Section 51]

(xix)Notwithstanding anything contained in the Indian Evidence Act,

1872 or the Cr.P.C., every Court is to treat the inventory, photographs

of narcotic drugs, psychotropic substances etc. as primary evidence of

offence under the NDPS Act. [Section 52A(4)]

70. Under Section 4 of the Cr.P.C all offences under the Indian

Penal Code, 1960, hereinafter referred to as ‘IPC’ are to be

investigated, inquired into and tried or otherwise dealt with according

to the provisions of the Cr.P.C. Offences under any other law might

also be investigated, inquired into, tried and otherwise dealt with

196

according to the same provisions, but subject to any other enactment

in force regulating the manner or place of investigating, inquiring

into, trying or otherwise dealing with such offences. Section 4 of the

Cr.P.C. is set out hereinbelow:

4. Trial of offences under the Indian Penal Code and other laws.

—(1) All offences under the Indian Penal Code (45 of 1860) shall be

investigated, inquired into, tried, and otherwise dealt with according to

the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into,

tried, and otherwise dealt with according to the same provisions, 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 offences.

71. Referring to Section 4(2) of the Cr.P.C Mr. Sushil Kumar Jain,

argued that provisions of the Cr.P.C would apply to all proceedings

under the NDPS Act, unless intention to the contrary was shown. Mr.

Jain also referred to Section 2(xxix) of the NDPS Act in support of his

aforesaid submission.

72. However, Section 5 of the Cr.P.C., set out hereinbelow for

convenience, provides:-

“5. Saving.—Nothing contained in this Code shall, in the absence of a

specific provision to the contrary, affect any special or local law for the

time being in force, or any special jurisdiction or power conferred, or

any special form of procedure prescribed, by any other law for the time

being in force.”

73. Mr. Jain’s argument that the Cr.P.C. would apply to all

proceedings under the NDPS Act, unless a contrary intention is

shown, by reference to Section 4(2) of the Cr.P.C., cannot be

197

sustained, as Section 5 specifically provides that nothing in the Cr.P.C

shall, in the absence of a specific provision to the contrary, affect any

special law in force or any special jurisdiction or power conferred by

any other law. The NDPS Act being a special enactment, nothing in

the Cr.P.C can affect any investigation or inquiry under the NDPS Act,

in the absence of any provision to the contrary in the NDPS Act.

74. Section 2(xxix) of the NDPS Act does not make the provisions

of the Cr.P.C. applicable to any investigation or enquiry under the

NDPS Act. The said Section only provides that words and expressions

used in the NDPS Act, and not defined, but defined in the Cr.P.C. have

the meanings assigned in the Cr.P.C., unless the context otherwise

requires.

75. Section 53 of the NDPS Act provides:

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 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 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 other department 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.

198

76. Section 53 is an enabling provision, which enables the Central Government

or the State Government, by notification in the Official Gazette, to invest any officer

of the Departments mentioned in the said Section, or any other Department of the

Government, with the powers of an Officer in Charge of a Police Station for the

investigation of offences under the said Act.

77. If the provisions of the Cr.P.C were to apply to investigations

under the NDPS Act, it would not have been necessary to invest any

officer under the NDPS Act with the powers of an Officer in Charge of

a Police Station, for the purpose of investigation of an offence under

the NDPS Act, by notification in the Official Gazette. The provisions of

Section 50(5) and 51 of the NDPS Act would also not have been

necessary.

78. There does not appear to be any bar in Section 53 or anywhere else in the

NDPS Act, to officers empowered under Sections 41(2) or 42, also being invested

under Section 53, with the powers of an Officer in Charge of a Police Station for

investigation of offences under Section 53 of the NDPS Act. There being no bar

under the NDPS Act, the same officer empowered under Section 42, who had

triggered the process of an enquiry, and made any search seizure or arrest under

Chapter V of the NDPS Act, on the basis of information provided by an informant, or

on the basis of his own personal knowledge, might investigate into the offence if he

is also invested under Section 53, with the powers of investigation of an Officer in

Charge of a Police Station, for the purpose of investigation of an offence under the

NDPS Act.

79. There does not appear to be any provision in Chapter V or elsewhere in the

199

NDPS Act, which can reasonably be construed to render an officer under Section,

41(2) or 42(1) of the NDPS Act ‘functus officio’ once the entry, search, seizure or

arrest has been made. What Section 42(2) requires is that, an officer who takes

down any information in writing under Section 42(1) or records the grounds of his

belief under the proviso thereto, should send a copy of the information with the

grounds of belief to his immediate official superior, within 72 hours.

80. Section 53A of the NDPS Act provides:

53-A. Relevancy of statements under certain circumstances.—

(1) A statement made and signed by a person before any officer

empowered under Section 53 for the investigation of offences, during

the course of any inquiry or proceedings by such officer, shall be

relevant for the purpose of proving, in any prosecution for an offence

under this Act, the truth of the facts which it contains,—

(a) when the person who made the statement is dead or cannot be

found, or is incapable of giving evidence, or is kept out of the way by

the adverse party, or whose presence cannot be obtained without an

amount of delay or expense which, under the circumstances of the

case, the court considers unreasonable; or

(b) when the person who made the statement is examined as a witness

in the case before the court and the court is of the opinion that, having

regard to the circumstances of the case, the statement should be

admitted in evidence in the interest of justice.

(2) The provisions of sub-section (1) shall, so far as may be, apply in

relation to any proceedings under this Act or the rules or orders made

thereunder, other than a proceeding before a court, as they apply in

relation to a proceeding before a court.

81. Section 53A of the NDPS Act is ex facie contradictory to Section 162 of the

Cr.P.C, which provides that no statement made to a police officer, in course of an

investigation under Chapter XII of the Cr.P.C shall, if reduced to writing, be signed

by the person making it, or used for any purpose at any inquiry or trial in respect of

the offences under investigation, except inter alia to confront him if he gives

evidence as a witness.

82. Section 53A covers any statement made and signed by any person, before

any officer empowered under Section 53 for the investigation of offences, during

the course of any proceedings by such officer, under the NDPS Act, be it an inquiry

200

or investigation. This provision makes it abundantly clear that the principles

embodied in Sections 161/162 of the Cr.P.C have no application to any inquiry or

other proceeding under the NDPS Act, which would include an investigation.

83. The judgments of this Court in State of Delhi v. Shri Ram Lohia

6

and

George v. State of Kerala and Anr.

7

, cited by Mr. Jain, which were rendered in

the context of statements under Section 164 of the Cr.P.C. The judgments are of no

assistance to the Appellants as they are not binding precedents in respect of the

issues referred to this Bench. Sections 161 to 164 of the Cr.P.C. have no

application to proceedings under the NDPS Act, as discussed earlier.

84. The judgment of this Court in Munshi Prasad and Ors. v. State of

Bihar

8

cited by Mr. Jain, in the context of reliance on a post mortem report in a

murder trial, is also of no assistance to the appellant, as this Court had no occasion

to deal with Section 52A(4) or 54 or 66 or any other provision of the NDPS Act.

85. The NDPS Act, being a special statute, and in any case a later Central Act,

the provisions of the NDPS Act would prevail, in case of any inconsistency between

the NDPS Act and the Evidence Act. Section 52A(4) expressly provides:

“Notwithstanding anything contained in the Indian Evidence Act, 1872 or

the Code of Criminal Procedure, 1973, every Court trying an offence under

this Act, shall treat the inventory, the photographs of narcotic drugs,

psychotropic substances, controlled substances or conveyances and any

list of samples drawn under sub-section (2) and certified by the

Magistrate, as primary evidence in respect of such offence.”

86. The Evidence Act would however apply to a trial under the

NDPS Act in other respects, unless a contrary intention appears from

6 AIR 1960 SC 490

7 (1998) 4 SCC 605

8. (2002) 1 SCC 351

201

any specific provision of the NDPS Act. The previous statement of a

witness, even if admissible in evidence cannot be used against the

witness unless the witness is confronted with the previous statement

and given an opportunity to explain, as held by this Court in Murli

and Anr. v. State of Rajasthan

9

cited by Mr. Jain. However, certain

documents not otherwise admissible under the Evidence Act, unless

proved by evidence, may be admissible under Section 52A(4) of the

NDPS Act, subject to the fulfilment of the conditions of that section.

87. Section 54 of the NDPS Act, the constitutional vires whereof has been

upheld in Noor Aga (supra) provides:

54. Presumption from possession of illicit articles .—In trials under

this Act, it may be presumed, unless and until the contrary is proved, that

the accused has committed an offence under this Act in respect of—

(a) any narcotic drug or psychotropic substance or controlled substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land

which he has cultivated;

(c) any apparatus specially designed or any group of utensils specially

adopted for the manufacture of any narcotic drug or psychotropic

substance or controlled substance; or

(d) any materials which have undergone any process towards the

manufacture of a narcotic drug or psychotropic substance or controlled

substance, or any residue left of the materials from which any narcotic

drug or psychotropic substance or controlled substance has been

manufactured,

for the possession of which he fails to account satisfactorily.

88. Section 66 of the NDPS Act provides:-

“66. Presumption as to documents in certain cases.—Where any

document—

9 (2009) 9 SCC 417

202

(i) is produced or furnished by any person or has been seized from the

custody or control of any person, in either case, under this Act or under

any other law, or

(ii) has been received from any place outside India (duly authenticated

by such authority or person and in such manner as may be prescribed

by the Central Government) in the course of investigation of any

offence under this Act alleged to have been committed by a person,

and such document is tendered in any prosecution under this Act in

evidence against him, or against him and any other person who is tried

jointly with him, the court shall—

(a) presume, unless the contrary is proved, that the signature and every

other part of such document which purports to be in the handwriting of

any particular person or which the court may reason ably assume to

have been signed by, or to be in the handwriting of, any particular

person, is in that person’s handwriting; and in the case of a document

executed or attested, that it was executed or attested by the person by

whom it purports to have been so executed or attested;

(b) admit the document in evidence, notwithstanding that it is not duly

stamped, if such document is otherwise admissible in evidence;

(c) in a case falling under clause (i), also presume, unless the contrary

is proved, the truth of the contents of such document.”

