CONFESSION UNDER NDPS ACT, CONFLICT YET TO BE RESOLVED
Introduction
The
Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted to consolidate
and amend the law relating to narcotic drugs. Till date to achieve the
objective and purpose of the Act various amendments have taken place, however
one of the most controversial topic involved in NDPS is yet to be decided i.e. whether
the confession made u/s 67 of the NDPS Act is admissible or not?
This
article deals with two issues i.e. evidentiary value of the confession given to
the officer authorized to investigate the offence under the Act and whether the
officer appointed u/s 53 of the Act would be deemed as a police officer for the
purpose of Section 25 of the Indian Evidence Act, 1872.
The
plain reading of section 42 of the NDPS Act implicates that the officer u/s 42 of
the Act is only empowered to enter and search the place and if any contraband
is found then to seize that article and arrest the alleged accused person. Now,
after the search and seizure as per Section 52(3) of the NDPS Act the officer
empowered u/s 42 has to without any delay forward the arrested person and
seized article to the officer-in-charge of nearest police station or to the
officer empowered u/s 53 of the Act. This leads to one conclusion that the
officer appointed u/s 42 of the Act is not authorized to record the confession,
if any, confession is to be recorded it will be recorded either by the officer
conducting investigation or by officer appointed by Central or State Government
u/s 53 of the Act.
Also,
the use of word “enquiry” rather than investigation in section 67 implies that
word “any person” used in section 67 does not include accused person as before
the proceeding u/s 42the person can never be in custody.
Now,
after it is established that the officer u/s 42 is different from the officer
empowered to conduct investigation. The next question which arises is whether
the confession recorded under NDPS Act is admissible or whether it is hit by
section 25 of the Indian Evidence Act, thereby making it inadmissible? If the
confession is made before the officer-in-charge of police station, then as per
section 25 of the Indian Evidence Act it need not be proved against the person
accused of any offence. This leads to another question, whether the officer u/s
53 of the Act is police officer or not?
In
Kanhaiyalal v Union of India[1],
Hon’ble Apex Court held that confession before officer of NCB is admissible and
the officer is not a police officer. In 2013, Tofan Singh v State of Tamil
Nadu[2]
the view taken in the Kanhaiyalal’s Case was referred to larger bench
mentioning that a re-look is required into the case of Kanhaiyalal so that
further confusion and conflicts can be avoided. The question of law referred by
bench of A.K. Patnaik and A.K. Sikri to Supreme Court was as follows;
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 a confessional statement or not, even if the officer
is not treated as a police officer?
The
Court while reference stated:“We have also to keep in mind the crucial test to determine
whether an officer is a police officer for the purpose of Section
25 of the Evidence Act viz. the “influence or authority” that an officer
is capable of exercising over a person from whom a confession is obtained. The
term “police officer” has not been defined under the Code or in
the Evidence Act and, therefore, the meaning ought to assessed not by
equating the powers of the officer sought to be equated with a police officer
but from the power he possesses from the perception of the common public to
assess his capacity to influence, pressure or coercion on persons who are
searched, detained or arrested. The influence exercised has to be, assessed
from the consequences that a person is likely to suffer in view of the
provisions of the Act under which he is being booked. It, therefore, follows
that a police officer is one who:-
(i) is considered to be a
police officer in “common parlance” keeping into focus the consequences
provided under the Act.
(ii) is capable of
exercising influence or authority over a person from whom a confession is
obtained.”
"It has been 7 years, since the case of
Toofan Singh has been referred to larger bench for decision, it was fixed for
hearing on 18th August, 2020, however it is still pending and the Courts have
not yet clarified the air by settling the conflicted position of confession
under the NDPS Act, 1985."[3].
Apex
Court in Mohtesham Mohd. Ismail v
Spl. Director, Enforcement Directorate[4] held – “We
may, however, notice that recently in Francis Stanly v Intelligence
Officer, Narcotic Control Bureau, Thiruvananthapuram[5],
this Court has emphasized that
confession only if found to be voluntary and free from pressure, can be
accepted. A confession purported to have been made before an authority would
require a closer scrutiny. It is furthermore now well settled that the Court
must seek corroboration of the purported confession from independent sources”
In Noor Aga v State of Punjab & Anr.[6] Hon’ble Apex Court held: -“102.
Section 25 of the Evidence Act was enacted in the words of Mehmood. J. in Queen
Empress v Babulal(ILR (1884) 6 ALL 509) to put a stop to the extortion of confession, by taking away from the
police officers as the advantage of providing such extorted confession during
the trial of accused persons. It was, therefore enacted to subserve a high
purpose.”
It
is true that the confession made
by a co-accused shall not
be the sole basis for
a conviction. Apex Court
in Kashmira Singh vs. The State
of Madhya Pradesh[7] held that the confession of an accused person is not evidence in
the ordinary sense of the term as defined in Section 3 of the Indian
Evidence Act, 1872. It cannot be made the foundation of a conviction and can only be used
in support of other evidence. The proper way is, first, to marshall the
evidence against the accused excluding
the confession altogether
from consideration and see whether, if it is believed, a conviction could safely be based
on it. If it is capable of belief independently of the confession, then of course it is not
necessary to call the confession in
aid. But cases may arise where the Judge is not prepared to act on the other
evidence as it stands, even though, if believed, it would be sufficient to
sustain a conviction. In
such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence
and thus fortify himself in believing what without the aid of the confession he would not be
prepared to accept.
In
the light of the judgment in Kashmira Singh’s case, even if the statement u/s
67 of the NDPS Act amounts to confession, certain requirements is to be
fulfilled to rely on such confessional statement. If the alleged accused
persons will be subjected to interrogations while they were in custody, it
cannot be said that the statement made by them was voluntary. Authorities under
the Act, even if they are not kept in position similar to that of police
officers, can always show that alleged accused persons had not formally been
arrested before such statements were recorded.
Conclusion
The
real chaos which has been the reason of current conflict is that the definition
of ‘Police Officer’ has not been defined in the Evidence Act or in the Criminal
Procedure Code. The reason before the insertion of section 25 of the IEA was to
prevent threat and coercion exercised by the police officer to extract
statement from the accused person. The departmental officers who is invested
with the powers of police, whether recognized as police officer or not, is
always presumed to be in such a position where they can exercise dominance over
the other party. The Court while weighing the evidentiary value of such a statement
cannot lose sight of ground realities. Circumstances attendant to making of
such statements should, in our considered opinion, be taken into consideration.
It is true that even though confession made before the police under section 25
of the Indian Evidence Act,need not be proved against the maker but, in
plethora of cases Hon’ble Courts have convicted the accused person on the basis
of confession and other incriminating evidences. There can be no straight
jacket formula. Whether a confessional statement is made voluntary and free
from any pressure must be judged from the facts and circumstances of each case.
This current position of admissibility of confession statement in NDPS cases, made before NCB officers, completely defeat the purpose of Section 25 of the Indian Evidence Act. If the intention of the legislature was to divert from the principal enumerated u/s 25 of the Indian Evidence Act, then express provision must have been incorporated under the NDPS Act.
[1]Kanhaiyalal v Union of India,
2008 (4) SCC 668
[2]Tofan Singh v State of Tamil Nadu, 2013 (4) R.C.R. (Criminal) 631
[3]https://www.livelaw.in/top-stories/section-67-ndps-statement-whether-confessional-tofan-singh-reference-160729
[4]MohteshamMohd. Ismail v Spl.
Director, Enforcement Directorate 2007 (8) SCC 254
[5]Francis
Stanly v Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram 2007 AIR SCW 497
[6]Noor Aga v State of Punjab &
Anr, (2008) 16 SCC 417
[7]Kashmira Singh vs. The State of Madhya Pradesh, AIR 1952 SC 159
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