A B C D E F G H 583[2020] 12 S.C.R. 583 583 TOFAN SINGH v. STATE OF TAMIL NADU (Criminal Appeal No. 152 of 2013 Etc.) OCTOBER 29, 2020 [R. F. NARIMAN, NAVIN SINHA AND INDIRA BANERJEE, JJ.] Narcotic Drugs and Psychotropic Substances Act, 1985: ss. 42, 53 and 67 – Power under s. 67 – Extent, nature, purpose and scope of – Confession made under – Before the officers designated u/ss. 42 or 53 – Whether admissible as a substantive evidence – Held: Statement recorded under s. 67 cannot be admitted as a substantive evidence – To hold that such statement can be the basis to convict a person under the Act would be a direct infringement of the constitutional guarantees contained in Arts. 14, 20(3) and 21 of the Constitution.
Evidence Act, 1872: s.25 – Officers invested with powers u/s. 53 of NDPS Act – Are ‘Police Officers’ within the meaning of s. 25 – Therefore, any confessional statement made to such officers, would be barred u/s.
25. s.25 – ‘Police Officers’ – s. 25 – Held: Expression ‘Police Officers’ in s.25 does not only mean a police officer who belongs to State Police force, but includes officers who may belong to other departments – Where limited powers of investigation are given to officers for some purpose other than the prevention and detection of crime, such persons cannot be said to be police officers – Where a person, not a police officer properly so called, if invested with all powers of investigation, which culminates in filing of police report, such person can be called police officer.
Interpretation of statutes: Marginal note – Is an important internal tool for indicating the meaning and purpose of a Section in a statute. A B C D E F G H 584 SUPREME COURT REPORTS [2020] 12 S.C.R. Words and Phrases: ‘Enquiry’ – Meaning of Expression ‘Custody’ – Meaning of – Distinction from the expression ‘arrest’. ‘Police Officer’ – Meaning in the context of s. 25 of Evidence Act. Answering the Reference, the Court PER R.
F. NARIMAN, J (FOR HIMSELF AND NAVIN SINHA, J.) HELD:
1.1. The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is to be construed in the backdrop of Article 20(3) and Article 21 of the Constitution of India. The fundamental rights contained in Articles 20(3) and 21 are given pride of place in the Constitution. By the 44th Amendment to the Constitution, 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 be in conformity and in tune with the spirit of the broad fundamental right not to incriminate oneself, and the right to privacy. 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. [Para 27][662-F-G] 1.2 Section 25 of Evidence Act, 1872 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.
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. [Para 29][664-B-D] A B C D E F G H 585 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) – referred to. 1.3 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. 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. [Paras 31 and 33][665-B-C; 666-D] 1.4 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” – custody could refer to a situation pre-arrest.
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. [Para 34][666-D-F] State of Bombay v. Kathi Kalu Oghad and Ors. [1963] 2 SCR 10; State of U.P. v. Deoman Upadhyaya [1961] 1 SCR 14; K.S. Puttaswamy and Anr. v. Union of India and Ors. (2017) 10 SCC 1: [2017] 10 SCR 569 – followed.
Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424: [1978] 3 SCR 608; Selvi v. State of Karnataka (2010) 7 SCC 263; State of U.P. v. Deoman Upadhyaya [1961] 1 SCR 14; Agnoo Nagesia v. State of Bihar [1966] 1 SCR 134; State of Haryana and Ors. v. Dinesh Kumar (2008) 3 SCC 222: [2008] 1 SCR 281 – relied on. M.P. Sharma and Ors. v. Satish Chandra [1954] SCR 1077 – stood overruled. TOFAN SINGH v. STATE OF TAMIL NADU A B C D E F G H 586 SUPREME COURT REPORTS [2020] 12 S.C.R. 2.1 The interplay between the CrPC and the provisions of the NDPS Act is contained in several provisions.
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.
On the other hand, CrPC has been made expressly applicable by sections 34(2), 36B, 50(5) and 51 of NDPS Act. Equally, CrPC has been applied with necessary modifications under sections 36A(1)(b), 37(1)(b) and 53A of NDPS Act. Read with sections 4(2) and 5 of CrPC, the scheme of the NDPS Act seems to be that CrPC is generally followed, except where expressly excluded, or applied with modifications. [Paras 37 and 38][668-A-C; D-F] 2.2 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. 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. [Paras 45 and 46][674-B; 675-E-H] A.S.
Krishnan v. State of Kerala (2004) 11 SCC 576 : [2004] 3 SCR 44 – relied on. A B C D E F G H 587 2.3 Section 50 of the NDPS Act contains extremely important conditions under which a search of persons shall be conducted. Section 52(1)-(3) contains three separate safeguards, insofar as disposal of persons arrested and articles seized are concerned. 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 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. [Paras 47, 52, 53 and 54][676-D-E; 685-G- H; 686-A-B, F-G] State of Punjab v.