89. Section 67 of the NDPS Act provides that any officer referred to in Section

42, who is duly authorized in this behalf by the Central or State Government, may

during the course of any inquiry:

(i) 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;

(ii) require any person to produce or deliver any document or thing useful

or relevant to the enquiry;

(iii) examine any person acquainted with the facts and circumstances of

the case.

90. Legislature has in its wisdom used the expression

“investigation of the offence” in Section 53, and the term “inquiry”

in Section 67. Even though in common parlance “inquiry” and

“investigation” are used interchangeably, “investigation” in Section

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53 and “inquiry” in Section 67 cannot be construed to mean the

same.

91. It is well settled that, when different words are used in the

same statute, there is a presumption that they are not used in the

same sense. Accordingly, in T.A. Krishnaswamy v. State of

Madras

10

, this Court held that the words “test” and “analysis” used

in Rule 40 of the Central Rules under the Drugs Act 1940 were to be

given different meanings.

92. Of course, too much weight cannot be given to the

presumption arising out of use of different words in different parts

of a statute, when dealing with a long complicated statute, for

example a consolidating statute, with incongruous provisions

lumped together. Even otherwise, the context in which the words

have been used is relevant, as a less careful draftsman may use

different words to convey the same meaning, in a hurriedly enacted

statute. This proposition finds support from Kanhaiyalal

Vishindas Gidwani v. Arun Dattatreya Mehta

11

. A construction

deriving support from differing phraseology in different sections of a

statute, may be negatived if it leads to unreasonable or irrational

results.

10. AIR 1966 SC 1022

11. (2001) 1 SCC 78

204

93. In the NDPS Act, the Legislature appears to have consciously

intended “inquiry” and “investigation” to convey a different meaning.

Accordingly Section 53A refers to a statement before any officer

empowered under Section 53 for the investigation of offences during

the course of any inquiry or proceeding by such officer.

94. The NDPS Act does not define the expression “investigation”

or the expression “inquiry”. However, Section 2(xxix) of the NDPS

Act provides:

“2(xxix). words and expressions used herein and not defined but

defined in the Code of Criminal Procedure, 1973 (2 of 1974) have the

meanings respectively assigned to them in that Code.”

95. The definition of the terms ‘inquiry’ and ‘investigation’ as contained in

Sections 2(g) and 2(h) of the Cr.P.C. are as follows:

“2.(g) “inquiry” means every inquiry, other than a trial, conducted

under this Code by a Magistrate or Court;

(h) “investigation” includes all the proceedings under this Code for the

collection of evidence conducted by a police officer or by any person

(other than a Magistrate) who is authorised by a Magistrate in this

behalf”

96. The meaning of a word or expression used in a statute can be construed

and understood as per its definition, unless the “context otherwise requires”. The

definition of inquiry in Section 2(g) of the Cr.P.C. does not help to interpret the word

inquiry in Section 67 of the NDPS Act or in any other provision of Chapter V thereof,

since an inquiry under Chapter V of the NDPS Act is not by any Magistrate or Court.

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97. It is well settled that a word not specifically defined in a statute may be

interpreted as per its ordinary meaning, which may be ascertained by reference to

a dictionary.As per the Concise Oxford English Dictionary (Eleventh Edition) the

word investigate means ‘carry out a systematic or formal enquiry into an incident

or allegation as to establish the truth’. Investigation, is the act of investigating.

The word “enquire” is, as per the same dictionary, to ask for information. It also

means “investigate”. Enquiry is the act of asking for information. It is an official

investigation. Words and phrases in a statute have to be construed in

the context in which they have been used. The statute has to be

read as a whole.

98. The words “inquiry” and “investigation” have also been used

in statutes such as the Central Excise Act 1944, the Customs Act

1962, the Railway Property (Unlawful Possession) Act 1966, and the

Cr.P.C. which also prescribe a procedure for proceeding against

offenders. These statutes may be taken into consideration to

construe the meaning of the expression “inquiry” in Section 67 of the NDPS Act

and the difference, if any, between the expression “inquiry” as used in Section 67

of the NDPS Act and the expression “investigation” as used in Section 53 of the said

Act. While Sections 155-157 of the Cr.P.C. speak of investigation of cognizable

offences, Section 8 of the Railway Property (Unlawful Possession) Act, speaks of

inquiry into the charge of commission of an offence under that Act, Section 14 of

the Central Excise Act contemplates inquiry for the purposes of the Central Excise

Act which could also include inquiry for the prosecution of an offence under the said

Act and Section 107 of the Customs Act speaks of inquiry in connection with

smuggling.

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99. It seems that the word ‘inquiry’ has been used in the Railway Property

(Unlawful Possession) Act, Customs Act, Central Excise Act in the same sense as the

word ‘investigation’ in the Cr.P.C. in respect of an offence. The choice of the

expression ‘inquiry’ in preference to investigation, in the statutes named above,

except the Cr.P.C., may perhaps be linked to the definition of ‘inquiry’ in the Cr.P.C.

to mean an inquiry other than a trial by a Magistrate or a Court, since inquiry under

those statutes enjoy the status of judicial proceedings, for the purposes of Sections

193 and 228 of the IPC. However, it is patently clear that the two expressions do

not convey the same meaning in the NDPS Act.

100. Having regard to the meaning of the expressions investigate/investigation

and enquire/enquiry given in the Dictionary referred to above, the use of the

expressions in the statutes referred to above and having regard to the language

and tenor of Sections 53, 53A, and Section 67 of the NDPS Act, the expression

“inquiry” may reasonably be construed as a generic expression, which could

include the investigation of an offence. An inquiry as contemplated in Section 67

is the collection of information generally, to find out if there has been any

contravention of the NDPS Act, whereas investigation is the probing of an offence

under the NDPS Act and collection of materials to find out the truth of the case

sought to be made out against an accused offender. However investigation may

follow an enquiry or be part of an enquiry. This is evident from a reading of the

NDPS Act as a whole.

101. The difference between the terms “investigation” and “inquiry” is,

however, not really material to the issue of whether an officer invested under

Section 53 with the powers of the Officer in Charge of a Police Station for

investigation of an offence under the NDPS Act, is a police officer within the

meaning of Section 25 of the Evidence Act or whether a statement made in an

inquiry as contemplated in Section 67, can be used against an accused offender in

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the trial of an offence under the NDPS Act.

102. An officer empowered under Section 53 with the powers of an Officer in

Charge of a Police Station for the investigation of an offence, also has the power to

make an inquiry. This is clear from the language used in Section 53A(1) of the

NDPS Act. The words “A statement made and signed by a person before any officer

empowered under Section 53 for the investigation of offences, during the course of

any inquiry or proceedings by such officer” clinches the issue. The officer

empowered under Section 53, with the power of an Officer in Charge of a Police

Station, can obviously make an inquiry within the meaning of Section 67 to find out

whether there has been any contravention of the NDPS Act. A statement made

before such an officer in course of any inquiry or other proceeding, which is taken

down in writing and signed by the person making it, may in certain circumstances,

be relevant for the purpose of proving, in any prosecution for an offence under the

NDPS Act, the truth of the facts it contains.

103. The power of an officer to investigate is not derived from Section 53, which

as observed earlier in this judgment, is an enabling provision, which empowers the

Central/State Government to invest an officer with the powers of an Officer in

Charge of a Police Station, for the purpose of investigation of an offence under the

NDPS Act. The power to invest an officer with the powers of an Officer in Charge of

a Police Station flows from Section 53. The authority to investigate into an offence

is implicit in the wider power to make an inquiry in connection with the

contravention of any provision of the NDPS Act.

104.An enquiry may be carried out by an officer referred to in

Section 42 of the NDPS Act, if empowered in this behalf. This is clear

from Section 67. The same officer can also investigate an offence

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under the NDPS Act, if he is also invested under Section 53, with the

powers of an Officer in Charge of a Police Station, for the purpose of

investigation of an offence under the NDPS Act.

105. The power of an authorized officer referred to in Section 42, to make an

inquiry is not derived from Section 67. This is clear from the language used in

Section 67, which reads “any officer referred to in Section 42 who is authorised in

this behalf by the Central Government or a State Government may, during the

course of any enquiry in connection with the contravention of any provisions of this

Act call for information etc.” The power to make an enquiry flows from the various

provisions of Chapter V of the NDPS Act.

106. Section 67 empowers an authorized officer, referred to in Section 42, to do

the following acts during the course of an enquiry:

“(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.”

107. Investigation of an offence under the NDPS Act, is a part of an inquiry

under Chapter V of the said Act. Investigation of an offence under the NDPS Act can

be carried out by the same officer empowered under Section 42, who triggered the

proceedings under Chapter V of the NDPS Act and carried out search, seizure and/or

arrest, if that officer is also invested under Section 53 of the NDPS Act, with the

powers of an Officer in Charge of a Police Station, for the purpose of investigation.

209

108. In Mukesh Singh v. State (Narcotic Branch of Delhi)

12

a

Constitution Bench of this Court, unanimously held that an

investigation is not vitiated only because the same officer, who was

the complainant against the accused offender also investigated into

the offence as Investigating Officer. The investigation may also be carried

out by a different officer, invested under Section 53 with the powers of an Officer in

Charge of the Police Station for the purpose of investigation under the NDPS Act.

Section 52(3) of the NDPS Act, thus, provides:-

“(3) Every person arrested and article seized under sub-section (2) of

Section 41, Section 42, Section 43 or Section 44 shall be forwarded

without unnecessary delay to—

(a) the officer-in-charge of the nearest police station, or

(b) the officer empowered under Section 53.”

109. If the officer empowered under Section 53, is the same person as the

officer empowered under Section 42, every arrested person and article seized

under Sections 41(2), 42, 43 or 44 will have to be forwarded, without delay, to the

Officer in Charge of the nearest Police Station. If the officer referred to in Section

42, is not invested with powers under Section 53, persons arrested and the articles

seized by him under Sections 41(2), 42 etc. might be forwarded either to the

Officer in Charge of the nearest Police Station or to the officer invested under

Section 53 of the NDPS Act, with the powers of an Officer in Charge of a Police

Station, for the purpose of investigation of an offence.

110. The language and tenor of Section 67 or Sections 41/42 does

not support the contention that an inquiry can only be made by an

officer referred to in Section 42, who is duly authorized, before

exercise of the powers of entry, search, seizure or arrest, or at the

12. (2020) SCC Online SC 700

210

stage of entry, search, seizure and arrest, but not afterwards. The

exercise of power under Sections 41/42 of the NDPS Act does not

necessarily have to be preceded by an inquiry. If an inquiry were to

be restricted to the stage prior to the exercise of the power of entry,

search, seizure and arrest or to the stage of making an entry, search,

seizure or arrest, the NDPS Act would have specifically provided so.

There is no such provision, either express or implied. It is not

permissible to read into Sections 41, 42 etc the words “after an

inquiry” which do not exist in those provisions. Nor is it permissible

to read the words “before or at the time of entry, search, seizure or

arrest” after the words “during the course of any enquiry” in Section

67.

111.The power conferred by Section 67 on an officer referred to in

Section 42, duly authorised by the Central/State Government in this

behalf, to call for information, require production of any document or

thing or to examine any person, etc. is exercisable in course of any

inquiry. The power could be exercised at any stage of the enquiry,

before a complaint is filed. The powers can be exercised prior to or

after exercise of powers under Sections 41/42 and would include the

stage of investigation of an offence by an officer referred to in Section

42, if he is also invested with powers under Section 50 of the NDPS

Act.

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112.An officer referred to in Section 42 of the NDPS Act, if not

invested with powers under Section 53 of the said Act, derives the

power to call for information, require production of documents and

things and to examine persons from Section 67 of the NDPS Act. The

powers of investigation of an Officer in Charge of a Police Station

include such powers. An officer invested with powers under Section

53 can also make an enquiry. This is clear from the use of the words

“A statement made and signed by a person before any officer

empowered under Section 53 for the investigation of offences, during

the course of any inquiry or proceedings by such officer, shall be

relevant...” in Section 53A(1). The benefit of Section 53A(1) would

not be available in the case of a similar statement made before an

officer empowered under Section 42, but not under Section 53 of the

NDPS Act.

113.If, after an inquiry or investigation, a complaint is filed, and

the Special Court takes cognizance of the offence, any statements,

documents or other things obtained in the inquiry/investigation may

be tendered and proved by the prosecution in the trial against the

offender unless the statement and/or document and/or thing has

been obtained by any promise, inducement, coercion, threat, or

intimidation. The question of whether any statement has been

obtained by promise, coercion, threat etc. and/or whether

any particular officer, is authorized under Section 42 or

invested with powers under Section 53 are matters of trial.

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The Prosecution has to establish the charges against the

offender, in accordance with law, at the trial.

114.Chapter XII of the Cr.P.C governs information to the police and

the power of the police to investigate into offences. The relevant

provisions of the Chapter XII are set out hereinbelow:-

“154. Information in cognizable cases.—(1) Every information

relating to the commission of a cognizable offence, if given orally to an

officer in charge of a police station, shall be reduced to writing by him

or under his direction, and be read over to the informant; and every

such information, whether given in writing or reduced to writing as

aforesaid, shall be signed by the person giving it, and the substance

thereof shall be entered in a book to be kept by such officer in such

form as the State Government may prescribe in this behalf.

*****

(3) Any person aggrieved by a refusal on the part of an officer in

charge of a police station to record the information referred to in sub-

section (1) may send the substance of such information, in writing

and by post, to the Superintendent of Police concerned who, if

satisfied that such information discloses the commission of a

cognizable offence, shall either investigate the case himself or direct

an investigation to be made by any police officer subordinate to him,

in the manner provided by this Code, and such officer shall have all

the powers of an officer in charge of the police station in relation to

that offence.

155. Information as to non-cognizable cases and

investigation of such cases.—(1) When information is given to an

officer in charge of a police station of the commission within the

limits of such station of a non-cognizable offence, he shall enter or

cause to be entered the substance of the information in a book to be

kept by such officer in such form as the State Government may

prescribe in this behalf, and refer the informant to the Magistrate.

(2) No police officer shall investigate a non-cognizable case without the

order of a Magistrate having power to try such case or commit the case

for trial.

(3) Any police officer receiving such order may exercise the same

powers in respect of the investigation (except the power to arrest

without warrant) as an officer in charge of a police station may exercise

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in a cognizable case.

(4) Where a case relates to two or more offences of which at least one

is cognizable, the case shall be deemed to be a cognizable case,

notwithstanding that the other offences are non-cognizable.

156. Police officer’s power to investigate cognizable case.—(1)

Any officer in charge of a police station may, without the order of a

Magistrate, investigate any cognizable case which a Court having

jurisdiction over the local area within the limits of such station would

have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage

be called in question on the ground that the case was one which such

officer was not empowered under this section to investigate. (3) Any

Magistrate empowered under section 190 may order such an

investigation as above-mentioned.

157. Procedure for investigation.—(1) If, from information received

or otherwise, an officer in charge of a police station has reason to

suspect the commission of an offence which he is empowered under

section 156 to investigate, he shall forthwith send a report of the same

to a Magistrate empowered to take cognizance of such offence upon a

police report and shall proceed in person, or shall depute one of his

subordinate officers not being below such rank as the State

Government may, by general or special order, prescribe in this behalf,

to proceed, to the spot, to investigate the facts and circumstances of

the case, and, if necessary, to take measures for the discovery and

arrest of the offender: Provided that—

(a) when information as to the commission of any such offence is given

against any person by name and the case is not of a serious nature, the

officer in charge of a police station need not proceed in person or

depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer in charge of a police station that there is

no sufficient ground for entering on an investigation, he shall not

investigate the case.

158. Report how submitted.—(1) Every report sent to a Magistrate

under section 157 shall, if the State Government so directs, be

submitted through such superior officer of police as the State

Government, by general or special order, appoints in that behalf.

(2) Such superior officer may give such instructions to the officer in

charge of the police station as he thinks fit, and shall, after recording

such instructions on such report, transmit the same without delay to

the Magistrate.

xxx xxx xxx

160. Police officer’s power to require attendance of witnesses.

—(1) Any police officer making an investigation under this Chapter

214

may, by order in writing, require the attendance before himself of any

person being within the limits of his own or any adjoining station who,

from the information given or otherwise, appears to be acquainted with

the facts and circumstances of the case; and such person shall attend

as so required:

Provided that no male person under the age of fifteen years or above

the age of sixty-five years or a woman or a mentally or physically

disabled person shall be required to attend at any place other than the

place in which such male person or woman resides.

(2) The State Government may, by rules made in this behalf, provide

for the payment by the police officer of the reasonable expenses of

every person, attending under sub-section (1) at any place other than

his residence.

161. Examination of witnesses by police.—(1) Any police officer

making an investigation under this Chapter, or any police officer not

below such rank as the State Government may, by general or special

order, prescribe in this behalf, acting on the requisition of such officer,

may examine orally any person supposed to be acquainted with the

facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to

such case put to him by such officer, other than questions the answers

to which would have a tendency to expose him to a criminal charge or

to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to

him in the course of an examination under this section; and if he does

so, he shall make a separate and true record of the statement of each

such person whose statement he records.

Provided that statement made under this sub-section may also be

recorded by audio-video electronic means.

162.Statement to police not to be signed- Use of statements

in evidence.- (1) No statement made by any person to a police officer

in the course of an investigation under this Chapter, shall, if reduced to

writing, be signed by the person making it; nor shall any such

statement or any record thereof, whether in a police diary or otherwise,

or any part of such statement or record, be used for any purpose, save

as hereinafter provided, at any inquiry or trial in respect of any offence

under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such

inquiry or trial whose statement has been reduced into writing as

aforesaid, any part of his statement, if duly proved, may be used by the

accused, and with the permission of the Court, by the prosecution, to

contradict such witness in the manner provided by section 145 of the

215

Indian Evidence Act , 1872 (1 of 1872); and when any part of such

statement is so used, any part thereof may also be used in the re-

examination of such witness, but for the purpose only of explaining any

matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement

falling within the provisions of clause (1) of section 32 of the Indian

Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27

of that Act.

Explanation.—An omission to state a fact or circumstance in the

statement referred to in sub-section (1) may amount to contradiction if

the same appears to be significant and otherwise relevant having

regard to the context in which such omission occurs and whether any

omission amounts to a contradiction in the particular context shall be a

question of fact.

163. No inducement to be offered.—(1) No police officer or other

person in authority shall offer or make, or cause to be offered or made,

any such inducement, threat or promise as is mentioned in section 24

of the Indian Evidence Act, 1872 (1 of 1872).

(2) But no police officer or other person shall prevent, by any caution or

otherwise, any person from making in the course of any investigation

under this Chapter any statement which he may be disposed to make

of his own free will: Provided that nothing in this sub-section shall affect

the provisions of sub-section (4) of section 164.

164. Recording of confessions and statements.—(1) Any

Metropolitan Magistrate or Judicial Magistrate may, whether or not he

has jurisdiction in the case, record any confession or statement made

to him in the course of an investigation under this Chapter or under

any other law for the time being in force, or at any time afterwards

before the commencement of the inquiry or trial:

Provided that any confession or statement made under this sub-section

may also be recorded by audio-video electronic means in the presence

of the advocate of the person accused of an offence:

Provided further that no confession shall be recorded by a police officer

on whom any power of a Magistrate has been conferred under any law

for the time being in force.

(2) The Magistrate shall, before recording any such confession, explain

to the person making it that he is not bound to make a confession and

that, if he does so, it may be used as evidence against him; and the

Magistrate shall not record any such confession unless, upon

questioning the person making it, he has reason to believe that it is

being made voluntarily.

(3) If at any time before the confession is recorded, the person

appearing before the Magistrate states that he is not willing to make

the confession, the Magistrate shall not authorise the detention of such

216

person in police custody.

* * * * * * *

165. Search by police officer.—(1) Whenever an officer in charge of

a police station or a police officer making an investigation has

reasonable grounds for believing that anything necessary for the

purposes of an investigation into any offence which he is authorised to

investigate may be found in any place within the limits of the police

station of which he is in charge, or to which he is attached, and that

such thing cannot in his opinion be otherwise obtained without undue

delay, such officer may, after recording in writing the grounds of his

belief and specifying in such writing, so far as possible, the thing for

which search is to be made, search, or cause search to be made, for

such thing in any place within the limits of such station.

(2) A police officer proceeding under sub-section (1), shall, if

practicable, conduct the search in person.

(3) If he is unable to conduct the search in person, and there is no

other person competent to make the search present at the time, he

may, after recording in writing his reasons for so doing, require any

officer subordinate to him to make the search, and he shall deliver to

such subordinate officer an order in writing, specifying the place to be

searched, and so far as possible, the thing for which search is to be

made; and such subordinate officer may thereupon search for such

thing in such place.

(4) The provisions of this Code as to search-warrants and the general

provisions as to searches contained in section 100 shall, so far as may

be, apply to a search made under this section.

(5) Copies of any record made under sub-section (1) or sub-section (3)

shall forthwith be sent to the nearest Magistrate empowered to take

cognizance of the offence, and the owner or occupier of the place

searched shall, on application, be furnished, free of cost, with a copy of

the same by the Magistrate.

* * * *

168. Report of investigation by subordinate police officer.—

When any subordinate police officer has made any investigation under

this Chapter, he shall report the result of such investigation to the

officer in charge of the police station.

169. Release of accused when evidence deficient.—If, upon an

investigation under this Chapter, it appears to the officer in charge of

the police station that there is not sufficient evidence or reasonable

ground of suspicion to justify the forwarding of the accused to a

Magistrate, such officer shall, if such person is in custody, release him

on his executing a bond, with or without sureties, as such officer may

direct, to appear, if and when so required, before a Magistrate

empowered to take cognizance of the offence on a police report, and to

217

try the accused or commit him for trial.

170. Cases to be sent to Magistrate, when evidence is

sufficient.—(1) If, upon an investigation under this Chapter, it appears

to the officer in charge of the police station that there is sufficient

evidence or reasonable ground as aforesaid, such officer shall forward

the accused under custody to a Magistrate empowered to take

cognizance of the offence upon a police report and to try the accused

or commit him for trial, or, if the offence is bailable and the accused is

able to give security, shall take security from him for his appearance

before such Magistrate on a day fixed and for his attendance from day

to day before such Magistrate until otherwise directed.

172. Diary of proceedings in investigation.—(1) Every police

officer making an investigation under this Chapter shall day by day

enter his proceedings in the investigation in a diary, setting forth the

time at which the information reached him, the time at which he began

and closed his investigation, the place or places visited by him, and a

statement of the circumstances ascertained through his investigation.

(1A) The statements of witnesses recorded during the course of

investigation under section 161 shall be inserted in the case diary.

(1B) The diary referred to in sub-section (1) shall be a volume and duly

paginated.

(2) Any Criminal Court may send for the police diaries of a case under

inquiry or trial in such Court, and may use such diaries, not as evidence

in the case, but to aid it in such inquiry or trial.

(3) Neither the accused nor his agents shall be entitled to call for such

diaries, nor shall he or they be entitled to see them merely because

they are referred to by the Court; but, if they are used by the police

officer who made them to refresh his memory, or if the Court uses

them for the purpose of contradicting such police officer, the provisions

of section 161 or section 145, as the case may be, of the Indian

Evidence Act, 1872 (1 of 1872), shall apply.

173. Report of police officer on completion of investigation.—(1)

Every investigation under this Chapter shall be completed without

unnecessary delay.

(1A) The investigation in relation to rape of a child may be completed

within three months from the date on which the information was

recorded by the officer in charge of the police station.

(2) (i) As soon as it 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, stating—

(a) the names of the parties;

(b) the nature of the information;

218

(c) the names of the persons who appear to be acquainted with the

circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by

whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with

or without sureties;

(g) whether he has been forwarded in custody under section 170.

(h) whether the report of medical examination of the woman has been

attached where investigation relates to an offence under section 376,

376A, 376B, 376C 2 [376D or section 376E of the Indian Penal Code (45

of 1860)].

(ii) The officer shall also communicate, in such manner as may be

prescribed by the State Government, the action taken by him, to the

person, if any, by whom the information relating to the commission of

the offence was first given.

* * * *

(5) When such report is in respect of a case to which section 170

applies, the police officer shall forward to the Magistrate along with the

report—

(a) all documents or relevant extracts thereof on which the prosecution

proposes to rely other than those already sent to the Magistrate during

investigation;

(b) the statements recorded under section 161 of all the persons whom

the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement

is not relevant to the subject-matter of the proceedings or that its

disclosure to the accused is not essential in the interests of justice and

is inexpedient in the public interest, he shall indicate that part of the

statement and append a note requesting the Magistrate to exclude that

part from the copies to be granted to the accused and stating his

reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so

to do, he may furnish to the accused copies of all or any of the

documents referred to in sub-section (5).

(8) Nothing in this section shall be deemed to preclude further

investigation in respect of an offence after a report under sub-section

(2) has been forwarded to the Magistrate and, where upon such

investigation, the officer in charge of the police station obtains further

evidence, oral or documentary, he shall forward to the Magistrate a

further report or reports regarding such evidence in the form

prescribed; and the provisions of sub-sections (2) to (6) shall, as far as

219

may be, apply in relation to such report or reports as they apply in

relation to a report forwarded under sub-section (2).”

115.Reference may also be made to Section 190 of the Cr.P.C set

out hereinbelow:-

“190. Cognizance of offences by Magistrates.—(1) Subject to the

provisions of this Chapter, any Magistrate of the first class, and any

Magistrate of the second class specially empowered in this behalf under

sub-section (2), may take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such

offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police

officer, or upon his own knowledge, that such offence has been

committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of

the second class to take cognizance under sub-section (1) of such

offences as are within his competence to inquire into or try.”

116.Chapter XII of the Cr.P.C comprising Sections 154 to 176

relating to information to the police and their powers to investigate

have no application to any inquiry or investigation under the NDPS

Act, except to the extent expressly provided in the NDPS Act.

Sections 161 and 162 of the Cr.P.C. are not attracted in the case of

any inquiry or investigation by the officer designated under the NDPS

Act.

220

117.The provisions of the Cr.P.C. only apply to all warrants issued

and searches and seizures made under the NDPS Act, in so far as

they are not inconsistent with the provisions of the NDPS Act, as

provided in Section 51 of the NDPS Act and to the search of a person,

without complying with the requirement to take the person to be

searched, to the nearest Gazetted Officer or Magistrate, as provided

in Section 50(5) of the NDPS Act. Of course, the principles of

Section 163 of the Cr.P.C. are implicit in the provisions of the

NDPS Act relating to inquiry and investigation though the

said Section may not apply to such inquiry or investigation.

This is because the bar of Article 20(3) of the Constitution of

India has to be read into every statute in spirit and

substance. There can be no question of obtaining any

statement by any inducement, promise or threat.

118.The NDPS Act as observed above, is a complete code. A

comparison of the various provisions of Chapter XII of the Cr.P.C with

those of Chapter V of the NDPS Act also makes it clear that the

provisions in Chapter V of the NDPS Act are independent of, and not

controlled by the provisions of the Cr.P.C except as provided in

Sections 50(5) and 51 of the NDPS Act. There are differences

between the procedure of inquiry/investigation under Chapter V of

the NDPS Act and the procedure of investigation and/or enquiry under

the Cr.P.C.

221

119.Some of the notable differences in the procedure of

inquiry/investigation under Chapter V of the NDPS Act with the

procedure of inquiry/investigation under the Cr.P.C are as follows:

(i)Under Section 68 of the NDPS Act, the name of the

informant is not to be disclosed. The officer who takes down

the information becomes the complainant. However, under

Section 154 of the Cr.P.C information is required to be signed

by the person giving it. (Section 154(1) Cr.P.C)

(ii)The power under Section 41(2) of the NDPS Act, to

authorize arrest or search under the said Section as also the

power of entry, search seizure and arrest under Section 42 and

other similar provisions is conditional upon reason to believe

from personal knowledge or information given by any person

and taken in writing that any person has committed an offence

punishable under this Act, or that any narcotic drug or

psychotropic substance or controlled substance in respect of

which any offence under this Act has been committed, or any

document or other article which may furnish evidence of the

commission of such offence or any illegally acquired property

or any document or other article which may furnish evidence

of holding any illegally acquired property which is liable for

seizure or freezing or forfeiture under Chapter VA of the NDPS

Act, is kept or concealed in any building, conveyance or place.

On the other hand, the powers of the police under Section 165

of the Cr.P.C to make a search or authorize a search are much

wider.

(iii)In the case of an inquiry/investigation under the Cr.P.C it

is not necessary to send a copy of the information as recorded,

with the grounds of belief of the necessity to take action, to a

superior officer.

(iv)The power to conduct personal search under the NDPS

Act is circumscribed by Section 50. If the person to be

222

searched, so requires, he has to be taken to the nearest

Magistrate. As observed above, Section 50(5) specifically

requires searches of person to be made under Section 100 of

the Cr.P.C. only in the circumstances specified in the said

provisions.

(v)Section 53A of the NDPS Act, which expressly provides

that a statement made and signed by a person before any

officer empowered under Section 53 for the investigation of

offences, during the course of any inquiry or proceedings by

such officer, shall be relevant for the purpose of proving in any

prosecution under the NDPS Act, the truth of the facts which it

contains, in the circumstances stated in the said Section, is

patently contrary to and/or inconsistent with Sections 161/162

of the Cr.P.C. Under Section 162, a statement made to a

police officer, if taken down in writing, is not to be signed by

the person making it, and not used for any purpose in any

inquiry or trial in Court, except to confront him if he appears

as a witness and gives evidence to the contrary. Section 53 A

(2) makes it abundantly clear that the provision of sub-section

(1) of Section 53A, to the extent feasible, applies to all

proceedings under the NDPS Act or the Rules or orders

thereunder, other than proceedings before a Court, as

they apply in relation to a proceeding in Court.

(vi)Section 173(1) read with Section 173(2) of the Cr.P.C

makes it obligatory for a police officer to complete an

investigation and file a report to the Magistrate empowered to

take cognizance. Under the NDPS Act no report is required to

be submitted to the Special Court, or to any Magistrate, after

completion of an inquiry and/or investigation of an offence

under the said Act. Officers under the NDPS Act do not have

the power to submit a report to the Magistrate/Special Court in

terms of Section 173 of Cr.P.C.

120.Section 36A(1)(d) of the NDPS Act provides that “a Special

Court may, upon perusal of police report of the facts constituting an

offence under the NDPS Act or upon complaint made by an officer of

223

the Central Government or a State Government authorised in his

behalf, take cognizance of that offence, without the accused being

committed to it for trial”. Section 36A (1)(d) is similar to Section 190

of the Cr.P.C.

121.A complaint, as defined in Section 2(d) of the Cr.P.C., means

any allegation made to a Magistrate orally or in writing, to enable the

Magistrate to take action under the Cr.P.C. A complaint need not be

on a Police Report. However, as per the Explanation to Section 2(d),

a report of a police officer, which discloses a cognizable offence is to

be deemed to be a complaint and the police officer who made the

complaint, shall be deemed to be the complainant.

122.An inquiry and/or investigation is conducted under the NDPS

Act to enable the concerned officer/officers to satisfy themselves,

whether the information gathered or the materials obtained in course

of such inquiry/investigation warrant the filing of a complaint.

123.If upon inquiry/investigation, the authorities concerned find

that there are materials in the form of any statements, documents, or

other things which show prima facie that an offence has been

committed under the NDPS Act, a complaint may be made. If the

information gathered and/or materials obtained do not make out an

offence a complaint may not be made. Similarly a complaint may not

be made, if upon inquiry/investigation, the information of an offence

224

received by the appropriate officer is found false or frivolous.

124.Section 36A(1)(d) enables the police to file a report, before the

Special Court, of facts constituting an offence under the NDPS Act,

which, as per the definition of police report in Section 2(d) of the

Cr.P.C., means a report forwarded under Section 173(2) of the Cr.P.C.

Such a police report is deemed to be a complaint. Such police report

can be filed after an investigation under Chapter XII of the Cr.P.C.

There is no provision in the NDPS Act, which makes it incumbent upon

the concerned officers who make any inquiry/investigation under the

NDPS Act, to prepare or file any report.

125.If the police investigate any offence under the NDPS Act and

submit a report before the Special Court, all the relevant provisions of

the Cr.P.C. would have to be complied with, including in particular

Sections 161, 162, 163, 164 and 173. A statement before the police

can neither be signed nor relied upon for any purpose in a Court of

law, except for the purpose specified in the said section, that is, inter

alia to confront the person making the statement in cross

examination in the trial.

126.The Legislature has in its wisdom differentiated between a

police report, which is deemed to be a complaint, and a complaint

made by an officer of the Central or State Government, authorized in

225

this behalf. It is not for this Court to question the wisdom of the

Legislature. The fact that the Special Court may take cognizance of

an offence, upon a complaint made by an officer of the Central or

State Government, authorized in this behalf, and not a report, as

required in case of the police, also shows that an inquiry or

investigation under the NDPS Act is not to be treated in the same

way, as a police investigation into an offence.

127.The argument advanced by the appellants represented by Mr.

Nagamuthu, that officers invested under Section 53 of the NDPS Act

with the powers of an officer in charge of a Police Station for

investigation of an offence under the NDPS Act would necessarily

have to file a police report under Section 173 of the Cr.P.C. before a

Magistrate, in respect of an offence punishable with imprisonment of

less than three years, which is not triable by the Special Court, but by

a Magistrate, since Section 36A(1)(d) would not apply, is flawed. In

case of an offence punishable with imprisonment of less than three

years, triable by a Magistrate, the authorized officer under the NDPS

Act would have to file a complaint under Section 190(1)(a) of the

Cr.P.C.

128.The expression “police” is ordinarily understood to mean that

226

executive civil force of the State, entrusted with the duty of

maintenance of public order, and also the prevention and detection

of crime.

129.The expression “police” or “police officer” is not defined either

in the Evidence Act 1872 or in the Cr.P.C. Police officers are governed

inter alia by the Police Act 1861, enacted to make the police an

effective instrument for the prevention and detection of crime.

130.Some of the relevant provisions of the Police Act 1861 are set

out hereinbelow:

5. Powers of Inspector-General—Exercise of powers.—The

Inspector General of Police shall have the full powers of a Magistrate

throughout the general police district; but shall exercise those powers

subject to such limitation as may from time to time be imposed by the

[State Government].

xxx xxx xxx

8. Certificates to police-officers.—Every police-officer appointed to

the police force other than an officer mentioned in section 4 shall

receive on his appointment a certificate in the form annexed to this Act

under the seal of the Inspector-General or such other officer as the

Inspector-General shall appoint by virtue of which the person holding

such certificate shall be vested with the powers, functions and

privileges of a police officer.

xxx xxx xxx

20. Authority to be exercised by police officers.—Police-officers,

enrolled under this Act shall not exercise any authority, except the

authority provided for a police officer under this Act and any Act which

shall hereafter be passed for regulating criminal procedure.

xxx xxx xxx

23. Duties of police officers.- It shall be the duty of every

police-officer promptly to obey and execute all filers and warrants

lawfully issued to him by any competent authority; to collect and

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communicate intelligence affecting the public peace; to prevent the

commission of offences and public nuisances, to detect and bring

offenders to justice and to apprehend all persons whom he is legally

authorised to apprehend and for whose apprehension sufficient ground

exists; and it shall be lawful for every police officer, for any of the

purposes mentioned in this section, without a warrant, to enter and

inspect any drinking-shop gaming-house or other place of resort of

loose and disorderly characters.

xxx xxx xxx

24. Police-officers may lay Information, etc.—It shall be lawful for

any police officer to lay any information before a Magistrate, and to

apply for a summons, warrant, search warrant or such other legal

process as may by law issue against any person committing an

offence.”

131.The Police Act, 1888, an Act to amend the law relating to the

regulation of Police, inter alia, provide:-

“3. Employment of police-officers beyond the State to which

they belong.- Notwithstanding anything in any of the Acts mentioned

or referred to in the last foregoing section, but subject to any orders

which the [Central Government] may make in this behalf, a member of

the [police force] of any [State] may discharge the functions of a police-

officer in any part of [any other State] and shall, while so discharging

such functions be deemed to be a member of the [police-force] of that

part and be vested with the powers, functions and privileges and be

subject to be liabilities, of a police officer belonging to [that police-

force].

4. Consent of State Government to exercise powers and

jurisdiction.— Nothing in this Act shall be deemed to enable the police

of one State to exercise powers and jurisdiction in any area within

another State, not being a railway area, without the consent of the

Government of that other State.”

132.The Police Act 1949, enacted for the constitution of a general

police-district embracing two or more Union Territories, and for the

establishment of a police force therefor, extends the application of

the Police Act, 1861 to police officers in Union Territories.

228

133.There are several other statutes such as the Delhi Special

Police Establishment Act 1947, enacted to investigate into offences

and/or class of offences notified under the said Act, the Central

Reserve Police Act, 1949, the Bombay Police Act 1951, the Calcutta

Police Act 1866, the Bengal Police Act, 1869, the Madras City Police

Act 1888, the Assam Rifles Act, the Nagaland Armed Police Act, 1966,

to name a few.

134.The powers of an Officer in Charge of a Police Station are

not exhaustively specified in the Cr.P.C. in any specific chapter or

any set of provisions grouped together. The duties and powers of

an Officer in Charge of a Police Station are implicit in interspersed

provisions of the Cr.P.C., many of which relate to the duties and

powers of all police officers in general. It is however, axiomatic,

that the Officer in Charge of a Police Station is, as a police officer,

entitled to exercise all the powers of a police officer, whether under

any of the Police Acts, the Cr.P.C or any other law, apart from the

additional powers for discharge of duties and responsibilities as

Officer in Charge of a Police Station.

135.Under Section 37 of the Cr.P.C. every person is bound to assist

a police officer reasonably demanding his aid (i) in taking or

preventing the escape of any other person, the police is authorized to

229

arrest (ii) to prevent the breach of peace or (iii) in the prevention of

any injury attempted to be committed to any railway, public property

etc.

136.Section 41 of the Cr.P.C. confers on police officers, wide

powers of arrest without an order of a Magistrate or warrant. The

power extends to the arrest of any person, if amongst other reasons,

the police officer has reason to believe on the basis of any complaint,

information, or suspicion that such person has committed a

cognizable offence punishable with imprisonment which may be less

than or may extend upto seven years. Such powers can be exercised:

(i) if the police officer is satisfied that such arrest is necessary--

(a) to prevent such person from committing any further

offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the

offence to disappear or tampering with such evidence in

any manner; or

(d) to prevent such person from making any inducement,

threat or promise to any person acquainted with the facts

of the case so as to dissuade him from disclosing such

facts to the Court or to the police officer; or

(e) unless such person is arrested, his presence in the Court

whenever required cannot be ensured,

(ii) against whom credible information has been received that he has

committed a cognizable offence punishable with imprisonment for a

term which may extend to more than seven years whether with or

without fine or with death sentence and the police officer has reason to

believe on the basis of that information that such person has

committed the said offence;

(iii) in whose possession anything is found which may reasonably be

suspected to be stolen property and who may reasonably be suspected

230

of having committed an offence with reference to such thing; or

(iv) who obstructs a police officer while in the execution of his duty, or

who has escaped, or attempts to escape, from lawful custody.

137.The Police officers have further powers and duties as specified

in Sections 47, 48, 51, 52, 91, 129 and 133 of the Cr.P.C., which

include the power of search of any place entered by a person sought

to be arrested (Section 47), the power to compel production of

documents or other things (Section 91), dispersal of any assembly

likely to cause disturbance of public peace including arrest and

action for punishment of those who form part of it (Section 129).

Under Section 133 of the Cr.P.C. an order of a Magistrate for removal

of obstruction or nuisance could be based on a police report. This

could even include an order to stop any construction, to remove

construction, to desist from carrying on any trade or business etc.

138.Chapter XI of the Cr.P.C. empowers the police to take action to

prevent the commission of a cognizable offence. Section 151 of the

Cr.P.C. confers on police officers the power of arrest without warrant

or orders of a Magistrate, to prevent the commission of a cognizable

offence. These powers are capable of being misused.

139.The police officers have enormous powers. The powers of a

police officer are far greater than those of an officer under the NDPS

Act invested with the powers of an Officer in Charge of a Police

231

Station for the limited purpose of investigation of an offence under

the NDPS Act. The extensive powers of the police, of investigation of

all kinds of offences, powers to maintain law and order, remove

obstruction and even arrest without warrant on mere suspicion, give

room to police officers to harass a person accused or even suspected

of committing an offence in a myriad of ways. The police are,

therefore, in a dominating position to be able to elicit statements by

intimidation, by coercion, or by threats either direct or veiled. The

powers of NDPS officers being restricted to prevention and detection

of crimes under the NDPS Act and no other crime, they do not have

the kind of scope that the police have, to exert pressure to extract

tailored statements.

140.To summarize, the provisions of the Cr.P.C do not apply to any

inquiry or investigation or other proceeding under the NDPS Act,

except to the extent expressly provided by the NDPS Act, in view of

Section 4(2) read with Section 5 of the Cr.P.C.

141.Officers under the NDPS Act have the power to call for

information, to require production of documents and other things, to

examine persons and record their statements by virtue of the powers

conferred by Sections 53 and 67 read with Section 53A of the NDPS

Act.

232

142.As Officers empowered under Section 53 have all the powers

of an Officer in Charge of a Police Station to conduct investigation of

an offence under the NDPS Act, which includes the powers of calling

for information, examining persons or requiring production of

documents and other things, such powers have expressly been

conferred by Section 67 to authorised officers referred to in Section

42, who may or may not be invested with powers under Section 53.

143.Officers under the NDPS Act, invested under Section 53 with

the powers of an Officer in Charge of a Police Station, for the purpose

of investigation of an offence under the NDPS Act, do not exercise all

the powers of police officers. They do not have the power to file a

police report under Section 173 Cr.P.C which might be deemed a

complaint. There is no provision in the NDPS Act which requires any

officer investigating an offence under the said Act or otherwise

making an inquiry under the said Act to file a report.

144.Officers under the NDPS Act not being police officers, Sections

161/162 of the Cr.P.C have no application to any statement made

before any officer under the NDPS Act, in the course of any inquiry or

other proceedings under the NDPS Act.

233

145.In any case, Section 53A is clearly contrary to and thus

overrides Section 162 of the Cr.P.C. While Section 162(1) of the Cr.P.C.

provides that no statement made by any person to a police officer,

when reduced to writing shall be signed by the person making it, or

used for any purpose, save as provided in the proviso to the said

section, that is, to confront the person making the statement, if he

gives evidence as a witness, Section 53A(1) provides that “a

statement made and signed by a person before any officer

empowered under Section 53 for the investigation of offences, during

the course of any inquiry or proceedings by such officer, shall be

relevant for the purpose of proving, in any prosecution for an offence

under this Act” in certain circumstances specified in the said section.

146.The statements made in any inquiry or investigation may be

recorded in writing and even signed by the person making it. In the

absence of any provision similar to Section 162, in the NDPS Act, a

statement made before an officer under the NDPS Act in the course of

any inquiry, investigation or other proceedings, may be tendered in

evidence and proved in a trial for prosecution of an offence under the

NDPS Act in accordance with law. A statement confessional in nature

is in the genre of extra judicial confessions.

147.Section 24 of the Indian Evidence Act, 1872 provides as

follows:-

234

“24. Confession caused by inducement, threat or

promise, when irrelevant in criminal proceeding.–– A

confession made by an accused person is irrelevant in a

criminal proceeding, if the making of the confession

appears to the Court to have been caused by any

inducement, threat or promise having reference to the

charge against the accused person, proceeding from a

person in authority and sufficient, in the opinion of the

Court, to give the accused person grounds which would

appear to him reasonable for supposing that by making it

he would gain any advantage or avoid any evil of a

temporal nature in reference to the proceedings against

him.”

148.A confession made by an accused person is irrelevant in a

criminal proceeding, if it appears to the Court that the confessions

may have been elicited by any inducement, threat or promise from a

person in authority and sufficient, in the opinion of the Court, to give

the accused person reasonable grounds, for supposing that by

making the confession, he would gain any advantage or avoid any

disadvantage in respect of proceedings against him.

149.As observed by this Court in the State of Rajasthan v. Raja

Ram

13

”confessions may be divided into two classes i.e. judicial

and extra-judicial. Judicial confessions are those which are made

before a Magistrate or a Court in the course of judicial proceedings.

13 (2003) 8 SCC 180

235

Extra-judicial confessions are those which are made by the party

elsewhere than before a Magistrate or Court. Extra-judicial

confessions are generally those that are made by a party to or

before a private individual which includes even a judicial officer in

his private capacity. It also includes a Magistrate who is not

especially empowered to record confessions under Section 164 of

the Code or a Magistrate so empowered but receiving the confession

at a stage when Section 164 does not apply. As to extra-judicial

confessions, two questions arise: (i) were they made voluntarily and

(ii) are they true?”.

xxx xxx xxx

“An extra-judicial confession, if voluntary and true and made

in a fit state of mind, can be relied upon by the Court. The

confession will have to be proved like any other fact. The value of

the evidence as to confession, like any other evidence, depends

upon the veracity of the witness to whom it has been made. The

value of the evidence as to the confession depends on the reliability

of the witness who gives the evidence. It is not open to any court to

start with a presumption that extra-judicial confession is a weak

type of evidence. It would depend on the nature of the

circumstances, the time when the confession was made and the

credibility of the witnesses who speak to such a confession.”

236

xxx xxx xxx

“If the evidence relating to extra-judicial confession is found

credible after being tested on the touchstone of credibility and

acceptability, it can solely form the basis of conviction. The

requirement of corroboration as rightly submitted by the learned

counsel for the respondent-accused, is a matter of prudence and not

an invariable rule of law.”

