Law of Confessions under the NDPS Act: A legal conflict

Section 53 of the NDPS Act empowers officers of the department of central excise, narcotics, customs, revenue intelligence and/or any other department of the Central Government including para-military forces or armed forces with the powers of an officer-in-charge of a police station, to investigate into offences under the Act...

The Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act") was enacted to consolidate and amend the law relating to narcotic drugs. The Act comprises stringent provisions for control and regulation of narcotic drugs and forfeiting properties derived from or used in illicit traffic in narcotic drugs and psychotropic substances.

This Article discusses the legal position vis-à-vis evidentiary value of confessions given before officers authorised to investigate into offences under the Act, and whether such authorised officers would be deemed "police officers" for the purpose of Section 25 of the Indian Evidence Act, 1872 ("IEA").

Section 53 of the NDPS Act empowers officers of the department of central excise, narcotics, customs, revenue intelligence and/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, by notification in the Official Gazette, to investigate into offences under the Act.

Confessions under the NDPS Act are recorded by virtue of Section 67 of the NDPS Act. Section 67 empowers an authorised officer to-

(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, during the course of any enquiry in connection with the Act.

Section 25 of the IEA dispenses with the evidentiary value of confessions made by an Accused before a Police Officer enumerating that confessions made to a Police Officer shall not be proved as against a person accused of any offence. 

Are Authorised Officers under Section 53 of the NDPS Act "Police Officers" for the purpose of Section 25 of IEA?

In 2013, the Apex Court in Tofan Singh v. State of T.N.ⁱ, while dealing with the subject issue, referred the matter to a larger bench in view of conflicting opinions on the point. In 2016, a three-judge-bench was deciding the subject issue pursuant to the reference, however, pending the decision, Justice K.H. Khehar retired. Thereafter, on July 18, 2018 a Division Bench of the Supreme Court presided by Justices Ranjan Gogoi and R. Banumathi directed the Registry to bring it to the notice of the Chief Justice about the pendency of the decision on the issue. Nevertheless, the outlook of the larger bench on the issue is still pending as of today.

Just prior to the reference, the subject issue was discussed in two-judgments delivered by the Apex Court-

1. In Ram Singh v. Central Bureau of Narcoticsⁱⁱ, (on April28,2011)and
2. In Nirmal Singh v. Inspector (Customs)ⁱⁱⁱ (on July 21,2011).

In Ram Singh v. CBN the ratios previously rendered in Badku Joti Savant v. State of Mysore, Raj Kumar Karwal v. UOI and Kanahiyalal v. UOI were endorsed holding that that an officer vested with the powers of an officer in charge of a police station u/s.53 of the NDPS Act would not be a "police officer" within the meaning of Section25 of the IEA and a confession recorded before such officer was admissible in evidence.

However, in Nirmal Singh v. Inspector (Customs), the ratio rendered by the co-ordinate bench in Noor Aga v. State of Punjab was endorsed and the conviction of accused u/s.22 of NDPS Act was set aside.

In Noor Aga v. State of Punjab^iv (supra)[delivered on July 9,2008] the Apex Court, observing the subject issue to have been kept open by the three-judge-bench in State of Punjab v. Barkat Ram, held that officers invested with the power of police officers by reason of a special statute in terms of Section 53(2) of the NDPS Act would be deemed "police officers" and for the said purposes, Section 25 of the IEA would be applicable.

In this backdrop, the issue was referred to the larger bench in Tofan Singh's case which is pending.

In State of Punjab v. Barkat Ram^v (delivered on August 30,1961) a three-judge-bench of the Supreme Court while holding Customs Officers to not be Police Officers for the purposes of Section 25 of the IEA, in a 2:1 ratio held-

"We therefore hold that the Customs Officers are not police officers for the purpose of S.25 of the Evidence Act. We further hold that the conviction of the respondent for the offences under S.32(1) of the Foreign Exchange Regulation Act, 1947, 'and under s.167(81) of the Sea Customs Act,1878, on the basis of his statements to the Customs Officers, was legal and was wrongly set aside by the High Court. We therefore allow the appeal, set aside the order of acquittal of the respondent for the aforesaid offences and restore the order of conviction passed by the Magistrate and confirmed by the Sessions Judge. 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 ch.XIV of the Code of Criminal Procedure, have been conferred, are police officers or not for the purpose of S.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."

In Badku Joti Savant v. State of Mysore^vi (delivered on March 1,1966), a five-judge-bench of the Supreme Court, while dealing with the evidentiary value of a confession made before Deputy Superintendent of Customs & Excise, distinguished the powers, functions and duties of Police Officers and Customs Officers. The Court concurred with the ratio of Barkat Ram (supra) and laid down the law holding-

"…, the statement made by the appellant to the Deputy Superintendent of Customs and Excise would not be hit by S.25 of the Evidence Act and would be admissible in evidence unless the appellant can take advantage of S.24 of the Evidence Act. As to that it was urged on behalf of the appellant in the High Court that the confessional statement was obtained by threats. This was not accepted by the High Court and therefore s.24 of the Evidence Act has no application in the present case. It is not disputed that if this statement is admissible, the conviction of the appellant is correct. As we have held that a Central Excise Officer is not a police officer within the meaning of those words in s.25 of the Evidence Act the appellant's statement is admissible. It is not ruled out by anything in s.24 of the Evidence Act and so the appellant's conviction is correct and the appeal must be dismissed. We hereby dismiss the appeal."

In Raj Karwal v UOI^vii (delivered on March 21,1990), the ratios in Barkat Ram and Badku Joti Savant (both supra) were endorsed while deciding the subject issue in an NDPS case. The Division Bench of the Supreme Court held-

"The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet under Sec. 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 Sec. 173, he cannot be described to be a police officer under S. 25, Evidence Act."

In Kanahiya Lal v. UOI^viii (delivered on January 9,2008), a Division Bench of the Supreme Court reiterated the view taken in Raj Karwal (supra) holding Officers of the Revenue Intelligence and ipso facto of the Customs Department could not be deemed as "police officers" and confessions recorded before such officers would not be hit by Section 25 of the IEA.

It would be pertinent to note that the Apex Court, in Nirmal Singh's judgment (delivered on July 21,2011)endorsed the ratio rendered in Noor Aga's decision, which, in turn, did not take into consideration the previous decisions rendered by the division bench in Raj Karwal and five-judge-bench in Badku Joti Savant (both supra) which essentially lay down the law. The ratio in Badku Joti Savant clearly distinguishes Police Officers from Customs/Excise Officers and holds that a confession made before such authorised officers would not be hit by Section-25 of IEA. This finding was affirmed the judgments delivered in Raj Karwal and Kanahiya Lal on March 21,1990 and January 8,2008, respectively.

Applying the doctrine of binding precedent, the Apex Court in Noor Aga (supra) was bound by the previous view on the subject issue.

CONCLUSION

To conclude, pending the decision of the larger bench in Tofan Singh's case, the ratio laid down in Noor Aga (supra) cannot be a binding precedent and the law laid down in Badku Joti Savant and correspondingly in Raj Karwal (both supra) would hold the field. However, in the interest of justice, the decision of the larger bench is awaited.