In a landmark judgment, the Court held that confession to officers under the Act is not admissible as evidence during trial and infringes on the Constitution. This will have ramifications for the Rhea Chakraborty case as well as others.
By Rahul Shyam Bhandari
ON October 29, 2020, the Supreme Court passed a significant judgment in Toofan Singh vs State of Tamil Nadu, under the NDPS Act (Narcotic Drugs and Psychotropic Substances Act, 1985). It ruled that officers authorised to investigate NDPS cases are “police officers” for the purpose of Section 25 of the Evidence Act and hence confessional statements made to them are not admissible in law for the purpose of conviction.
Section 25 of the Evidence Act bars admission of any confession made to a police officer. The 308 page judgment consists of both majority (2) and minority views (1). The Constitution Bench was answering two broad issues referred to it by a division bench. First was whether an officer investigating a matter under the NDPS Act would qualify as a police officer and second, whether a statement recorded by an investigating officer under Section 67 of the Act can be treated as a confessional statement even if the officer is not treated as a police officer.
Answering this, the majority bench of Justices RF Nariman and Navin Sinha gave an intriguing insight into Article 20 (3) and the Right to Privacy. The right against self incrimination in Article 20 (3) means that no person accused of an offence can be compelled to speak against himself. This right has been recognised in various constitutional verdicts, wherein it was held that this protection can extend to any compulsory process for production of evidentiary documents too. This is a principle which is a fundamental canon of the British system of criminal jurisprudence and has been adopted by the American system too.
The right of privacy was also considered by the Bench which has been already recognised as a fundamental right under Article 21 of the Constitution in the KS Puttaswamy case wherein in the words of Justice Nariman, this right includes Right to move freely meaning thereby no restriction to move or reside in any part of India, Informational Privacy and Privacy of choice.
It has been held that the NDPS Act is to be construed in the backdrop of Article 20(3) and Article 21. Then it goes on to discuss confessions under Section 25 of the Evidence Act and various safeguards provided under both the CrPC and NDPS Act. The Bench then noted “that given the stringent provisions of NDPS Act, one has to keep in mind the fact that severer the punishment, the greater the care taken to see that the safeguards provided in the statue are scrupulously followed”.
Relevant provisions of the NDPS which were tested were Sections 53 and 67. Section 53 deals with the powers of the central and state governments to invest any officer from the department of excise, narcotics, revenue intelligence, customs, etc, with powers of an officer in charge of a police station for the investigation of offences under the Act. Section 67 deals with the power to call for information by an authorised officer for the purpose of the inquiry.
The bench remarked: “If a police officer, properly so called to investigate an offence under the NDPS Act, all the safeguards contained in Sections 161 to 164 of CrPc would be available to the accused, but if the same police officer or designated officer under Section 42 were to record confessional statements under Section 67 of NDPS Act, these safeguards would be thrown into the winds’’.
While answering the next crucial question about whether an officer designated under Section 53 of the NDPS Act can be said to be a police officer, the majority view considered all the previous constitutional bench judgments starting from Barkat Ram case, Raja Ram Jaiswal, Romesh Chandra and Badku Joti Savant. Thus, it was held that “where limited powers of investigation are given to officers primarily for some purpose other than prevention and detection of crime, such persons cannot be said to be police officers under Section 25 of the Evidence Act. However, police officer doesn’t have to be a police officer in the narrow sense and broad view has been always accepted namely that a person who is not a police officer properly so called is invested with all the powers of investigation, which culminates in the filing of a police report, such officers can be termed as a police officer with the meaning of Section 25 of Evidence Act as when they prevent and detect crime, they are also in a position to extort confessions achieving their object”.
Following this, the previous decision of the division bench in Raj Kumar Karwal which had concluded that a designated officer under the NDPS Act cannot be said to be a police officer under Section 25 of the Evidence Act was overruled primarily because NDPS Act cannot be taken as merely an Act to regulate drugs, then unlike revenue statutes and the Railway Act, all offences are cognisable and most importantly, Section 53 of the Act unlike other statutes, doesn’t provide any limitation upon the powers of officers to investigate, including the power to file a charge sheet.
Another judgment which has been overruled is Kanhaiyalal where the conviction was based solely on the basis of a confessional statement under Section 67 of the NDPS Act. The majority view goes on to compare other similar acts like POTA and TADA where though confessional statements can be made a basis of conviction, there are several safeguards before the confession is admitted. Thus, it was held that to convict a person under NDPS on the basis of a statement made to officers without any safeguards would be a direct infringement of Articles 14, 20(3) and 21 of the Constitution.
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There is also the minority view where Justice Indira Banerjee said that officers under the NDPS are not police officers for the purpose of Section 25 of the Evidence Act as they don’t enjoy the power of filing a final report. Therefore, confession made under Section 67 cannot be rejected for the purpose of trial. And even if so, the question of a person being a police officer has to be decided by a larger bench of five judges. She further said that a penal act such as NDPS has to be construed liberally keeping in view the objective of the Act and socio-economic crimes.
The contradictions with the majority view were as follows:
- Firstly it was held that police officers have more power than officers under the NDPS Act as the latter don’t exercise all powers of a police officer, including the power to file a report under Section 173 CrPC. The NDPS Act doesn’t even contain a provision for filing a report. Provisions of CrPC are not applicable here.
- The powers of NDPS officers are not for prevention of crime generally. They are concerned with detection and prevention of trafficking of drugs. Hence, the judgments in Raj Kumar Karwal and Kanhaiyalal doesn’t require reconsideration.
- Section 25 of the Evidence Act doesn’t make any difference between cognisable and non-cognisable evidence, so it should not affect admissibility of evidence under the NDPS Act. The judgment further says that substantial compliance should be treated as sufficient for the procedural requirements under the NDPS Act since it’s largely a crime against society.
- The provisions of entry, search and arrest would not violate the right of privacy and rules. Concerning Article 20 (3), it has been stated that immunity under it does not extend to compulsory production of documents or material objects nor does it prevent the accused from voluntarily offering the statement. And a presumption is to be drawn in favour of the legislature.
The majority judgment will have ramifications on prospective and pending cases. For instance, in the Rhea Chakraborty case, the narcotics department is said to be relying on her confessional statements, and this has been used to confront others. But with the effect of the confessional statement being taken away by this decision, a monumental task lies ahead for the narcotics department to bring corroborative evidence in each and every case to charge someone as an accused under the Act.
Not only this, the judgment could affect cases under the Prevention of Money Laundering Act where, at times, confessional statements made to a director or deputy officer appointed by the centre are made the basis to provisionally attach the property of the accused till the culmination of the trial unless that attachment is set aside by appellate forums. Though generally, the attachment of property is mandated only after filing of a report under Section 173 CrPC, in the light of this judgment, it would still be a test to see whether even for a provisional period, the property of the accused can be attached on such basis.
Meanwhile, there is no doubt that this judgment is a progressive one for protection of the rights of an accused.
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—The writer is Advocate on Record, Supreme Court
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