150.In Gura Singh v. State of Rajasthan

14

this Court held:-

“6. It is settled position of law that extrajudicial confession, if

true and voluntary, it can be relied upon by the court to convict

the accused for the commission of the crime alleged. Despite

inherent weakness of extrajudicial confession as an item of

evidence, it cannot be ignored when shown that such confession

was made before a person who has no reason to state falsely

and to whom it is made in the circumstances which tend to

support the statement. Relying upon an earlier judgment in Rao

Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR 1954 SC

322 : 1954 SCR 1098 : 1954 Cri LJ 910] this Court again in

Maghar Singh v. State of Punjab [(1975) 4 SCC 234 : 1975 SCC

(Cri) 479 : AIR 1975 SC 1320] held that the evidence in the form

of extrajudicial confession made by the accused to witnesses

cannot be always termed to be a tainted evidence. Corroboration

of such evidence is required only by way of abundant caution. If

the court believes the witness before whom the confession is

made and is satisfied that the confession was true and

voluntarily made, then the conviction can be founded on such

evidence alone. In Narayan Singh v. State of M.P. [(1985) 4 SCC

26 : 1985 SCC (Cri) 460 : AIR 1985 SC 1678] this Court cautioned

that it is not open to the court trying the criminal case to start

with a presumption that extrajudicial confession is always a

weak type of evidence. It would depend on the nature of the

14 (2001) 2 SCC 205

237

circumstances, the time when the confession is made and the

credibility of the witnesses who speak for such a confession. The

retraction of extrajudicial confession which is a usual

phenomenon in criminal cases would by itself not weaken the

case of the prosecution based upon such a confession. In Kishore

Chand v. State of H.P. [(1991) 1 SCC 286 : 1991 SCC (Cri) 172 :

AIR 1990 SC 2140] this Court held that an unambiguous

extrajudicial confession possesses high probative value force as

it emanates from the person who committed the crime and is

admissible in evidence provided it is free from suspicion and

suggestion of any falsity. However, before relying on the alleged

confession, the court has to be satisfied that it is voluntary and

is not the result of inducement, threat or promise envisaged

under Section 24 of the Evidence Act or was brought about in

suspicious circumstances to circumvent Sections 25 and 26. The

court is required to look into the surrounding circumstances to

find out as to whether such confession is not inspired by any

improper or collateral consideration or circumvention of law

suggesting that it may not be true. All relevant circumstances

such as the person to whom the confession is made, the time

and place of making it, the circumstances in which it was made

have to be scrutinised. To the same effect is the judgment in

Baldev Raj v. State of Haryana [1991 Supp (1) SCC 14 : 1991

SCC (Cri) 659 : AIR 1991 SC 37] . After referring to the judgment

in Piara Singh v. State of Punjab [(1977) 4 SCC 452 : 1977 SCC

(Cri) 614 : AIR 1977 SC 2274] this Court in Madan Gopal Kakkad

v. Naval Dubey [(1992) 3 SCC 204 : 1992 SCC (Cri) 598 : JT

(1992) 3 SC 270] held that the extrajudicial confession which is

not obtained by coercion, promise of favour or false hope and is

plenary in character and voluntary in nature can be made the

basis for conviction even without corroboration.”

151.It is one thing to say that a piece of evidence is inadmissible

and another thing to assess two or more pieces of evidence on their

probative value. A confession before a Judicial Magistrate under

Section 164 of the Cr.PC may have higher probative value than other

confessions. However, on that parameter alone other confessions for

238

example, extra judicial confession cannot be rendered inadmissible in

law.

152.It is true that some statutes such as Terrorist and Disruptive

Activities (Prevention) Act, 1987 (TADA), Prevention of Terrorism Act,

2002 (POTA) and Maharashtra Control of Organised Crime Act, 1999

(MCOCA) expressly empower the authorized officers to record

confession. Investigation under those statutes is however carried

out by police officer, as pointed out by the learned Addl. Solicitor

General Mr. Aman Lekhi.

153.Whether the officer concerned is duly empowered

and/or authorised to make an enquiry/investigation, whether

any statement or document has improperly been procured,

etc. are factors which would have to be examined by the

Court on a case to case basis. Needless to mention that ,

having regard to all relevant facts and circumstances, the

Court may not base conviction solely on a statement made in

an inquiry which is confessional, in the absence of other

materials with which the statement can be linked. It is for

the Special Court to weigh the statement and assess its

evidentiary value, having regard to all relevant factors. All

statements and documents tendered in evidence have to be

proved at the trial in accordance with law.

239

154.Section 25 of the Evidence Act reads “No confession made to

a police officer shall be proved against a person accused of any

offence”, and Section 26 reads “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, shall be proved as against such

person”. Thus, a confession made by any person to a police officer,

or while in police custody, unless made in the immediate presence of

a Magistrate cannot be tendered in evidence, against a person

accused of an offence.

155.For a long time, there had been differences of opinion in

judicial verdicts, in construing the expression ‘police officer‘ in

Section 25 of the Evidence Act. While the expression ‘police officer’

has in some judgments been construed to include officers, whether or

not police officers, but vested with the powers of a police officer, in

respect of offences under specific enactments, other judgments have

construed the expression to mean a police officer as ordinarily

understood, and not officers of other departments, with authority to

exercise the powers of a police officer for investigation of offences

under special enactments.

156.In Amin Sharif v. Emperor

15

, a full Bench of Calcutta High

Court held that an officer other than a police officer, who in the

15 AIR 1934 Cal 580

240

conduct of investigation of an offence exercise the powers conferred

by the Cr.P.C., upon an Officer in Charge of a police station for

investigation of a cognizable offence, is a police officer within the

meaning of Section 25 of the Evidence Act. Similar view was taken

by the Full Bench of Bombay High Court in Nanoo Sheikh Ahmed

and Another v. Emperor

16

157.On the other hand in Radha Kishun Marwari v. King-

Emperor

17

a Special Bench of Patna High Court took a contrary view

and held that Section 25 of the Evidence Act applies to a police

officer alone and not any other person invested with powers of a

police officer for a limited purpose. Confession to an Excise Inspector

with power to search and investigate was held to be inadmissible in

evidence.

158.In the State of Punjab v. Barkat Ram

18

, the majority of the

judges on the Bench held (Subba Rao, J., dissenting) that a Customs

Officer under the Land Customs Act 19 of 1924 or under the Sea

Customs Act 8 of 1878 is not a police-officer for the purpose of

Section 25 of the Indian Evidence Act, 1872, and that conviction of

the offender on the basis of his statements to the Customs Officer for

offences under Section 167(8) of Sea Customs Act, 1878, and Section

16 AIR 1927 Bom 4

17 AIR 1932 Patna 293

18. AIR 1962 SC 276

241

23(1) of the Foreign Exchange Regulation Act, 1947, is not illegal.

Raghubar Dayal, J., who delivered the majority judgment of this Court

observed:

“... that the powers which the police officers enjoy are powers for the

effective prevention and detection of crime in order to maintain law

and order.

The powers of customs officers are really not for such purpose.

Their powers are for the purpose of checking the smuggling of goods

and the due realisation of customs duties and to determine the

action to be taken in the interests of the revenues of the country by

way of confiscation of goods on which no duty had been paid and by

imposing penalties and fines”.

159. In Barkat Ram (supra), Dayal, J. speaking for the majority

observed.

18. We now refer to certain aspects which lead us to

consider that the expression “police officer” has not such

a wide meaning as to include persons on whom certain

police powers are conferred. The object of enacting

Section 25 of the Evidence Act, whose provisions formerly

formed part of the Code of Criminal Procedure, was to

exclude from evidence confessions made to the regular

police which had a very bad reputation for the methods it

employed in investigation, especially in forcibly extracting

confessions with the object of securing a conviction. The

past conduct of the members of the police organization

justified the provision. It is too much to suppose that the

legislature did intend that all persons, who may have to

investigate or arrest persons or seize articles in pursuance

of any particular law of which at the time it had no

conception, should be considered to be so unreliable that

any confession made to them must be excluded just as a

confession made to a regular police officer. If it could not

contemplate the later creation of offences or of agencies

to take action in respect to them under future legislation,

it could not have intended the expression “police officer”

to include officers entrusted in future with the duty of

detecting and preventing smuggling and similar offences

with the object of safeguarding the levying and recovery of

Customs duties. If the legislature had intended to use the

expression “police officer” for such a wide purpose, it

would have used a more comprehensive expression. It

could have expressed its intention more clearly by making

242

any confession made to any officer whose duty is to detect

and prevent the commission of offences inadmissible in

evidence.”

160.In Raja Ram Jaiswal v. State of Bihar

19

, the majority

(Raghubar Dayal, J. dissenting) held that the test for determining

whether a person was a “police officer” for the purpose of Section 25

of the Evidence Act would be whether the powers of a police officer

which were conferred on him, or which were exercisable by him

because he was deemed to be an officer in charge of a Police Station,

established a direct or substantial relationship with the prohibition

enacted by Section 25 of the Evidence Act. This Court held that the

object of enacting Section 25 of the Evidence Act was to eliminate

from consideration confession to an officer, who by virtue of his

position could extract by force, torture or inducement, a confession.

If the power of investigation established a direct relationship with

prohibition under Section 25 of the Evidence Act, the mere fact that

the officer might possess some other powers under some other law,

would not make him any less a police officer, for the purpose of

Section 25 of the Evidence Act.

161.In Raja Ram Jaiswal (supra) this Court found it difficult to

draw a rational distinction between a confession recorded by a police

officer strictly so called, and the evidence recorded by an Excise

Officer, acting under Section 78(3) of the Bihar and Orissa Excise Act,

19. AIR 1964 SC 828

243

1915, who was deemed to be a police officer. Section 78(3) provided

that an Excise Officer empowered under Section 77(2) of the Bihar

and Orissa Excise Act, 1915 shall for the purpose of Section 156 of

the Cr.P.C., be deemed to be an officer in charge of a Police Station

with respect to the area to which his appointment as an Excise Officer

extends. This Court, therefore found such an officer to be in the

same position as an officer in charge of a Police Station, making an

investigation under Chapter XIV of the Cr.P.C.

162.This Court held that officers under the Bihar and Orissa Excise

Act, 1915 not only had the duty to prevent commission of offences

under the said Act but were entrusted with the duty of detection of

offences under the said Act, as well and for these purposes they were

empowered in all respects as an officer in charge of a Police Station.

163.Drawing a distinction with officers under the Sea Customs Act,

1878 and/or the Customs Act, 1962, the Court held that though the

Customs Officer can make an inquiry, he has no power to investigate

into offences under Section 156 of the Cr.P.C. Whatever power he

244

exercises are expressly those set out in Chapter XVII which might be

analogous to those of a police officer under the Cr.P.C but not

identical with those of a police officer. Thus , the Customs Officer is

not entitled to submit a report to a Magistrate under Section 190 of

the Cr.P.C. with a view that cognizance of the offence be taken by the

Magistrate. Section 187(a) of the Sea Customs Act specifically

provides that cognizance of an offence under the Sea Customs Act

can be taken only upon a complaint in writing made by the Customs

Officer or other officer of the Customs, not below the rank of an

Assistant Collector of Customs authorised by the Chief Customs

Officer.

164.It is true that in drawing a distinction between an Excise

Officer under the Bihar and Orissa Excise Act and a Custom Officer

under the Sea Customs Act, this Court noticed the following

differences.

(i) The Excise Officer does not exercise any judicial power as the

Customs Officer does under the Sea Customs Act, 1878.

(ii)The Customs Officer is not deemed to be an Officer in charge

of a police station and therefore can exercise no powers under the

245

Cr.P.C. and certainly not those of an Officer in charge of a police

station.

(iii)Though he can make an inquiry he has no power to

investigate into an offence under Section 156 of the Cr.P.C. Whatever

powers he exercises are expressly set out in the Sea Customs Act.

(iv)Though some of those powers set out in Chapter XVII might

be analogous to those of a police officer under the Cr.P.C., they were

not identical to those of a police officer. The Customs Officer is not

entitled to submit a report to a Magistrate under Section 190 of the

Cr.P.C. Section 187(a) of the Sea Customs Act specially provides that

cognizance of an offence under the Sea Customs Act can be taken

upon a complaint in writing made by the Customs Officer or other

officer of the Customs of a specified rank. ..

165.In Badku Joti Savant v. State of Mysore

20

the question of

whether a Central Excise Officer under the Central Excise and Salt Act

1944 was a police officer within the meaning of Section 25 of the

Evidence Act, fell for consideration before a five-Judge Constitution

Bench, in the context of Section 21 of the Central Excise and Salt Act,

1944 (now known as the Central Excise Act, 1944), set out

hereinbelow for convenience:

20. AIR 1966 SC 1746

246

“21. (1) When any person is forwarded under Section 19 to a Central

Excise Officer empowered to send persons so arrested to a Magistrate,

the Central Excise Officer shall proceed to inquire into the charge

against him.

(2) For this purpose the Central Excise Officer may exercise the

same powers and shall be subject to the same provisions as the officer

incharge of a police station may exercise and is subject to under the

Code of Criminal Procedure, 1898, when investigating a cognizable

case:

Provided that….”

166.In Badku Joti Savant (supra) the Constitution Bench

distinguished Raja Ram Jaiswal (supra) held:

“9. ….It is true that sub-section (2) confers on the Central Excise

Officer under the Act the same powers as an officer incharge of a police

station has when investigating a cognizable case;…….A police officer

for purposes of clause (b) above can in our opinion only be a police

officer properly so-called as the scheme of the Code of Criminal

Procedure shows and it seems therefore that a Central Excise Officer

will have to make a complaint under clause (a) above if he wants the

Magistrate to take cognizance of an offence, for example, under

Section 9 of the Act. Thus though under sub-section (2) of Section 21

the Central Excise Officer under the Act has the powers of an officer

incharge of a police station when investigating a cognizable case, that

is for the purpose of his inquiry under sub-section (1) of Section 21.

Section 21 is in terms different from Section 78 (3) of the Bihar and

Orissa Excise Act, 1915 which came to be considered in Raja Ram

Jaiswal case (1964) 2 SCR 752 and which provided in terms that “for

the purposes of Section 156 of the Code of Criminal Procedure, 1898,

the area to which an excise officer empowered under Section 77, sub-

section (2), is appointed shall be deemed to be a police-station, and

such officer shall be deemed to be the officer incharge of such station”.

It cannot therefore be said that the provision in Section 21 is on par

with the provision in Section 78 (3) of the Bihar and Orissa Excise Act.

All that Section 21 provides is that for the purpose of his enquiry, a

Central Excise Officer shall have the powers of an officer incharge of a

police station when investigating a cognizable case. But even so it

appears that these powers do not include the power to submit a

charge-sheet under Section 173 of the Code of Criminal Procedure for

unlike the Bihar and Orissa Excise Act, The Central Excise Officer is not

deemed to be an officer incharge of a police station.

xxxxx xxxxx

11. In any case unlike the provisions of Section 78(3) of the Bihar and

Orissa Excise Act, 1915, Section 21(2) of the Act does not say that the

Central Excise Officer shall be deemed to be an officer-in-charge of a

police station and the area under his charge shall be deemed to be a

police station. All that Section 21 does is to give him certain powers to

aid him in his enquiry. In these circumstances we are of opinion that

247

even though the Central Excise Officer may have when making

enquiries for purposes of the Act powers which an officer incharge of a

police station has when investigating a cognizable offence, he does not

thereby become a police officer even if we give the broader meaning to

those words in Section 25 of the Evidence Act.”

167.In Romesh Chandra Mehta v. State of West Bengal

21

five

judge Constitution Bench of this Court considered the question of

whether a Customs Officer under the Sea Customs Act 1878, was a

police officer within the meaning of Section 25 of the Evidence Act

and whether confessional statements made to the Customs Officer

were inadmissible in evidence. The Constitution Bench held:

“5. ….. The broad ground for declaring confessions made to a police

officer inadmissible is to avoid the danger of admitting false

confessional statements obtained by coercion, torture or ill-treatment.

But a Customs Officer is not a member of the police force. He is

not entrusted with the duty to maintain law and order. He is

entrusted with powers which specifically relate to the

collection of customs duties and prevention of smuggling. There

is no warrant for the contention raised by counsel for Mehta that a

Customs Officer is invested in the enquiry under the Sea Customs Act

with all the powers which a police officer in charge of a police station

has under the Code of Criminal Procedure...”

10. Counsel for Mehta contended that a Customs Officer who has power

to detain, to arrest, to produce the person arrested before a Magistrate,

and to obtain an order for remand and keep him in his custody with a

view to examine the person so arrested and other persons to collect

evidence, has opportunities which a police officer has of extracting

confessions from a suspect, and if the expression police officer be not

narrowly understood, a statement recorded by him of a person who is

accused of an offence is inadmissible by virtue of Section 25 of the

Indian Evidence Act. But 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

investigation of an offence, including the power to submit a

report under Section 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 Section 173 of the Code

of Criminal Procedure.

24. He is, it is true, invested with the powers of an officer in

charge of a police station for the purpose of releasing any

21. AIR 1970 SC 940

248

person on bail or otherwise. The expression “or otherwise”

does not confer upon him the power to lodge a report before a

Magistrate under Section 173 of the Code of Criminal

Procedure. Power to grant bail, power to collect evidence, and

power to search premises or conveyances without recourse to

a Magistrate, do not make him an officer in charge of a police

station.”

168.In Illias v. Collector of Customs, Madras

22

a Constitution

Bench of five judges examined the earlier decisions of this Court,

compared the duties and functions of police officers and Customs

Officers and held that statements of the nature of a confession made

before a Customs Officer would not be inadmissible in evidence on

the ground that Customs Officers were Police Officers within the

meaning of Section 25 of the Evidence Act. The Constitution Bench

held:

“...(1) The police is the instrument for the prevention and detection of

crime which can be said to be the main object of having the police. The

powers of customs officers are really not for such purpose and are

meant for checking the smuggling of goods and due realization of

customs duties and for determining the action to be taken in the

interest of the revenue country by way of confiscation of goods on

which no duty had been paid and by imposing penalties and fines.

(2) The customs staff has merely to make a report in relation to

offences which are to be dealt with by a Magistrate. The customs

officer, therefore, is not primarily concerned with the detection and

punishment of crime but he is merely interested in the detection and

prevention of smuggling of goods and safeguarding the recovery of

customs duties.

(3) The powers of search etc. conferred on the customs officers are

of a limited character and have a limited object of safeguarding the

revenues of the State and the statute itself refers to police officers in

contradiction to customs officers;

(4) If a customs officer takes evidence under Section 171-A and

there is an admission of guilt, it will be too much to say that that

statement is a confession to a police officer as a police officer never

acts judicially and no proceeding before him is deemed to be a judicial

proceeding for the purpose of Sections 193 and 228 of the Indian Penal

Code or for any other purpose.”

22. AIR 1970 SC 1065

249

169.As found in Illias (supra) the main function of the police is

prevention and detection of crime. The Police Officers have powers

wide enough to extract confessions by intimidation or use of force or

veiled threats of implication in some other crime. On the other hand,

the powers of officers under the NDPS Act are not for the prevention

and detection of crimes generally. These officers are only concerned

with detection and prevention of trafficking of and/or illegal

trade/business in narcotic drugs and psychotropic substances. Powers

of search, seizure etc. conferred on officers of the NCB or other

officers under the NDPS Act are of a limited character. The NDPS Act

itself refers to police officers in contra distinction to other officers

under the NDPS Act.

170.In the State of Uttar Pradesh v. Durga Prasad

23

this Court

considered the question of whether an enquiry under Section 8(1) of

the Railway Property(Unlawful Possession) Act 1966, was an

investigation under Section 156 of the Cr. P C, and if so, whether

statements recorded in course of investigation were hit by Section

162 of Cr. P C and if confessional in nature, inadmissible in evidence

under Section 25 of the Evidence Act. This Court held:

“The right and duty of an Investigating Officer to file a police report or

a charge-sheet on the conclusion of investigation 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

23. (1975) 3 SCC 210

250