Tofan Singh vs State of Tamil Nadu

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 44 th 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]

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.

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.

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-GH; 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.

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), 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-incharge 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-GH] 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][693B-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, 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, 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 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]

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 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][742C-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 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]

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; 746A-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 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; 750FG; 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; 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, 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]

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 the Cr.P.C shall, in the absence of a specific provision to the contrary, affect any special law in force or any special jurisdiction or power conferred by any other law. The NDPS Act being a special enactment, nothing in the Cr.P.C can affect any investigation or inquiry under the NDPS Act, in the absence of any provision to the contrary in the NDPS Act. [Para 73][779-D-E]

2.7 Section 2(xxix) of the NDPS Act does not make the provisions of the Cr.P.C. applicable to any investigation or enquiry under the NDPS Act. The said Section only provides that words and expressions used in the NDPS Act, and not defined, but defined in the Cr.P.C. have the meanings assigned in the Cr.P.C., unless the context otherwise requires. [Para 74][779-E]

2.8 Section 53 enables the Central Government or the State Government, by notification in the Official Gazette, to invest any officer of the Departments mentioned in the said Section, or any other Department of the Government, with the powers of an Officer in Charge of a Police Station for the investigation of offences under the said Act. If the provisions of the Cr.P.C were to apply to investigations under the NDPS Act, it would not have been necessary to invest any officer under the NDPS Act with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act, by notification in the Official Gazette. The provisions of Section 50(5) and 51 of the NDPS Act would also not have been necessary. [Paras 76 and 77][780-B-D]

2.9 There does not appear to be any bar in Section 53 or anywhere else in the NDPS Act, to officers empowered under Sections 41(2) or 42, also being invested under Section 53, with the powers of an Officer in Charge of a Police Station for investigation of offences under Section 53 of the NDPS Act. [Para 78][780-E]

2.10 There does not appear to be any provision in Chapter V or elsewhere in the NDPS Act, which can reasonably be construed to render an officer under Section, 41(2) or 42(1) of the NDPS Act ‘functus officio’ once the entry, search, seizure or arrest has been made. [Para 79][780-G]

2.11 Section 53A of the NDPS Act is ex facie contradictory to Section 162 of the Cr.P.C, which provides that no statement made to a police officer, in course of an investigation under Chapter XII of the Cr.P.C shall, if reduced to writing, be signed by the person making it, or used for any purpose at any inquiry or trial in respect of the offences under investigation, except inter alia to confront him if he gives evidence as a witness. Section 53A covers any statement made and signed by any person, before any officer empowered under Section 53 for the investigation of offences, during the course of any proceedings by such officer, under the NDPS Act, be it an inquiry or investigation. This provision makes it abundantly clear that the principles embodied in Sections 161/162 of the Cr.P.C have no application to any inquiry or other proceeding under the NDPS Act, which would include an investigation. [Paras 81 and 82][781-F-H; 782-AB] State of Delhi v. Shri Ram Lohia AIR 1960 SC 490; George v. State of Kerala and Anr. (1998) 4 SCC 605 : [1998] 2 SCR 303 ; Munshi Prasad and Ors. v. State of Bihar (2002) 1 SCC 351 : [2001] 4 Suppl. SCR 25 – held inapplicable.

2.12 The NDPS Act, being a special statute, and in any case a later Central Act, the provisions of the NDPS Act would prevail, in case of any inconsistency between the NDPS Act and the Evidence Act. [Para 85][782-D-E]

2.13 The Evidence Act would however apply to a trial under the NDPS Act in other respects, unless a contrary intention appears from any specific provision of the NDPS Act. The previous statement of a witness, even if admissible in evidence cannot be used against the w itness unless the witness is confronted with the previous statement and given an opportunity to explain. However, certain documents not otherwise admissible under the Evidence Act, unless proved by evidence, may be admissible under Section 52A(4) of the NDPS Act, subject to the fulfilment of the conditions of that section. [Para 86][782-G; 783A]

Murli and Anr. v. State of Rajasthan (2009) 9 SCC 417: [2009] 13 SCR 378 – referred to.

2.14 Legislature has in its wisdom used the expression “investigation of the offence” in Section 53, and the term “inquiry” in Section 67. Even though in common parlance “inquiry” and “investigation” are used interchangeably, “investigation” in Section 53 and “inquiry” in Section 67 cannot be construed to mean the same. When different words are used in the same statute, there is a presumption that they are not used in the same sense. A construction deriving support from differing phraseology in different sections of a statute, may be negatived if it leads to unreasonable or irrational results. Accordingly Section 53A refers to a statement before any officer empowered under Section 53 for the investigation of offences during the course of any inquiry or proceeding by such officer. [Paras 90 - 93][784-G-H; 785-CE]

T.A. Krishnaswamy v. State of Madras AIR 1966 SC 1022 : [1966] SCR 31 – relied on.

Kanhaiyalal Vishindas Gidwani v. Arun Dattatreya Mehta (2001) 1 SCC 78 – referred to.

2.15 The NDPS Act does not define the expression “investigation” or the expression “inquiry”. However, Section 2(xxix) of the NDPS Act provides that the words and expressions used in the Act and not defined but defined in the Code of Criminal Procedure, 1973 have the meanings respectively assigned to them in that Code. The definition of the terms ‘inquiry’ and ‘investigation’ as contained in Sections 2(g) and 2(h) of the Cr.P.C. [Paras 94 and 95][785-E-F]

2.16 The meaning of a word or expression used in a statute can be construed and understood as per its definition, unless the “context otherwise requires”. The definition of inquiry in Section 2(g) of the Cr.P.C. does not help to interpret the word inquiry in Section 67 of the NDPS Act or in any other provision of Chapter V thereof, since an inquiry under Chapter V of the NDPS Act is not by any Magistrate or Court. It is well settled that a word not specifically defined in a statute may be interpreted as per its ordinary meaning, which may be ascertained by reference to a dictionary. As per the Concise Oxford English Dictionary (Eleventh Edition) the word investigate means ‘carry out a systematic or formal enquiry into an incident or allegation as to establish the truth’. Investigation, is the act of investigating. The word “enquire” is, as per the same dictionary, to ask for information. It also means “investigate”. Enquiry is the act of asking for information. It is an official investigation. Words and phrases in a statute have to be construed in the context in which they have been used. The statute has to be read as a whole. [Paras 96 and 97][786-A-D]

Concise Oxford English Dictionary (Eleventh Edition) – referred to.

2.17 Having regard to the meaning of the expressions investigate/investigation and enquire/enquiry given in the Oxford Dictionary, the use of the expressions in Central Excise Act, 1944, Customs Act, 1962, Railway Property (Unlawful Possession) Act, 1966 and Cr. P.C. and having regard to the language and tenor of Sections 53, 53A, and Section 67 of the NDPS Act, the expression “inquiry” may reasonably be construed as a generic expression, which could include the investigation of an offence. An inquiry as contemplated in Section 67 is the collection of information generally, to find out if there has been any contravention of the NDPS Act, whereas investigation is the probing of an offence under the NDPS Act and collection of materials to find out the truth of the case sought to be made out against an accused offender. However investigation may follow an enquiry or be part of an enquiry. This is evident from a reading of the NDPS Act as a whole. [Para 100][787-B-D]

2.18 An officer empowered under Section 53 with the powers of an Officer in Charge of a Police Station for the investigation of an offence, also has the power to make an inquiry. This is clear from the language used in Section 53A(1) of the NDPS Act. The officer empowered under Section 53, with the power of an Officer in Charge of a Police Station, can obviously make an inquiry within the meaning of Section 67 to find out whether there has been any contravention of the NDPS Act. A statement made before such an officer in course of any inquiry or other proceeding, which is taken down in writing and signed by the person making it, may in certain circumstances, be relevant for the purpose of proving, in any prosecution for an offence under the NDPS Act, the truth of the facts it contains. [Para 102][787F-H; 788-A]

2.19 The power of an officer to investigate is not derived from Section 53. It is an enabling provision, which empowers the Central/State Government to invest an officer with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act. The power to invest an officer with the powers of an Officer in Charge of a Police Station flows from Section 53. The authority to investigate into an offence is implicit in the wider power to make an inquiry in connection with the contravention of any provision of the NDPS Act. [Para 103][788-B-C]

2.20 An enquiry may be carried out by an officer referred to in Section 42 of the NDPS Act, if empowered in this behalf. This is clear from Section 67. The same officer can also investigate an offence under the NDPS Act, if he is also invested under Section 53, with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act. The power of an authorized officer referred to in Section 42, to make an inquiry is not derived from Section 67. Section 67 empowers an authorized officer, referred to in Section 42, to do the following acts during the course of an enquiry: “(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.” [Paras 104-106][788D-E; F-H]

2.21 Investigation of an offence under the NDPS Act, is a part of an inquiry under Chapter V of the said Act. Investigation of an offence under the NDPS Act can be carried out by the same officer empowered under Section 42, who triggered the proceedings under Chapter V of the NDPS Act and carried out search, seizure and/or arrest, if that officer is also invested under Section 53 of the NDPS Act, with the powers of an Officer in Charge of a Police Station, for the purpose of investigation. [Para 107][789-A-B]

Mukesh Singh v. State (Narcotic Branch of Delhi) (2020) SCC Online SC 700 – followed.

2.22 The language and tenor of Section 67 or Sections 41/

42 does not support the contention that an inquiry can only be made by an officer referred to in Section 42, who is duly authorized, before exercise of the powers of entry, search, seizure or arrest, or at the stage of entry, search, seizure and arrest, but not afterwards. The exercise of power under Sections 41/42 of the NDPS Act does not necessarily have to be preceded by an inquiry. If an inquiry were to be restricted to the stage prior to the exercise of the power of entry, search, seizure and arrest or to the stage of making an entry, search, seizure or arrest, the NDPS Act would have specifically provided so. There is no such provision, either express or implied. It is not permissible to read into Sections 41, 42 etc the words “after an inquiry” which do not exist in those provisions. Nor is it permissible to read the words “before or at the time of entry, search, seizure or arrest” after the words “during the course of any enquiry” in Section 67. [Para 110][789-G-H; 790-A-C]

2.23 The power conferred by Section 67 on an officer referred to in Section 42, duly authorised by the Central/State Government in this behalf, to call for information, require production of any document or thing or to examine any person, etc. is exercisable in course of any inquiry. The power could be exercised at any stage of the enquiry, before a complaint is filed. The powers can be exercised prior to or after exercise of powers under Sections 41/42 and would include the stage of investigation of an offence by an officer referred to in Section 42, if he is also invested with powers under Section 50 of the NDPS Act. [Para 111][790-C-D]

2.24. An officer referred to in Section 42 of the NDPS Act, if not invested with powers under Section 53 of the said Act, derives the power to call for information, require production of documents and things and to examine persons from Section 67 of the NDPS Act. The powers of investigation of an Officer in Charge of a Police Station include such powers. An officer invested with powers under Section 53 can also make an enquiry. This is clear from the use of the words “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...” in Section 53A(1). The benefit of Section 53A(1) would not be available in the case of a similar statement made before an officer empowered under Section 42, but not under Section 53 of the NDPS Act. [Para 112][790-E-G]

2.25 If, after an inquiry or investigation, a complaint is filed, and the Special Court takes cognizance of the offence, any statements, documents or other things obtained in the inquiry/investigation may be tendered and proved by the prosecution in the trial against the offender unless the statement and/or document and/or thing has been obtained by any promise, inducement, coercion, threat, or intimidation. The question of whether any statement has been obtained by promise, coercion, threat etc. and/or whether any particular officer, is authorized under Section 42 or invested with powers under Section 53 are matters of trial. The Prosecution has to establish the charges against the offender, in accordance with law, at the trial. [Para 113][790-G-H; 791-A]

2.26 The provisions of the Cr.P.C. only apply to all warrants issued and searches and seizures made under the NDPS Act, in so far as they are not inconsistent with the provisions of the NDPS Act, as provided in Section 51 of the NDPS Act and to the search of a person, without complying with the requirement to take the person to be searched, to the nearest Gazetted Officer or Magistrate, as provided in Section 50(5) of the NDPS Act. Of course, the principles of Section 163 of the Cr.P.C. are implicit in the provisions of the NDPS Act relating to inquiry and investigation though the said Section may not apply to such inquiry or investigation. This is because the bar of Article 20(3) of the Constitution of India has to be read into every statute in spirit and substance. There can be no question of obtaining any statement by any inducement, promise or threat. [Para 117][800H; 801-A-B]

2.27 The NDPS Act is a complete code. A comparison of the various provisions of Chapter XII of the Cr.P.C with those of Chapter V of the NDPS Act also makes it clear that the provisions in Chapter V of the NDPS Act are independent of, and not controlled by the provisions of the Cr.P.C except as provided in Sections 50(5) and 51 of the NDPS Act. There are differences between the procedure of inquiry/investigation under Chapter V of the NDPS Act and the procedure of investigation and/or enquiry under the Cr.P.C. [Para 118][801-C-D]

2.28 Section 36A(1)(d) of the NDPS Act provides that “a Special Court may, upon perusal of police report of the facts constituting an offence under the NDPS Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence, without the accused being committed to it for trial”. Section 36A (1)(d) is similar to Section 190 of the Cr.P.C. A complaint, as defined in Section 2(d) of the Cr.P.C., means any allegation made to a Magistrate orally or in writing, to enable the Magistrate to take action under the Cr.P.C. A complaint need not be on a Police Report. However, as per the Explanation to Section 2(d), a report of a police officer, which discloses a cognizable offence is to be deemed to be a complaint and the police officer who made the complaint, shall be deemed to be the complainant. [Paras 120 and 121][803-A-D]

2.29 Section 36A(1)(d) enables the police to file a report, before the Special Court, of facts constituting an offence under the NDPS Act, which, as per the definition of police report in Section 2(d) of the Cr.P.C., means a report forwarded under Section 173(2) of the Cr.P.C. Such a police report is deemed to be a complaint. Such police report can be filed after an investigation under Chapter XII of the Cr.P.C. There is no provision in the NDPS Act, which makes it incumbent upon the concerned officers who make any inquiry/investigation under the NDPS Act, to prepare or file any report. [Para 124][803-F-H]

2.30 If the police investigate any offence under the NDPS Act and submit a report before the Special Court, all the relevant provisions of the Cr.P.C. would have to be complied with, including in particular Sections 161, 162, 163, 164 and 173. A statement before the police can neither be signed nor relied upon for any purpose in a Court of law, except for the purpose specified in the said section, that is, inter alia to confront the person making the statement in cross examination in the trial. [Para 125][804A-B]

2.31 The Legislature has in its wisdom differentiated between a police report, which is deemed to be a complaint, and a complaint made by an officer of the Central or State Government, authorized in this behalf. It is not for this Court to question the wisdom of the Legislature. The fact that the Special Court may take cognizance of an offence, upon a complaint made by an officer of the Central or State Government, authorized in this behalf, and not a report, as required in case of the police, also shows that an inquiry or investigation under the NDPS Act is not to be treated in the same way, as a police investigation into an offence. [Para 126][804-C-D]

2.32 The expression “police” is ordinarily understood to mean that executive civil force of the State, entrusted with the duty of maintenance of public order, and also the prevention and detection of crime. The expression “police” or “police officer” is not defined either in the Evidence Act 1872 or in the Cr.P.C. Police officers are governed inter alia by the Police Act 1861, enacted to make the police an effective instrument for the prevention and detection of crime. [Paras 128 and 129][804-FH]

2.33 The police officers have enormous powers. The powers of a police officer are far greater than those of an officer under the NDPS Act invested with the powers of an Officer in Charge of a Police Station for the limited purpose of investigation of an offence under the NDPS Act. The extensive powers of the police, of investigation of all kinds of offences, powers to maintain law and order, remove obstruction and even arrest without warrant on mere suspicion, give room to police officers to harass a person accused or even suspected of committing an offence in a myriad of ways. The police are, therefore, in a dominating position to be able to elicit statements by intimidation, by coercion, or by threats either direct or veiled. The powers of NDPS officers being restricted to prevention and detection of crimes under the NDPS Act and no other crime, they do not have the kind of scope that the police have, to exert pressure to extract tailored statements. [Para 139][808-F-H; 809-A]

2.34 The provisions of the Cr.P.C do not apply to any inquiry or investigation or other proceeding under the NDPS Act, except to the extent expressly provided by the NDPS Act, in view of Section 4(2) read with Section 5 of the Cr.P.C. [Para 140][809-AB]

2.35 Officers under the NDPS Act, invested under Section

53 with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act, do not exercise all the powers of police officers. They do not have the power to file a police report under Section 173 Cr.P.C which might be deemed a complaint. There is no provision in the NDPS Act which requires any officer investigating an offence under the said Act or otherwise making an inquiry under the said Act to file a report. [Para 143][809-D-F]

2.36. Officers under the NDPS Act not being police officers, Sections 161/162 of the Cr.P.C have no application to any statement made before any officer under the NDPS Act, in the course of any inquiry or other proceedings under the NDPS Act. [Para 144][809-F-G]

2.37 In any case, 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, or used for any purpose, save as provided in the proviso to the said section, that is, to confront the person making the statement, if he gives evidence as a witness, 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. [Para 145][809-G-H; 810-A-B]

2.38 The statements made in any inquiry or investigation may be recorded in writing and even signed by the person making it. In the absence of any provision similar to Section 162, in the NDPS Act, a statement made before an officer under the NDPS Act in the course of any inquiry, investigation or other proceedings, may be tendered in evidence and proved in a trial for prosecution of an offence under the NDPS Act in accordance with law. A statement confessional in nature is in the genre of extra judicial confessions. [Para 146][810-B-C]

3.1 A confession made by an accused person is irrelevant in a criminal proceeding, if it appears to the Court that the confessions may have been elicited by any inducement, threat or promise from a person in authority and sufficient, in the opinion of the Court, to give the accused person reasonable grounds, for supposing that by making the confession, he would gain any advantage or avoid any disadvantage in respect of proceedings against him. [Para 148][810-F-G]

State of Rajasthan v. Raja Ram (2003) 8 SCC 180: [2003] 2 Suppl. SCR 445; Gura Singh v. State of Rajasthan (2001) 2 SCC 205 : [2000] 5 Suppl. SCR

408 – referred to.

3.2 It is one thing to say that a piece of evidence is inadmissible and another thing to assess two or more pieces of evidence on their probative value. A confession before a Judicial Magistrate under Section 164 of the Cr.PC may have higher probative value than other confessions. However, on that parameter alone other confessions for example, extra judicial confession cannot be rendered inadmissible in law. [Para 151][813-D-E]

3.3 Whether the officer concerned is duly empowered and/or authorised to make an enquiry/investigation, whether any statement or document has improperly been procured, etc. are factors which would have to be examined by the Court on a case to case basis. Having regard to all relevant facts and circumstances, the Court may not base conviction solely on a statement made in an inquiry which is confessional, in the absence of other materials with which the statement can be linked. It is for the Special Court to weigh the statement and assess its evidentiary value, having regard to all relevant factors. All statements and documents tendered in evidence have to be proved at the trial in accordance with law. [Para 153][813-F-H; 814-A]

3.4 The officers under the NDPS Act are drawn from different Government Departments and are not necessarily police officers as such. The NDPS Act also specifically differentiates police officers from other officers entrusted with powers under the NDPS Act, which is evident, inter alia, from Sections 41(2), 42(1), 52(3)(a), 53(1) and (2), 55, 68T of NDPS Act. [Para 175][826-A-B]

3.5 The NDPS Act may loosely have been described as a penal statute in some judgments of this Court in the sense that the NDPS Act contains stringent penal provisions including punishment of imprisonment of twenty years and even death sentence in certain exceptional cases of offence repeated after earlier conviction. [Para 183][827-G-H]

Badku Joti Savant v. State of Mysore AIR 1966 SC 1746:[1966] SCR 698; Romesh Chandra Mehta v. State of West Bengal AIR 1970 SC 940: [1969] SCR 461; Illias v. Collector of Customs, Madras AIR 1970 SC 1065: [1969] SCR 613 – followed.

State of Punjab v. Barkat Ram AIR 1962 SC 276: [1962] SCR 338; State of Uttar Pradesh v. Durga Prasad (1975) 3 SCC 210 : [1975] 1 SCR 881 ; Balkishan A Devidayal vs State of Maharashtra (1980) 4 SCC 600 : [1981] 1 SCR 175 ; Raj Kumar Karwal v. Union of India and Ors. (1990) 2 SCC 409 : [1990] 2 SCR 63; Kanhaiyalal v. Union of India (2008) 4 SCC 668 : [2008] 1 SCR 350 ; Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras (1999) 6 SCC 1 : [1999] 3 SCR 897 – relied on.

Amin Sharif v. Emperor AIR 1934 Cal 580 ; Nanoo Sheikh Ahmed and Another v. Emperor AIR 1927 Bom

4 ; Radha Kishun Marwari v. King-Emperor AIR 1932 Patna 293 ; Raja Ram Jaiswal v. State of Bihar AIR 1964 SC 828 : [1964] SCR 752 ; Abdul Rashid v. State of Bihar (2001) 9 SCC 578 – referred to.

4.1 Constitution Benches are constituted to resolve a constitutional issue, harmonize conflicting views and settle the law. A Constitution Bench decision might only be reconsidered by a Constitution Bench of a larger strength and that too in exceptional and compelling circumstances. An interpretation which has held the field for over fifty years should not be upset for the asking. A Change in the legal position which has held the field through judicial precedents over a length of time can only be considered when such change is absolutely imperative. [Para 185][828-C-D]

‘Constitutional Supremacy – A Revisit’ by V. Sudhish Pai - referred to.

4.2 The dominant object of the NDPS Act is to control and regulate operations relating to narcotic drugs and psychotropic substances, to provide for forfeiture of property derived from or used in illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Drugs and Psychotropic Substances, and for matters connected therewith. On the other hand, the dominant object of a penal statute is to provide for punishment of a range of intentional acts and omissions of different types, enumerated in the statute. The Penal Code is a typical penal statute. Statutes like the Prevention of Corruption Act 1988 and the Protection of Children from Sexual Offences Act 2012, which mainly provide for punishment of specific offences are also penal statutes. [Paras 186 and 187][828E-G]

5. Penal statutes enacted to deal with a social evil should liberally be construed to give effect to the object for which the statute has been enacted. [Para 188][828-G-H]

Rajindere Singh v. State of Punjab (2015) 6 SCC 477: [2015] 2 SCR 835; M. Narayanan Nambiar v. State of Kerala AIR 1963 SC 1116 : [1963] Suppl. SCR 724 – followed.

Standard Chartered Bank v. Directorate of Enforcement (2005) 4 SCC 530 : [2005] 1 Suppl. SCR 49 ; Balram Kumawat v. Union of India (2003) 7 SCC 628 : [2003]

3 Suppl. SCR 24 ; Reema Aggrawal v. Anupam (2004)

3 SCC 199 : [2004] 1 SCR 378 ; Rajindere Singh v. State of Punjab (2015) 6 SCC 477: [2015] 2 SCR 835 – relied on.

Seaford Court Estates Ltd. v. Asher (1949) 2 ALL ER

155 (CA) – referred to.

6.1 It cannot, however, be said that the NDPS Act, being a penal statute, in contradistinction to the Customs Act and the Central Excise Act, whose dominant object is to protect the revenue of the State, judicial interpretation of powers of investigation under those Acts, which are almost identical to the powers of investigation of an officer under the NDPS Act, would not be relevant to investigation under the NDPS Act. [Para 193][832-D-F]

6.2 It is true that an enquiry under the Central Excise Act, 1944 or the Customs Act 1962 is a judicial proceeding within the meaning of Sections 193 and 198 of the Penal Code, by virtue of Section 14(4) of the Central Excise Act and Section 108(4) of the Customs Act, which are identical provisions and read “Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code (Act 45 of 1860)” Section 40(4) of FERA and Section 9(4) of the Railway Property (Unlawful Possession Act) 1966 are also identical to and/or verbatim reproductions of Section 14(4) of the Central Excise Act and Section 108(4) of the Customs Act. [Para 209][858-E-G]

6.3 An offence punishable with imprisonment under the Central Excise Act, the Customs Act, the FERA, the Railway Property (unlawful possession) Act or any other similar enactment is triable by the Court of competent jurisdiction. Investigation into offences under these Acts termed as inquiry, are held by departmental officials duly authorized to enable the concerned authorities to decide whether a complaint should be filed before the Competent Court. If the information gathered and/or materials obtained so warrant, a complaint is filed. [Paras 211 and 212][859E-G]

6.4 An inquiry under the Central Excise Act by any Central Excise Officer, empowered by the Central Government, or under the Customs Act, by any officer of customs empowered by general or special order of the Principal Commissioner/Commissioner of Customs or under the FERA by an Enforcement Officer or under the Railway Property (Unlawful Possession) Act 1961 by an officer of the Railway Protection Force is not the same as a proceeding in a Court of Law or Tribunal. Such an inquiry is preliminary to trial by a Court of competent jurisdiction. It is akin to an enquiry conducted by a public servant under any other law with penal provisions including an enquiry under the NDPS Act. [Para 213][859-G-H; 860-A]

6.5 Investigation under these Acts have been given the status of judicial proceedings within the meaning of Sections 193 and 228 of the IPC, unlike investigation of an offence under the NDPS Act. The only difference is that the person making a statement in an investigation under any of these Acts, is burdened with the consequences of giving false evidence in any other judicial proceedings including proceedings in a Court of Law, punishable with imprisonment which may extend to three years and also fine [Section 193 IPC] or of intentional insult or interruption to a public servant at any stage of a “judicial proceeding” punishable with imprisonment which might extend to six months or with fine or both [Section 228 IPC]. [Para 214][860-B-D]

6.6. Since investigation under the Acts referred to above, namely the Central Excise Act, the Customs Act, the Railway Property (Unlawful Possession) Act has been given the status of judicial proceedings to deter persons from making false statements or otherwise intentionally hampering the investigation, the Legislature has deemed it appropriate to use the expression “shall have power to summon any person whose presence he considers necessary either to give evidence or to produce a document”. [Para 215][860-D-E]

6.7 The so called ‘evidence’ in the inquiry is not the same as evidence in a trial. Documents would still have to be tendered and proved at the time of trial. Whether any documents and/or statements obtained in course of investigation would at all be admissible in evidence at the trial and if so, the extent to which they would be relevant, would be decided by the Court trying the offence, having regard to the applicable law. [Para 216][860-F-G]

6.8 It is true that an Inquiry or investigation under the NDPS Act is not a judicial proceeding, just as an Inquiry or investigation by the police under the Cr.P.C. is not a judicial proceeding. However, a casual observation in a judgment of this Court, that “a police officer never acts judicially” in the context of an analysis of the reasons for inclusion of Section 25 of the Evidence Act, under which no confession to a police officer is to be proved as against a person accused of any offence, cannot be construed to lay down the proposition of law, that a confessional statement made to an officer in course of an enquiry before that officer cannot be tendered or proved in evidence, if the enquiry is not a judicial proceeding. Nor can such an observation be construed as a reverse proposition that all confessions in an enquiry before an officer, who is not police officer, but deemed to be a police officer for all purposes, with all the powers of a police officer including the power akin to Section 173(2) of the Cr.P.C, can be tendered and proved in evidence, only because the enquiry is a judicial proceeding within the meaning of Section 193 or 228 of the IPC, in the sense that a person intentionally giving false evidence in such proceeding, or intentionally insulting or causing interruption to a person holding such an enquiry is punishable with imprisonment. [Para 217][860-H; 861-A-D]

6.9 The fact that the provisions of Chapter V of the NDPS Act, which confer powers of entry, search, seizure, arrest, investigation and inquiry on certain officers, do not expressly use the phrase “collect evidence” is not really material to the issue of whether such officers are police officers to attract the bar of Section 25 of the Evidence Act. [Para 219][861-F]

6.10 It is difficult to appreciate how the fact that an inquiry under the Central Excise Act or the Customs Act or the FERA or any other Act which might be deemed to be a judicial proceeding to attract the penal provisions of Sections 193 and

228 of IPC, should make any difference to the admissibility in evidence, of the statements made in an enquiry under the NDPS Act. [Para 222][862-B-C]

6.11 It is true that all offences under the NDPS Act are cognizable under Section 37 of the NDPS Act. Some of the offences under the Central Excise Act and the Customs Act are also cognizable. Even though offences under the Railway Property (Unlawful Possession) Act are not cognizable, Section 6 of the said Act empowers any superior officer or member of the Railway Protection Force to arrest any person concerned with an offence under the said Act, without an order from a Magistrate and without a warrant. [Para 223][862-C-E]

6.12 Section 25 of the Evidence Act does not differentiate between evidence in a trial for non cognizable offence and evidence in a trial for cognizable offence. The admissibility of evidence does not depend on whether an offence is ‘cognizable’ or non-cognizable’. The mere fact that an offence was cognizable, enabling the police to arrest without warrant, should not make any difference to the admissibility or the probative value of the evidence adduced by the prosecution during the trial of the offence. [Para 224][862-F-G]

6.13 Some of the offences under the Central Excise Act and the Customs Act are also cognizable. It may also be pertinent to point out that while all offences under the NDPS Act including those punishable with imprisonment up to one year are cognizable, offences in the Railway Property (Unlawful possession) Act 1966, punishable with imprisonment of seven years, have been made non cognizable. [Para 225][862-G-H; 863-A]

6.14 There can be no doubt that the mandatory provisions of the NDPS Act to ensure fair trial of the accused must be enforced. However, over-emphasis on the principles of natural justice in drug-trafficking cases can be a major hindrance to the apprehension of offenders. In offences under the NDPS Act, substantial compliance should be treated as sufficient for the procedural requirements, because such offences adversely affect the entire society. [Para 226][863-A-C]

Union of India v. Padam Narain Aggarwal and Ors. (2008) 13 SCC 305 : [2008] 14 SCR 179 ; K. I. Pavunny v. Assistant Collector (H.Q.) Central Excise Collectorate, Cochin (1997) 3 SCC 721 : [1997] 1 SCR

797 ; N. J. Sukhawani v. Union of India AIR 1996 SC

522 : [1995] 4 Suppl. SCR 778 – referred to.

7.1 There can be no doubt at all, that the right to a fair trial, encompassing fair procedure is guaranteed under Article 21 of the Constitution of India. It is too late in the day to contend otherwise. The safeguards provided in a statute, are always scrupulously to be adhered to, more so when the punishment is very severe. However, each case has to be decided taking into account all relevant factors, particularly, the evidence against the accused. [Para 51][770-B-C]

7.2 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. A crime under the NDPS Act is a crime against society and not just an individual or a group of individuals. While the safeguards in the NDPS Act must scrupulously be adhered to prevent injustice to an accused, the Court should be vigilant to ensure that guilty offenders do not go scot free by reason of over emphasis on technicalities. Substantial justice must be done. Every piece of evidence should be objectively scrutinized, evaluated and considered to arrive at a final decision. [Para 233][867-B-E]

7.3 Article 20(3) of the Constitution gives protection to a person: (i) accused of an offence (ii) against compulsion “to be a witness” and (iii) against himself. Compulsion is an essential ingredient of the bar of Article 20(3) of the Constitution. Article 20(3) does not bar the admission of a statement, confessional in effect, which is made without any inducement, threat or promise, even though it may have subsequently been retracted. The Article also does not debar the accused from voluntarily offering himself to be examined as a witness. The constitutional protection against compulsion to be a witness is available only to persons “accused of an offence”, and not persons other than the accused. It is a protection against compulsion to be a witness and it is a protection against compulsion resulting in giving evidence against himself. [Paras 234 and 235][867-E-G]

Balkishan A Devidayal vs State of Maharashtra (1980)

4 SCC 600 : [1981] 1 SCR 175 ; Nandini Satpathy v. P.L.Dani and Anr. (1978) 2 SCC 424 : [1978] 3 SCR

608 – relied on.

7.4 Compulsion may be in many forms. It may be physical or mental. However, mental compulsion takes place when the mind has been so conditioned by some extraneous process, as to render the making of the statement involuntary and therefore, extorted. Statements obtained by continuous and prolonged interrogation for hours at a stretch in unhealthy, unhygienic, uncomfortable and inconvenient conditions, without proper food, drinking water, washroom facilities etc. may not be accepted as voluntary. [Para 238][868-D-F]

State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 : [1962] SCR 10 ; Poolpandi and Ors. v.

Superintendent Central Excise and Ors. AIR 1992 SC 1795 : [1992] 3 SCR 247 – relied on.

7.5 The immunity under Article 20(3) does not extend to compulsory production of documents or material objects or to compulsion to give specimen writing, specimen signature, thumb impression, finger prints or blood samples. However, compulsion regarding documents attracts the bar of Article 20(3) if the documents convey personal knowledge of the accused relating to the charge. [Para 239][868-F-G]

Mohamed Dastagir v. State of Madras AIR 1960 SC

756 : [1960] SCR 116 ; State of Bombay v. Kathi Kalu Oghad 1961 SC 1808 ; Sampath Kumar v. Enforcement Office, Enforcement Directorate, Madras 1997 8 SCC

358 : [1997] 4 Suppl. SCR 142 – relied on.

7.6 There can be no doubt that any confession made under compulsion to any person whether or not a police officer would attract Article 20(3) of the Constitution. Any confession made under compulsion would also be hit by Section 24 of the Evidence Act. Confession under compulsion is no evidence in the eye of law. [Para 241][869-C-D]

7.7 A confessional statement, if not obtained by compulsion, as judicially explained, would be hit by Sections 25 and 26 only if such statement is made to a police officer (Section 25 of the Evidence Act) or while in the custody of a police officer and not in the presence of a Magistrate (Section 26 of the Evidence Act). Section 25 would only apply to a police officer or an officer who exercises all the powers of a police officer including the power of filing a police report under Section 173 of the Cr.PC. An officer under the NDPS Act does not have the power to file a police report under Section 173 of the Cr.P.C. [Para 242][869-D-F] Badku Joti Savant v. State of Mysore AIR 1966 SC 1746 : [1966] SCR 698 ; Romesh Chandra Mehta v. State of West Bengal AIR 1970 SC 940: [1969] SCR 461 – followed.

7.8 A confessional statement does not automatically result in the conviction of an accused offender. Such statements have to be tendered and proved in accordance with the law. The evidentiary value of the statement which is confessional in nature has to be weighed and assessed by the Court at the trial. [Para 243][869-F-G]

K. S. Puttaswamy and Anr. v. Union of India and Ors. (2017) 10 SCC 1 : [2017] 10 SCR 569 ; Maneka

Gandhi v. Union of India AIR 1978 SC 597 : [1978] 2 SCR 621 - referred to.

8.1 A Statute is an edict of the legislature and has to be construed according to “the intent of those that make it”. If a statutory provision is open to more than one interpretation, the Court has to choose that interpretation which represents the true intention of the legislature. It is to be presumed that in enacting a post constitutional law the legislative intent could not have been to violate any fundamental right. [Paras 244 and 245][870-A-B] Vishnu Pratap Sugar Works Pvt. Ltd. v. Chief Inspector of Stamp, U.P. AIR 1968 SC 102 : [1967] SCR 920 – relied on.

8.2 In ascertaining the intention of the legislature the Court is to examine two aspects, the meaning of the words and phrases used in the statute and the purpose and object or the reason and spirit pervading through the statute. Legislative intention, that is the true legal meaning of an enactment, is deduced by considering the meaning of the words used in the enactment, in the light of any discernible purposes or object of the enactment. When any question arises as to the meaning of any provision in a statute, it is proper to read that provision in the context of the intention of the legislature. The intention of the Legislature must be found by reading the statute as a whole. [Paras 246 and 247][870-C-E]

8.3 A statute or any statutory provision must be construed and interpreted in a manner that makes the statute effective and operative on the principle expressed in the maxim ut res magis valeat quam pereat and/or in other words, the principle that courts while pronouncing on the constitutionality of a statute starts with the presumption in favour of constitutionality and prefer a construction which keeps the statute within the competence of the legislature. [Para 248][870-E-F]

8.4 Thus when a statute is vague, the Court will give such an interpretation that keeps the statute in conformity with the fundamental rights. Similarly, if a statute is capable of two interpretations one of which violates the fundamental rights and the other of which protects the fundamental rights the court would opt for the latter. [Para 249][870-F-G]

8.5 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. If a provision is free from ambiguity or vagueness, and is clear, but violative of a fundamental right, the Court will have to strike the same down. Any omission in a statute cannot be filled in by Court as to do that would amount to the legislation and not construction. The Court cannot fill in casus omissus and language permitting Court should avoid creating casus omissus where there is none. In the interpretation of statute the Courts must always presume that legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. [Para 250][870-G-H; 871A-B]

9.1 There is no doubt that the NDPS Act contains severe penal provisions. There can also be no dispute with the proposition that when harsh provisions, lead to a severe sentence, a balance has to be struck between the need of the law and enforcement thereof on the one hand and the protection of a citizen from oppression and injustice. The requirements of Section

42 and 43 have to be complied with strictly and in letter and spirit. [Para 252][871-C-E]

Directorate of Revenue and Another v. Mohammed Nisar Holia (2008) 2 SCC 370 : [2007] 12 SCR 906 – relied on.

9.2 There can be no quarrel with the proposition that the power of search, seizure and arrest is founded upon the competent officer duly empowered having “reason to believe”, which might be based on personal knowledge, or secret information provided by an informant whose name need not be disclosed. [Para 253][871-E-F]

9.3 An inquiry/investigation under the NDPS Act does not culminate in any report. The inquiry is in the nature of a preliminary inquiry which may lead to the filing of a complaint in the Special Court. The Prosecution has to prove its case before the Special Court which would examine, analyze, assess and weigh the evidence on record. Suspicion can in no circumstances be a substitute for evidence. The severer the punishment for the offence, the stricter is the degree of proof. All the safeguards provided in the NDPS Act must be scrupulously followed. [Para 256][872-B-D]

State of Punjab v. Baldev Singh (1999) 6 SCC 172 : [1999] 3 SCR 977 ; Ritesh Chakaravarty v. State of Madhya Pradesh (2006) 12 SCC 321 : [2006] 6 Suppl. SCR 772 – relied on.

10.1 The proposition of law laid down by the Constitution Benches is that, the test to determine whether an officer is deemed to be a police officer within the meaning of Section 25 of the Evidence Act is, whether such officer has all the powers of a police officer including the power to file a report under Section

173 of the Cr.P.C. Therefore, the question of whether in reality or substance there is any difference between a complaint under Section 36A(1)(d) of the NDPS Act filed by an authorized officer of the Central Government or the State Government and a police report filed under Section 173 of the Cr.P.C, cannot be decided by this Bench of three-Judges in view of three five-Judge Constitution Bench judgments which are binding on this Bench. [Paras 263 and 264][873-D-F]

10.2 The question of whether an investigating officer invested with the powers of Officer in Charge of a police station for the purpose of investigation of an offence under a special Act like the NDPS Act is empowered to file a police report under Section 173 of the Cr.P.C cannot also be reopened by this Bench, in view of five-Judge Constitution Bench judgments. [Para 265][873-F-G]

10.3 A statute may expressly make Section 173 of the Cr.P.C applicable to inquiries and investigations under that statute. However, in the case of a statute like the NDPS Act, where the provisions of the Cr.P.C do not apply to any inquiry/investigation, except as provided therein, it cannot be held that the officer has all the powers of a police officer to file a report under Section 173 of the Cr.P.C. The NDPS Act does not even contain any provision for filing a report in a Court of law which is akin to a police report under Section 173 of the Cr.P.C. [Para 267][874-B-C]

10.4 As per the norms of judicial discipline and propriety, a Bench of lesser strength cannot revisit the proposition laid down by at least three Constitution Benches, that an officer can be deemed to be a police officer within the meaning of Section 25 of the Evidence Act only if the officer is empowered to exercise all the powers of a police officer including the power to file a report under Section 173 of the Cr.P.C. [Para 268][874-D-E]

10.5 Therefore, the provisions of the Cr.P.C do not apply to an inquiry/investigation under the NDPS Act except to the limited extent provided in Section 50(5) and 51. Section 173 of the Cr.P.C has not been made applicable to the NDPS Act. [Para 270][874-F-G]

11. The Judgment of this Court in *Raj Kumar Karwal case which has reaffirmed the verdict of three Constitution Benches does not require reconsideration. Nor does **Kanhaiyalal case require reconsideration. [Para 271][874-G-H]

*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 – relied on.

Noor Aga v. State of Punjab and Anr. (2008) 16 SCC

417 : [2008] 10 SCR 379 – referred to.