Baldev Singh (1999) 6 SCC 172 : [1999] 3 Suppl. SCR 174 – followed. Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609 : [2010] 13 SCR 255 – referred to. 2.4 The NDPS Act is predominantly a penal statute. Given the stringent provisions of the NDPS Act, together with the safeguards mentioned in the provisions, the statutes like the NDPS Act have to be construed bearing in 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. [Para 55][686-H; 687-A] State of Punjab v.
Baldev Singh (1999) 6 SCC 172: [1999] 3 Suppl. SCR 174 – followed. TOFAN SINGH v. STATE OF TAMIL NADU A B C D E F G H 588 SUPREME COURT REPORTS [2020] 12 S.C.R. Directorate of Revenue and Anr. v. Mohammed Nisar Holia (2008) 2 SCC 370; Union of India v. Bal Mukund (2009) 12 SCC 161: [2009] 5 SCR 205 – relied on. 3.1 The marginal note to section 67 NDPS Act indicates that it refers only to the power to “call for information, etc.” 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. [Para 59]]689-F] K.P.
Varghese v. Income Tax Officer, Ernakulam and Anr. (1981) 4 SCC 173 : [1982] 1 SCR 629 – relied on. 3.2 It is only an officer referred to in section 42 of NDPS Act 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 offences.
The notifications issued under the Act soon after the Act came into force, 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). [Para 60][690-B-D] Desh Bandhu Gupta & Co. v.
Delhi Stock Exchange Assn. Ltd. (1979) 4 SCC 565: [1979] 3 SCR 373 – referred to. 3.3 The officer referred to in section 42 is given powers of entry, search, seizure and arrest without warrant, with the safeguards. The first safeguard is that such officer must have “reason to believe”, which 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 B C D E F G H 589 (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.
Therefore, it cannot be said that “enquiry” in section 67 is the same as “investigation”, which is referred to in section 53. [Para 61][691-C-F] 3.4 By virtue of section 2(xxix) of the NDPS Act, the definition u/s. 2(h) becomes applicable to the use of the expression “investigation” in section 53 of the NDPS Act. 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. This becomes even clearer from section 52(3), whereunder 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. [Paras 63 and 64][692-C-G] 3.5 In 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. [Para 65][692-G- H] TOFAN SINGH v. STATE OF TAMIL NADU A B C D E F G H 590 SUPREME COURT REPORTS [2020] 12 S.C.R. Sahoo v.
State of U.P. [1965] 3 SCR 86 – held not applicable. 3.6 Equating confession u/s. 67 as statement u/s. 161 Cr. P.C. 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. First and foremost, 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. [Para 66][693- B-E] Tahsildar Singh v. State of U.P. [1959] Supp (2) SCR 875 – followed. 3.7 If a confessional statement made under section 67 is considered 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, A B C D E F G H 591 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 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 a confessional statement made under section 67 – not being bound by any of these constraints – would be sufficient to convict the accused. [Para 72][697-D-H; 698-A-B] H.N.
Rishbud and Inder Singh v. State of Delhi [1955] 1 SCR 1150 – relied on. Mukesh Singh v. State (Narcotic Branch of Delhi) 2020 SCC OnLine SC 700 – distinguished. Mohan Lal v. State of Punjab (2018) 17 SCC 627: [2018] 9 SCR 1006; State v. V. Jayapaul (2004) 5 SCC 223 – referred to. 3.8 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. The Notifications S.O. 822 (E) and S.O. 823 (E) dated 14.11.1985 issued by Ministry of Finance (Department of Revenue) indicate that officers of and above the rank of Inspector in the Departments of Central Excise, Customs, TOFAN SINGH v. STATE OF TAMIL NADU A B C D E F G H 592 SUPREME COURT REPORTS [2020] 12 S.C.R.
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 Notifications S.O. 3901 (E) and S.O. 3899 (E) issued by the Ministry of Finance (Department of Revenue) on 30.10.2019. 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. [Paras 78, 80 and 81][702-C-E, G; 703-B-C; 704-C] State of Madhya Pradesh v.
Mubarak Ali [1959] Supp. 2 SCR 201 – relied on. 4.1 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 cannot be said to be police officers under section 25 of the Evidence Act. 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.
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. [Para 126][732-E-H] 4.2 There is distinction 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 control over narcotic drugs and A B C D E F G H 593 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 were in aid of the dominant object of the statutes in question, 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. [Para 132][736-G-H; 737-A-D; F-G] 4.3 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. [Para 133][737-H; 738-A] TOFAN SINGH v.
STATE OF TAMIL NADU A B C D E F G H 594 SUPREME COURT REPORTS [2020] 12 S.C.R. 4.4 It is clear 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).
The non obstante clause contained in section 36A(1) makes it clear that the drill of section 36A of NDPS Act 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) of NDPS Act to a Special Court, and not to a Magistrate under section 190 CrPC [Para 137][741-B-E] 4.5.
It cannot be said that the procedure under section 190 Cr. P.C. has been replaced only in part, the police report and complaint procedure under section 190 not being displaced by section 36A(1)(d). 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 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 A B C D E F G H 595 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. [Para 137][741-E-H; 742-A-B] 4.6. 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 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. [Para 138][742- C-F] 4.7 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 TOFAN SINGH v. STATE OF TAMIL NADU A B C D E F G H 596 SUPREME COURT REPORTS [2020] 12 S.C.R. under section 59(1), or by the Special Court for an offence under section 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. [Para 143][744-E-H] 4.8 It cannot be said 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). 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. [Para 144][745-B-D] 4.9 It cannot be said that the power contained in section 53(1) is only a truncated power to investigate which does not culminate in a police report being filed because Section 53 does not use the expression “deemed”.
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). [Para 145][745-D-G] A B C D E F G H 597 4.10 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 who are otherwise invested with all powers of investigation so as to attract the provisions of section 25 of the Evidence Act, it is not correct to say 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.
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. [Para 146][745-G-H; 746- A-C] 4.11 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. This is distinct from the evidentiary 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. Also, when confessional statements are used under the TADA and POTA, they are used with several safeguards which are contained in these sections themselves. Additional safeguards/guidelines were issued by the Court in *kartar Singh case in respect of TADA TOFAN SINGH v.
STATE OF TAMIL NADU A B C D E F G H 598 SUPREME COURT REPORTS [2020] 12 S.C.R. cases 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”. Insofar as POTA is concerned, procedural safeguards while recording confessions have been discussed in ** Navjot Sandhu case.
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. [Paras 149 and 150 - 152][749-A-E; 750F- G; 753-G-H; 754-A] *Kartar Singh v.
State of Punjab (1994) 3 SCC 569: [1994] 2 SCR 375; Noor Aga v. State of Punjab (2008) 16 SCC 417: [2008] 10 SCR 379; Nirmal Singh Pehlwan v. Inspector, Customs (2011) 12 SCC 298: [2011] 9 SCR 446 – relied on. **State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600: [2005] 2 Suppl. SCR 79 – referred to.
5. Thus, 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.
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. [Para 155][754-C-F] Raj Kumar Karwal v. Union of India (1990) 2 SCC 409: [1990] 2 SCR 63; Kanhaiyalal v. Union of India (2008) 4 SCC 668: [2008] 1 SCR 350 – overruled. 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; A B C D E F G H 599 Romesh Chandra Mehta v. State of West Bengal [1969] 2 SCR 461; Illias v. Collector of Customs, Madras [1969] 2 SCR 613; State of U.P. v. Durga Prasad (1975) 3 SCC 210: [1975] 1 SCR 881; Balkishan A. Devidayal v. State of Maharashtra (1980) 4 SCC 600: [1981] 1 SCR 175; State of Gujarat v. Anirudhsing and Anr. (1997) 6 SCC 514: [1997] 2 Suppl. SCR 234; Vinubhai Haribhai Malviya and Ors. v.
State of Gujarat and Anr. 2019 SCC OnLine SC 1346; John Thomas v. Dr. K. Jagadeesan (2001) 6 SCC 30: [2001] 3 SCR 934 ; Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31: [2013] 9 SCR 962; Abdul Rashid v. State of Bihar (2001) 9 SCC 578; D.K. Basu v. Union of India (1997) 1 SCC 416: [1996] 10 Suppl. SCR 284 – referred to. PER INDIRA BANERJEE, J. (DISSENTING) 1.1 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. [Para 43][766-B] 1.2 However, despite an elaborate statutory framework, the NDPS Act is not being effectively implemented.
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. [Paras 47 and 48][768-A-D] 1.3 Socio-economic crimes i.e. “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, TOFAN SINGH v.
STATE OF TAMIL NADU A B C D E F G H 600 SUPREME COURT REPORTS [2020] 12 S.C.R. 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. Such crimes have to be dealt with firmly and cannot be equated with other crimes, committed by individual offenders against individual victims. [Para 50][769-G-H; 770-A] Article “Narcotic Aggression and Operation Counter Attack” by the Mainstream dated March 7, 1992; The Law Commission of India, in its 155th Report on Narcotic Drugs and Psychotropic Substances Act, 1985 – referred to. 2.1 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 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 possession of any narcotic drug or psychotropic substance, or any apparatus for manufacture or preparation thereof.
The presumption is rebuttable. [Para 52][770-C-E] 2.2. The punishments prescribed for many of the offences under the NDPS Act are very severe. 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. [Para 53][770-F; 771-B] 2.3 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.
Section 58 provides for punishment of any person, authorized under Section 42 or 43 or 44 for vexatious entry, search, seizure, or arrest. [Para 54][771-C-D] A B C D E F G H 601 2.4 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. [Para 59][773-D-E] A. S. Krishnan and Ors. v. State of Kerala (2004) 11 SCC 576: [2004] 3 SCR 44; Income Tax Officer, I Ward, District VI, Calcutta and Ors. v. Lakhmani Mewal Das (1976) 3 SCC 757: [1976] 3 SCR 956 – relied on. 2.5 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. [Para 68][775-G-H] 2.6 Section 5 specifically provides that nothing in