Officers under Section 53 of NDPS Act are police; statement under Section 67 is confessional statement: Supreme Court in 2:1 judgment

The Supreme Court has held by a 2:1 majority that officers under Section 53 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 are police officers (Tofan Singh v. State of Tamil Nadu)..As a consequence, confessional statements made to these officers would be barred under Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act..The Court also held that confessional statements made to these officers under Section 67 of the NDPS Act will not be admissible as evidence..The Bench of Justices Rohinton Fali Nariman, Navin Sinha and Indira Banerjee was answering a reference made by a Division Bench in 2013, which had raised the following issues:1) Whether the officer investigating the matter under the NDPS Act would qualify as police officer or not?2) 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?.The reference to the present three-judge Bench was made after a doubt was expressed about the law laid down in Kanhaiyalal v. Union of India in which it was held that an officer under Section 63 is not a police officer and thus the bar under Sections 24 and 27 of the Evidence Act cannot be attracted.It was also stated in that judgment that a statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person, and can also be the basis for conviction..Answering the first reference in affirmative, the majority judgment of Justices Nariman and Sinha states,.“[O]fficers 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.”.The Court noted that given the stringent provisions of the NDPS Act, “statutes like the NDPS Act have to be construed bearing in mind the fact that the severer the punishment, the greater the care.”.Section 67 of the NDPS Act deals with the power to call for information, etc. It states:."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.".After citing a catena of decisions, the Bench noted that if the courts were to arrive at the conclusion that a confessional statement made under the Act would be admissible, then it would directly infringe upon fundamental rights enshrined in the Constitution.."If we were 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."Majority verdict of Supreme Court.Nariman and Sinha JJ thus held 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.The Court has also stated that a statement under Section 67 of the Act cannot be compared to Section 163 (1) of the Code of Criminal Procedure (CrPC). The judgment reads,"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.".Further, it has been noted that the safeguards which are followed while recording a statement under Section 163(1) of CrPC are not required to be followed under the NDPS Act. The Court noted,"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.”.With these observations, the judgments in Kanhaiyalal and Raj Kumar Karwal were held to be bad in law. Other judgments that expressly refer to these judgments also stand overruled. The judgments in Noor Aga and Nirmal Singh Pehlwan v. Inspector, Customs were held to be correct in law..Justice Banerjee in her dissenting opinion states that she is unable to persuade herself to agree that " 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.".The dissenting opinion draws a difference between Section 53A of NDPS Act and Section 162 of the CrPC as the one making a statement under CrPC not asked to sign it but under NDPS one does sign it. ."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, 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,"Judgment.Justice Banerjee has noted that while the right to a fair trial by an impartial Court and/or Tribunal is a human right under the UDHR and an essential concomitant of the fundamental rights, at the same time, the fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society..Further, holding that the statute is clear that statements made under Section 67 would indeed be acceptable as evidence states that "When a statutory provision is clear and there is no ambiguity, this Court cannot alter that provision by its interpretation. To do so, would be to legislate, which this Court is not competent to do.".The Court has now sent back the appeals and Special Leave Petitions to Division Benches, to be disposed of on merits..Senior Advocates Sushil Kumar Jain, Anand Grover, and S Nagamuthu appeared for the various appellants before the Court. Additional Solicitor General Aman Lekhi appeared for the Union of India. .Read Judgment: