TOFAN SINGH versus STATE OF TAMIL NADU

TOFAN SINGH

STATE OF TAMIL NADU

(Criminal Appeal No. 152 of 2013 Etc.)

OCTOBER 29, 2020

[R. F. NARIMAN, NAVIN SINHA ANDINDIRA BANERJEE, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985:

ss. 42, 53 and 67 – Power under s. 67 – Extent, nature,Cpurpose and scope of – Confession made under – Before the officersdesignated u/ss. 42 or 53 – Whether admissible as substantiveevidence – Held: Statement recorded under s. 67 cannot be admittedas substantive evidence – To hold that such statement can be thebasis to convict person under the Act would be direct infringementDof the constitutional guarantees contained in Arts. 14, 20(3) and21 of the Constitution.

Evidence Act, 1872:

s.25 – Officers invested with powers u/s. 53 of NDPS Act –Are ‘Police Officers’ within the meaning of s. 25 – Therefore, anyconfessional statement made to such officers, would be barred u/s.25.

s.25 – ‘Police Officers’ – s. 25 – Held: Expression ‘PoliceOfficers’ in s.25 does not only mean police officer who belongs toState Police force, but includes officers who may belong to otherdepartments – Where limited powers of investigation are given toofficers for some purpose other than the prevention and detectionof crime, such persons cannot be said to be police officers – Wherea person, not police officer properly so called, if invested with allpowers of investigation, which culminates in filing of police report,such person can be called police officer.

Interpretation of statutes:

Marginal note – Is an important internal tool for indicatingthe meaning and purpose of Section in statute.

AWords and Phrases:

‘Enquiry’ – Meaning of

Expression ‘Custody’ – Meaning of – Distinction from theexpression ‘arrest’.B‘Police Officer’ – Meaning in the context of s. 25 of EvidenceAct.

Answering the Reference, the Court

PER R. F. NARIMAN, J (FOR HIMSELFAND NAVINSINHA, J.)C

HELD: 1.1. The Narcotic Drugs and PsychotropicSubstances Act, 1985 (NDPS Act) is to be construed in thebackdrop of Article 20(3) and Article 21 of the Constitution ofIndia. The fundamental rights contained in Articles 20(3) and 21are given pride of place in the Constitution. By the 44[th]DAmendment to the Constitution, it is now provided that even inan Emergency, these rights cannot be suspended – see Article359(1). The interpretation of statute like the NDPS Act mustbe in conformity and in tune with the spirit of the broadfundamental right not to incriminate oneself, and the right toprivacy. delicate balance is maintained between the power ofEthe State to maintain law and order, and the fundamental rightschapter which protects the liberty of the individual. Severalsafeguards are thus contained in the NDPS Act, which is of anextremely drastic and draconian nature. [Para 27][662-F-G]

1.2 Section 25 of Evidence Act, 1872 states that confessionFmade to any police officer, whatever his rank, cannot be reliedupon against person accused of any offence. “Police officer” isnot defined in the Evidence Act or in any cognate criminal statute.Section 25 is to be viewed in contrast to section 24, given thesituation in India of the use of torture and third-degree measures.GUnlike section 24, any confession made to police officer cannotbe used as evidence against person accused of an offence, thevoluntariness or otherwise of the confession being irrelevant – itis conclusively presumed by the legislature that all suchconfessions made to police officers are tainted with the vice ofcoercion. [Para 29][664-B-D]H

The ‘First Report of Her Majesty’s CommissionersAppointed to Consider the Reform of the JudicialEstablishments, Judicial Procedure and Laws of India& C.’ (1856) – referred to.

1.3 The interpretation of the term “accused” in section 25of the Evidence Act is materially different from that contained inArticle 20(3) of the Constitution. The scope of the section is notlimited by time – it is immaterial that the person was not anaccused at the time when the confessional statement was made.Thus, whereas formal accusation is necessary for invoking theprotection under Article 20(3), the same would be irrelevant forinvoking 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 protectionto confessional statements made by persons while “in thecustody” of police-officer, unless it be made in the immediatepresence of Magistrate. “Custody” is not synonymous with“arrest” – custody could refer to situation pre-arrest. In fact,section 46 of the CrPC speaks of “a submission to the custodyby word or action”, which would, inter alia, refer to voluntaryappearance before police officer without any formal arrest beingmade. [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 Indiaand 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 SCC263; State of U.P. v. Deoman Upadhyaya [1961] 1 SCR14; Agnoo Nagesia v. State of Bihar [1966] 1 SCR 134;State of Haryana and Ors. v. Dinesh Kumar (2008) 3SCC 222: [2008] 1 SCR 281 – relied on.

M.P. Sharma and Ors. v. Satish Chandra [1954] SCR1077 – stood overruled.

A2.1 The interplay between the CrPC and the provisions ofthe NDPS Act is contained in several provisions. CrPC has beenexpressly excluded when it comes to suspension, remission orcommutation in any sentence awarded under the NDPS Act – seeSection 32A. Equally, nothing contained in section 360 of theCrPC or in the Probation of Offenders Act, 1958 is to apply to aBperson convicted of an offence under the NDPS Act, subject tothe exceptions that such person is under 18 years of age, andthat that offence only be punishable under section 26 or 27 of theNDPS Act – see section 33. On the other hand, CrPC has beenmade expressly applicable by sections 34(2), 36B, 50(5) and 51Cof NDPS Act. Equally, CrPC has been applied with necessarymodifications under sections 36A(1)(b), 37(1)(b) and 53A of NDPSAct. Read with sections 4(2) and 5 of CrPC, the scheme of theNDPS Act seems to be that CrPC is generally followed, exceptwhere expressly excluded, or applied with modifications. [Paras37 and 38][668-A-C; D-F]D

2.2 Given the stringent nature of the NDPS Act, severalsections provide safeguards so as to provide balance betweeninvestigation and trial of offences under the Act, and thefundamental rights of the citizen. Several safeguards are containedin section 42. From this section it is clear that only when theEconcerned officer has “reason to believe” from personalknowledge or information given by any person and taken downin writing that an offence has been committed, that the concernedofficer may, only between sunrise and sunset, enter, search, seizedrugs and materials, and arrest any person who he believes has

Fcommitted any offence. By the first proviso, this can be doneonly by an officer not below the rank of sub-inspector. Undersub-section (2) in addition, where the information in writing isgiven, the officer involved must send copy thereof to hisimmediate official superior within seventy-two hours. It isimportant here to contrast “reason to believe” with theGexpression “reason to suspect”, which is contained in section 49of 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 extremelyimportant conditions under which search of persons shall beconducted. Section 52(1)-(3) contains three separate safeguards,insofar as disposal of persons arrested and articles seized areconcerned. Section 57 then speaks of person making an arrestor seizure having to make full report of all the particulars ofsuch arrest or seizure to his immediate official superior withinforty-eight hours. Equally, under section 57A, whenever anyofficer notified under section 53 makes an arrest or seizure underthe Act, the officer shall make report of the illegally acquiredproperties of such person to the jurisdictional competent authoritywithin ninety days of the arrest or seizure. Section 58 more thanany other provision, makes it clear that person’s privacy is notto be trifled with, because if it is, the officer who trifles with it ishimself punishable under the provision. Under section 63, whichcontains the procedure in making confiscations, the first provisoto sub-section (2) makes it clear that no order of confiscation ofan article or thing shall be made until the expiry of one monthfrom the date of seizure, or without hearing any person who mayclaim any right thereto and the evidence which he produces inrespect of his claim. [Paras 47, 52, 53 and 54][676-D-E; 685-G-H; 686-A-B, F-G]

State of Punjab v. Baldev Singh (1999) 6 SCC 172 :[1999] 3 Suppl. SCR 174 – followed.

Vijaysinh Chandubha Jadeja v. State of Gujarat (2011)1 SCC 609 : [2010] 13 SCR 255 – referred to.

2.4 The NDPS Act is predominantly penal statute. Giventhe stringent provisions of the NDPS Act, together with thesafeguards mentioned in the provisions, the statutes like theNDPS Act have to be construed bearing in mind the fact that theseverer the punishment, the greater the care taken to see thatthe 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.

ADirectorate of Revenue and Anr. v. Mohammed NisarHolia (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 indicatesthat it refers only to the power to “call for information, etc.” ABmarginal note is an important internal tool for indicating themeaning and purpose of section in statute, as it indicates the“drift” of the provision. [Para 59]]689-F]

K.P. Varghese v. Income Tax Officer, Ernakulam andAnr. (1981) 4 SCC 173 : [1982] 1 SCR 629 – reliedCon.

3.2 It is only an officer referred to in section 42 of NDPSAct who may use the powers given under section 67 in order tomake an “enquiry” in connection withthe contravention of anyprovision of this Act. The word “enquiry” has been used in sectionD67 to differentiate it from “inquiry” as used in section 53A, whichis during the course of investigation of offences. The notificationsissued 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 ofthe NDPS Act, which makes it clear that the powers to be exercisedEunder section 67 are to be exercised in conjunction with thepowers that are delineated in section 42(1). [Para 60][690-B-D]

Desh Bandhu Gupta & Co. v. Delhi Stock ExchangeAssn. Ltd. (1979) 4 SCC 565: [1979] 3 SCR 373 –referred to.F

3.3 The officer referred to in section 42 is given powers ofentry, search, seizure and arrest without warrant, with thesafeguards. The first safeguard is that such officer must have“reason to believe”, which is different from mere “reason tosuspect”. It is for this reason that such officer must make anGenquiry in connection with the contravention of the provisions ofthis Act, for otherwise, even without such enquiry, mere suspicionof the commission of an offence would be enough. It is in thisenquiry that he has to call for “information” under sub-clause(a), which “information” can be given by any person and takendown in writing, as is provided in section 42(1). Further, theinformation given must be for the purpose of “satisfying” himselfthat there has been contravention of the provisions of this Act,which again goes back to the expression “reason to believe” insection 42. Therefore, it cannot be said that “enquiry” in section67 is the same as “investigation”, which is referred to in section53. [Para 61][691-C-F]

3.4 By virtue of section 2(xxix) of the NDPS Act, thedefinition u/s. 2(h) becomes applicable to the use of the expression“investigation” in section 53 of the NDPS Act. It is an inclusivedefinition, by which, “evidence” is collected by police officer ora person authorised by the Magistrate. The “enquiry” that ismade by 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. Thisbecomes even clearer from section 52(3), whereunder everyperson arrested and article seized under sections 41 to 44 shallbe forwarded without unnecessary delay either to the officer-in-charge of the nearest police station, who must then proceed to“investigate” the case given to him, or to the officer empoweredunder section 53 of the NDPS Act, which officer then“investigates” the case in order to find out whether an offencehas been committed under the Act. It is clear, therefore, thatsection 67 is at an antecedent stage to the “investigation”, whichoccurs after the concerned officer under section 42 has “reasonto believe”, upon information gathered in an enquiry made inthat behalf, that an offence has been committed. [Paras 63 and64][692-C-G]

3.5 In section 67(c) of the NDPS Act, the expression usedis “examine” any person acquainted with the facts andcircumstances of the case. The “examination” of such person isagain only for the purpose of gathering information so as to satisfyhimself that there is “reason to believe” that an offence has beencommitted. This can, by no stretch of imagination, be equated toa “statement” under section 161 of the CrPC. [Para 65][692-G-H]

590SUPREME COURT REPORTS

[2020] 12 S.C.R.

ASahoo v. State of U.P. [1965] 3 SCR 86 – held notapplicable.

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 Articles20(3) and 21, as well as the scheme of the NDPS Act, togetherBwith the safeguards. First and foremost, police officer, properlyso-called, may be authorised to call for information etc. undersection 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 theCCrPC, together with all the safeguards mentioned therein – firstly,that the person examined shall be bound to answer truly allquestions relating to such case put to him, other than questionswhich would tend to incriminate him; secondly, the police officeris to reduce this statement into writing and maintain separate

Dand true record of this statement; thirdly, the statement mademay be recorded by audio-video electronic means to ensure itsgenuineness; and fourthly, statement made by woman canonly be made to woman police officer or any woman officer.Even after all these safeguards are met, no such statement canbe used at any inquiry or trial, except for the purpose ofEcontradicting such witness in cross-examination. [Para 66][693-B-E]

Tahsildar Singh v. State of U.P. [1959] Supp (2) SCR875 – followed.3.7 If confessional statement made under section 67 isFconsidered sufficient as substantive evidence to convict anaccused under the NDPS Act, section 53A would be renderedotiose. Sections 53 and 53A of the NDPS Act, when read together,would make it clear that section 53A is in the nature of anexception to sections 161, 162 and 172 of the CrPC. This is forGthe reason that section 53(1), when it invests certain officers orclasses of officers with the power of an officer in charge of policestation for investigation of offences under the NDPS Act, refersto Chapter XII of the CrPC, of which sections 161, 162 and 172are part. First and foremost, under section 162(1) of the CrPC,

statements that are made in the course of investigation are notrequired to be signed by the person making them – under section53A they can be signed by the person before an officer empoweredunder section 53. Secondly, it is only in two circumstances [undersection 53A(1)(a) and (b)] that such statement is made relevantfor the purpose of proving an offence against the accused: it isonly if the person who made the statement is dead, cannot befound, is incapable of giving evidence; or is kept out of the wayby the adverse party, or whose presence cannot be obtainedwithout delay or expense which the court considers unreasonable,that such statement becomes relevant. Otherwise, if the personwho made such statement is examined as witness, and thecourt thinks that in the interest of justice such statement shouldbe made relevant and does so, then again, such statement maybecome relevant. None of this would be necessary if confessionalstatement made under section 67 – not being bound by any ofthese 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) 2020SCC OnLine SC 700 – distinguished.

Mohan Lal v. State of Punjab (2018) 17 SCC 627:[2018] 9 SCR 1006; State v. V. Jayapaul (2004) 5 SCC223 – referred to.

3.8 An officer-in-charge of police station, when heinvestigates an offence, begins by gathering information, in thecourse of which he may collect evidence relating to thecommission of the offence, which would include search and seizureof things in the course of investigation, to be produced at thetrial. Under the scheme of the NDPS Act, it is possible that thesame officer who is authorised under section 42 is also authorisedunder section 53. The Notifications S.O. 822 (E) and S.O. 823(E) dated 14.11.1985 issued by Ministry of Finance (Departmentof Revenue) indicate that officers of and above the rank ofInspector in the Departments of Central Excise, Customs,

ARevenue Intelligence, Central Economic Intelligence Bureau andNarcotics Control Bureau were authorised to act under bothsections 42 and 53. These notifications dated 14.11.1985 weresuperseded by Notifications S.O. 3901 (E) and S.O. 3899 (E)issued by the Ministry of Finance (Department of Revenue) on30.10.2019. Even the new Notifications dated 30.10.2019 indicateBthat the powers under sections 42 and 53 of the NDPS Act areinvested in officers of and above the rank of inspectors in theCentral Board of Indirect Taxes and Customs, Central Bureauof Narcotics, Directorate of Revenue Intelligence, CentralEconomic Intelligence Bureau and of and above the rank of JuniorCIntelligence Officer in Narcotics Control Bureau. [Paras 78, 80and 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 toDofficers primarily or predominantly for some purpose other thanthe prevention and detection of crime, such persons cannot besaid to be police officers under section 25 of the Evidence Act. A“police officer” does not have to be police officer in the narrowsense of being person who is police officer so designatedEattached to police station. Where person who is not policeofficer properly so-called is invested with all powers ofinvestigation, which culminates in the filing of police report,such officers can be said to be police officers within the meaningof section 25 of the Evidence Act, as when they prevent and detectcrime, they are in position to extort confessions, and thus areFable to achieve their object through shortcut method ofextracting involuntary confessions. [Para 126][732-E-H]

4.2 There is distinction between the investigative powersof officers who are designated in statutes primarily meant forrevenue or railway purposes, as against officers who areGdesignated under section 53 of the NDPS Act: first, that section53 is located in statute which contains provisions for theprevention, detection and punishment of crimes of very seriousnature. Even if the NDPS Act is to be construed as statutewhich regulates and exercises control over narcotic drugs and

psychotropic substances, the prevention, detection andpunishment of crimes related thereto cannot be said to be ancillaryto such object, but is the single most important and effectivemeans of achieving such object. This is unlike the revenue statuteswhere the main object was the due realisation of customs dutiesand the consequent ancillary checking of smuggling of goods (asin the Land Customs Act, 1924, the Sea Customs Act, 1878 andthe 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 andsecurity of Railway property. Second, unlike the revenue statutesand the Railway Act, all the offences to be investigated by theofficers under the NDPS Act are cognizable. Third, that section53 of the NDPS Act, unlike the aforesaid statutes, does notprescribe any limitation upon the powers of the officer toinvestigate an offence under the Act, and therefore, it is clearthat all the investigative powers vested in an officer in charge ofa police station under the CrPC – including the power to file acharge-sheet – are vested in these officers when dealing with anoffence under the NDPS Act. This is wholly distinct from thelimited powers vested in officers under the aforementionedrevenue and railway statutes for ancillary purposes, which werein aid of the dominant object of the statutes in question, notprimarily concerned with the prevention and detection of crime,unlike the NDPS Act. Also, importantly, none of those statutesrecognised the power of the State police force to investigateoffences under those Acts together with the officers mentionedin those Acts, as is the case in the NDPS Act. No question ofmanifest arbitrariness or discrimination on the application ofArticle 14 of the Constitution of India would therefore arise inthose cases, unlike cases which arise under the NDPS Act. [Para132][736-G-H; 737-A-D; F-G]

4.3 When sections 53 and 53A are seen together in thecontext of statute which deals with prevention and detection ofcrimes of very serious nature, it becomes clear that thesesections cannot be construed in the same manner as sectionscontained in revenue statutes and railway protection statutes.[Para 133][737-H; 738-A]

A4.4 It is clear that the designated officer under section 53,invested with the powers of an officer in charge of police station,is to forward police report stating the particulars that arementioned in section 173(2) CrPC. Because of the specialprovision contained in section 36A(1) of the NDPS Act, this policereport is not forwarded to Magistrate, but only to SpecialBCourt under section 36A(1)(d). The non obstante clause containedin section 36A(1) makes it clear that the drill of section 36A ofNDPS Act is to be followed notwithstanding anything containedin 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 andCtherefore, any complaint that has to be made can only be madeunder section 36A(1)(d) of NDPS Act to Special Court, and notto Magistrate under section 190 CrPC [Para 137][741-B-E]4.5. It cannot be said that the procedure under section 190Cr. P.C. has been replaced only in part, the police report andDcomplaint procedure under section 190 not being displaced bysection 36A(1)(d). Section 36A(1)(d) specifies scheme which iscompletely different from that contained in the CrPC. Whereasunder section 190 of the CrPC it is the Magistrate who takescognizance of an offence, under section 36A(1)(d) it is only aSpecial Court that takes cognizance of an offence under the NDPSEAct. Secondly, the “complaint” referred to in section 36A(1)(d)is not 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 insection 36A(1)(d) of the NDPS Act – the Special Court cannot,

Fupon information received from any person other than policeofficer, or upon its own knowledge, take cognizance of an offenceunder the NDPS Act. Further, Special Court under section 36Ais deemed to be Court of Session, for the applicability of theCrPC, under section 36C of the NDPS Act. Court of Sessionunder section 193 of the CrPC cannot take cognizance as CourtGof original jurisdiction unless the case has been committed to itby Magistrate. However, under section 36A(1)(d) of the NDPSAct, Special Court may take cognizance of an offence under theNDPS Act without the accused being committed to it for trial. It

is obvious, therefore, that in view of section 36A(1)(d), nothingcontained in section 190 of the CrPC can be said to apply to aSpecial Court taking cognizance of an offence under the NDPSAct. [Para 137][741-E-H; 742-A-B]

4.6. Also, the officer designated under section 53 by theCentral Government or State Government to investigate offencesunder the NDPS Act, need not be the same as the officerauthorised by the Central Government or State Governmentunder section 36A(1)(d) to make complaint before the SpecialCourt. As matter of fact, if the Central Government is to investan officer with the power of an officer in charge of police stationunder sub-section (1) of section 53, it can only do so afterconsultation with the State Government, which requirement isconspicuous by its absence when the Central Governmentauthorises an officer under section 36A(1)(d). Also, both section53(1) and (2) refer to officers who belong to particular departmentsof Government. Section 36A(1)(d) does not restrict the officerthat can be appointed for the purpose of making complaint toonly an officer belonging to department of the Central/StateGovernment. There can also be situation where officers havebeen designated under section 53 by the Government, but notso designated under section 36A(1)(d). It cannot be that in theabsence of the designation of an officer under section 36A(1)(d),the culmination of an investigation by designated officer undersection 53 ends up by being an exercise in futility. [Para 138][742-C-F]

4.7 Section 59 of the NDPS Act is an important pointer towhen cognizance of an offence can take place onlyon complaint,and not by way of police report. By section 59(3), both in thecase of an offence under section 59(1) [which is punishable for aterm which may extend to one year] or in the case of an offenceunder section 59(2) [which is punishable for term which shallnot be less than 10 years, but which may extend to 20 years], noCourt shall take cognizance of any offence under section 59(1) or(2), except on complaint in writing made with the previoussanction of the Central Government, or, as the case may be, theState Government. Thus, under section 59, in either case i.e. in acase where the trial takes place by Magistrate for an offence

Aunder section 59(1), or by the Special Court for an offence undersection 59(2), cognizance cannot be taken either by theMagistrate or the Special Court, except on complaint in writing.This provision is in terms markedly different from section36A(1)(d), which provides two separate procedures for takingcognizance of offences made out under the NDPS Act. [ParaB143][744-E-H]

4.8 It cannot be said that the “complaint” referred to insection 36A(1)(d) refers only to section 59 of the NDPS Act. Acomplaint can be made by designated officer qua offences whicharise under the NDPS Act – it is not circumscribed by provisionCwhich requires previous sanction for an offence committed undersection 58, as that would do violence to the plain language ofsection 36A(1)(d). It is always open, therefore, to the designatedofficer, designated this time for the purpose of filing complaintunder section 36A(1)(d), to do so before the Special Court, whichDis separate procedure provided for under the special statute, inaddition to the procedure to be followed under section 53. [Para144][745-B-D]

4.9 It cannot be said that the power contained in section53(1) is only truncated power to investigate which does notEculminate in police report being filed because Section 53 doesnot use the expression “deemed”. The officer who is designatedunder section 53 can, by legal fiction, be deemed to be an officerin charge of police station, or can be given the powers of anofficer in charge of police station to investigate the offencesunder the NDPS Act. Whether he is deemed as an officer in chargeFof police station, or given such powers, are only different sidesof the same coin – the aforesaid officer is not, in eithercircumstance, police officer who belongs to the police force ofthe State. To concede that deeming fiction would give full powersof investigation, including the filing of final report, to theGdesignated officer, as against the powers of an officer in charge ofa police station being given to designated officer having onlylimited powers to investigate, does not stand to reason, and wouldbe contrary to the express language and intendment of section53(1). [Para 145][745-D-G]

4.10 When it is clear that the expression “police officers”does not only mean police officer who belongs to the State policeforce, but includes officers who may belong to other departments,such as the Department of Excise who are otherwise investedwith all powers of investigation so as to attract the provisions ofsection 25 of the Evidence Act, it is not correct to say that policeofficers or policemen who belong to the police force arerecognised in the NDPS Act as being separate and distinct fromthe officers of the Department of Narcotics, etc. If the distinctionbetween police officer as narrowly defined and the officers of theNarcotics Control Bureau is something that is to be stressed,then any interpretation which would whittle down the fundamentalrights of an accused based solely on the designation of particularofficer, would fall foul of Article 14, as the classification betweenthe two types of officers would have no rational relation to theobject sought to be achieved by the statute in question, which isthe prevention and detection of crime. [Para 146][745-G-H; 746-A-C]4.11 Section 32 of POTA and section 15 of TADA areexceptions to section 25 of the Evidence Act in terms, unlike theprovisions of the NDPS Act. Both these Acts, vide section 32 andsection 15 respectively, have non-obstante clauses by which theEvidence Act has to give way to the provisions of these Acts.Pertinently, confessional statements made before police officersunder the provisions of the POTA and TADA are made“admissible” in the trial of such person. This is distinct from theevidentiary value of statements made under the NDPS Act, wheresection 53A states that, in the circumstances mentioned therein,statements made by person before any officer empowered undersection 53 shall merely be “relevant” for the purpose of provingthe 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 corroboratingevidence, be the basis for the conviction of an accused. Also,when confessional statements are used under the TADA andPOTA, they are used with several safeguards which are containedin these sections themselves. Additional safeguards/guidelineswere issued by the Court in *kartar Singh case in respect of TADA

Acases to ensure that the confession obtained in the course ofinvestigation by police officer “is not tainted with any vice butis in strict conformity with the well-recognised and acceptedaesthetic principles and fundamental fairness”. Insofar as POTAis concerned, procedural safeguards while recording confessionshave been discussed in ** Navjot Sandhu case. Thus, to arrive atBthe conclusion that confessional statement made before anofficer designated under section 42 or section 53 can be the basisto convict person under the NDPS Act, without any non obstanteclause doing away with section 25 of the Evidence Act, and withoutany safeguards, would be direct infringement of the constitutionalCguarantees contained in Articles 14, 20(3) and 21 of theConstitution of India. [Paras 149 and 150 - 152][749-A-E; 750F-G; 753-G-H; 754-A]

*Kartar Singh v. State of Punjab (1994) 3 SCC 569:[1994] 2 SCR 375; Noor Aga v. State of Punjab (2008)D16 SCC 417: [2008] 10 SCR 379; Nirmal Singh Pehlwanv. Inspector, Customs (2011) 12 SCC 298: [2011] 9 SCR446 – relied on.

**State (NCT of Delhi) v. Navjot Sandhu (2005) 11SCC 600: [2005] 2 Suppl. SCR 79 – referred to.

E5. Thus, the officers who are invested with powers undersection 53 of the NDPS Act are “police officers” within themeaning of section 25 of the Evidence Act, as result of whichany confessional statement made to them would be barred underthe provisions of section 25 of the Evidence Act, and cannot betaken into account in order to convict an accused under the NDPSFAct. statement recorded under section 67 of the NDPS Actcannot be used as confessional statement in the trial of anoffence under the NDPS Act. [Para 155][754-C-F]

Raj Kumar Karwal v. Union of India (1990) 2 SCCG409: [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; RajaRam Jaiswal v. State of Bihar [1964] 2 SCR 752; BadkuJoti 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. Devidayalv. State of Maharashtra (1980) 4 SCC 600: [1981] 1SCR 175; State of Gujarat v. Anirudhsing and Anr.(1997) 6 SCC 514: [1997] 2 Suppl. SCR 234; VinubhaiHaribhai 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 clearthat it essentially makes provisions, as are deemed necessary,for preventing and combating the abuse of and illicit trade andtrafficking in narcotic drugs and psychotropic substances. [Para43][766-B]

1.2 However, despite an elaborate statutory framework, theNDPS Act is not being effectively implemented. Illicit businessin and consumption of narcotic drugs and psychotropic substancesis endangering the social and economic stability of India and thedeveloping countries, adversely affecting the health of the people,causing malnutrition related ailments, causing spurt in crimesand increase in the spread of communicable diseases such asAIDS (Acquired Immuno Deficiency Syndrome), caused bysharing of needles for administration of narcotic drugs. The lureof money, vulnerability of adolescents, poverty and other facetsof socio-economic deprivations aggravate this menace andprovide sustenance to the racketeers involved in this flourishingillicit business. [Paras 47 and 48][768-A-D]

1.3 Socio-economic crimes i.e. “white collar crimes” affectthe health and material welfare of the community as whole, asagainst that of an individual victim, and are, by and large,

Acommitted not by disadvantaged low class people, but by veryaffluent and immensely powerful people, who often exploit theless advantaged, to execute their nefarious designs. Such crimeshave to be dealt with firmly and cannot be equated with othercrimes, committed by individual offenders against individualvictims. [Para 50][769-G-H; 770-A]B

Article “Narcotic Aggression and Operation CounterAttack” by the Mainstream dated March 7, 1992; TheLaw Commission of India, in its 155[th] Report on NarcoticDrugs and Psychotropic Substances Act, 1985– referred to.C

2.1 It is well settled principle of criminal jurisprudencethat an accused is presumed innocent, unless proved guiltybeyond reasonable doubt, except where the statute, on existenceof certain circumstances, casts reverse burden on the accused,to dispel the presumption of guilt, as in the case of Section 304BDof the Penal Code and many other statutes, particularly thosedealing with socio economic offences. The Legislature may, inpublic interest, create an offence of strict liability where mensrea is not necessary. There are presumptive provision in theNDPS Act, such as Sections 35, 54 and 66. Under Section 54 ofEthe NDPS Act presumption of commission of an offence may, interalia, be drawn from the possession of any narcotic drug orpsychotropic substance, or any apparatus for manufacture orpreparation thereof. The presumption is rebuttable. [Para52][770-C-E]F2.2. The punishments prescribed for many of the offencesunder the NDPS Act are very severe. When statute has drasticpenal provisions, the authorities investigating the crime undersuch law, have greater duty of care, and the investigation mustnot only be thorough, but also of very high standard. [Para53][770-F; 771-B]G

2.3 There are inbuilt safeguards in the NDPS Act to protecta person accused of an offence under the said Act, fromunnecessary harassment, or malicious or wrongful prosecution.Section 58 provides for punishment of any person, authorizedunder Section 42 or 43 or 44 for vexatious entry, search, seizure,Hor arrest. [Para 54][771-C-D]

2.4 The condition precedent for exercise of power underSections 41(2), 42(1), 43 or 44 is “reason to believe” and notjust reason to “suspect” that the circumstances specified in theaforesaid provisions for action thereunder exist. The use of thewords “reason to believe” in Sections 41, 42, 43 and 48 is incontradistinction with use of the phrase “Reason to Suspect”, inSection 49 of the NDPS Act. [Para 59][773-D-E]

A. S. Krishnan and Ors. v. State of Kerala (2004) 11SCC 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 complete code. The NDPS Actspecifically makes some provisions of the Cr.P.C applicable toproceedings under the NDPS Act. The Act is very specific onwhich of the provisions of the Cr.P.C. are to apply to proceedingsunder the NDPS Act. [Para 68][775-G-H]

2.6 Section 5 specifically provides that nothing in the Cr.P.Cshall, in the absence of specific provision to the contrary, affectany special law in force or any special jurisdiction or powerconferred by any other law. The NDPS Act being specialenactment, nothing in the Cr.P.C can affect any investigation orinquiry under the NDPS Act, in the absence of any provision tothe contrary in the NDPS Act. [Para 73][779-D-E]

2.7 Section 2(xxix) of the NDPS Act does not make theprovisions of the Cr.P.C. applicable to any investigation or enquiryunder the NDPS Act. The said Section only provides that wordsand expressions used in the NDPS Act, and not defined, butdefined 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 StateGovernment, by notification in the Official Gazette, to invest anyofficer of the Departments mentioned in the said Section, or anyother Department of the Government, with the powers of anOfficer in Charge of Police Station for the investigation ofoffences under the said Act. If the provisions of the Cr.P.C were

Ato apply to investigations under the NDPS Act, it would not havebeen necessary to invest any officer under the NDPS Act withthe powers of an Officer in Charge of Police Station, for thepurpose of investigation of an offence under the NDPS Act, bynotification in the Official Gazette. The provisions of Section 50(5)and 51 of the NDPS Act would also not have been necessary.B[Paras 76 and 77][780-B-D]

2.9 There does not appear to be any bar in Section 53 oranywhere else in the NDPS Act, to officers empowered underSections 41(2) or 42, also being invested under Section 53, withthe powers of an Officer in Charge of Police Station forCinvestigation of offences under Section 53 of the NDPS Act. [Para78][780-E]

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

2.11 Section 53A of the NDPS Act is ex facie contradictoryto Section 162 of the Cr.P.C, which provides that no statementmade to police officer, in course of an investigation underEChapter XII of the Cr.P.C shall, if reduced to writing, be signedby the person making it, or used for any purpose at any inquiry ortrial in respect of the offences under investigation, except interalia to confront him if he gives evidence as witness. Section53A covers any statement made and signed by any person, beforeFany officer empowered under Section 53 for the investigation ofoffences, during the course of any proceedings by such officer,under the NDPS Act, be it an inquiry or investigation. Thisprovision makes it abundantly clear that the principles embodiedin Sections 161/162 of the Cr.P.C have no application to any inquiryor other proceeding under the NDPS Act, which would includeGan 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 ofBihar (2002) 1 SCC 351 : [2001] 4 Suppl. SCR 25– held inapplicable.

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

2.13 The Evidence Act would however apply to trial underthe NDPS Act in other respects, unless contrary intentionappears from any specific provision of the NDPS Act. Theprevious statement of witness, even if admissible in evidencecannot be used against the witness unless the witness isconfronted with the previous statement and given an opportunityto explain. However, certain documents not otherwise admissibleunder the Evidence Act, unless proved by evidence, may beadmissible under Section 52A(4) of the NDPS Act, subject to thefulfilment of the conditions of that section. [Para 86][782-G; 783-A]

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” inSection 53 and “inquiry” in Section 67 cannot be construed tomean the same. When different words are used in the samestatute, there is presumption that they are not used in the samesense. construction deriving support from differing phraseologyin different sections of statute, may be negatived if it leads tounreasonable or irrational results. Accordingly Section 53A refersto statement before any officer empowered under Section 53for the investigation of offences during the course of any inquiryor proceeding by such officer. [Paras 90 - 93][784-G-H; 785-C-E]

T.A. Krishnaswamy v. State of Madras AIR 1966 SC1022 : [1966] SCR 31 – relied on.

[2020] 12 S.C.R.

AKanhaiyalal Vishindas Gidwani v. Arun DattatreyaMehta (2001) 1 SCC 78 – referred to.

2.15 The NDPS Act does not define the expression“investigation” or the expression “inquiry”. However, Section2(xxix) of the NDPS Act provides that the words and expressionsBused in the Act and not defined but defined in the Code of CriminalProcedure, 1973 have the meanings respectively assigned to themin 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 and95][785-E-F]

C2.16 The meaning of word or expression used in statutecan be construed and understood as per its definition, unless the“context otherwise requires”. The definition of inquiry in Section2(g) of the Cr.P.C. does not help to interpret the word inquiry inSection 67 of the NDPS Act or in any other provision of ChapterV thereof, since an inquiry under Chapter V of the NDPS Act isDnot by any Magistrate or Court. It is well settled that word notspecifically defined in statute may be interpreted as per itsordinary meaning, which may be ascertained by reference to adictionary. As per the Concise Oxford English Dictionary(Eleventh Edition) the word investigate means ‘carry out aEsystematic or formal enquiry into an incident or allegation as toestablish the truth’. Investigation, is the act of investigating. Theword “enquire” is, as per the same dictionary, to ask forinformation. It also means “investigate”. Enquiry is the act ofasking for information. It is an official investigation. Words andphrases in statute have to be construed in the context in whichFthey have been used. The statute has to be read as whole.[Paras 96 and 97][786-A-D]

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

G2.17 Having regard to the meaning of the expressionsinvestigate/investigation and enquire/enquiry given in the OxfordDictionary, 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 generic expression,which could include the investigation of an offence. An inquiryas contemplated in Section 67 is the collection of informationgenerally, to find out if there has been any contravention of theNDPS Act, whereas investigation is the probing of an offenceunder the NDPS Act and collection of materials to find out thetruth of the case sought to be made out against an accusedoffender. However investigation may follow an enquiry or be partof an enquiry. This is evident from reading of the NDPS Act asa whole. [Para 100][787-B-D]

2.18 An officer empowered under Section 53 with thepowers of an Officer in Charge of Police Station for theinvestigation of an offence, also has the power to make an inquiry.This is clear from the language used in Section 53A(1) of theNDPS Act. The officer empowered under Section 53, with thepower of an Officer in Charge of Police Station, can obviouslymake an inquiry within the meaning of Section 67 to find outwhether there has been any contravention of the NDPS Act. Astatement made before such an officer in course of any inquiry orother proceeding, which is taken down in writing and signed bythe person making it, may in certain circumstances, be relevantfor the purpose of proving, in any prosecution for an offence underthe NDPS Act, the truth of the facts it contains. [Para 102][787-F-H; 788-A]

2.19 The power of an officer to investigate is not derivedfrom Section 53. It is an enabling provision, which empowers theCentral/State Government to invest an officer with the powers ofan Officer in Charge of Police Station, for the purpose ofinvestigation of an offence under the NDPS Act. The power toinvest an officer with the powers of an Officer in Charge of aPolice Station flows from Section 53. The authority to investigateinto an offence is implicit in the wider power to make an inquiryin connection with the contravention of any provision of the NDPSAct. [Para 103][788-B-C]

2.20 An enquiry may be carried out by an officer referredto in Section 42 of the NDPS Act, if empowered in this behalf.

AThis is clear from Section 67. The same officer can also investigatean offence under the NDPS Act, if he is also invested under Section53, with the powers of an Officer in Charge of Police Station, forthe purpose of investigation of an offence under the NDPS Act.The power of an authorized officer referred to in Section 42, tomake an inquiry is not derived from Section 67. Section 67Bempowers an authorized officer, referred to in Section 42, to dothe following acts during the course of an enquiry: “(a) call forinformation from any person for the purpose of satisfying himselfwhether there has been any contravention of the provisions ofthis Act or any rule or order made thereunder; (b) require anyCperson to produce or deliver any document or thing useful orrelevant to the enquiry; (c) examine any person acquainted withthe facts and circumstances of the case.” [Paras 104-106][788-D-E; F-H]

2.21 Investigation of an offence under the NDPS Act, is aDpart of an inquiry under Chapter V of the said Act. Investigationof an offence under the NDPS Act can be carried out by the sameofficer empowered under Section 42, who triggered theproceedings under Chapter V of the NDPS Act and carried outsearch, seizure and/or arrest, if that officer is also invested underSection 53 of the NDPS Act, with the powers of an Officer inECharge of Police Station, for the purpose of investigation. [Para107][789-A-B]

Mukesh Singh v. State (Narcotic Branch of Delhi) (2020)SCC Online SC 700 – followed.F2.22 The language and tenor of Section 67 or Sections 41/42 does not support the contention that an inquiry can only bemade by an officer referred to in Section 42, who is dulyauthorized, before exercise of the powers of entry, search, seizureor arrest, or at the stage of entry, search, seizure and arrest, butnot afterwards. The exercise of power under Sections 41/42 ofGthe NDPS Act does not necessarily have to be preceded by aninquiry. If an inquiry were to be restricted to the stage prior tothe exercise of the power of entry, search, seizure and arrest orto the stage of making an entry, search, seizure or arrest, theNDPS Act would have specifically provided so. There is no suchHprovision, either express or implied. It is not permissible to read

into Sections 41, 42 etc the words “after an inquiry” which do notexist in those provisions. Nor is it permissible to read the words“before or at the time of entry, search, seizure or arrest” afterthe words “during the course of any enquiry” in Section 67. [Para110][789-G-H; 790-A-C]

2.23 The power conferred by Section 67 on an officerreferred to in Section 42, duly authorised by the Central/StateGovernment in this behalf, to call for information, requireproduction of any document or thing or to examine any person,etc. is exercisable in course of any inquiry. The power could beexercised at any stage of the enquiry, before complaint is filed.The powers can be exercised prior to or after exercise of powersunder Sections 41/42 and would include the stage of investigationof an offence by an officer referred to in Section 42, if he is alsoinvested with powers under Section 50 of the NDPS Act. [Para111][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 ofdocuments and things and to examine persons from Section 67of the NDPS Act. The powers of investigation of an Officer inCharge of Police Station include such powers. An officer investedwith powers under Section 53 can also make an enquiry. This isclear from the use of the words “A statement made and signed bya person before any officer empowered under Section 53 for theinvestigation of offences, during the course of any inquiry orproceedings by such officer, shall be relevant...” in Section 53A(1).The benefit of Section 53A(1) would not be available in the caseof similar statement made before an officer empowered underSection 42, but not under Section 53 of the NDPS Act. [Para112][790-E-G]

2.25 If, after an inquiry or investigation, complaint is filed,and the Special Court takes cognizance of the offence, anystatements, documents or other things obtained in the inquiry/investigation may be tendered and proved by the prosecution inthe trial against the offender unless the statement and/ordocument and/or thing has been obtained by any promise,inducement, coercion, threat, or intimidation. The question of

Awhether any statement has been obtained by promise, coercion,threat etc. and/or whether any particular officer, is authorizedunder Section 42 or invested with powers under Section 53 arematters of trial. The Prosecution has to establish the chargesagainst the offender, in accordance with law, at the trial. [Para113][790-G-H; 791-A]B

2.26 The provisions of the Cr.P.C. only apply to all warrantsissued and searches and seizures made under the NDPS Act, inso far as they are not inconsistent with the provisions of the NDPSAct, as provided in Section 51 of the NDPS Act and to the searchof person, without complying with the requirement to take theCperson to be searched, to the nearest Gazetted Officer orMagistrate, as provided in Section 50(5) of the NDPS Act. Ofcourse, the principles of Section 163 of the Cr.P.C. are implicit inthe provisions of the NDPS Act relating to inquiry andinvestigation though the said Section may not apply to such inquiryDor investigation. This is because the bar of Article 20(3) of theConstitution of India has to be read into every statute in spiritand substance. There can be no question of obtaining anystatement by any inducement, promise or threat. [Para 117][800-H; 801-A-B]

E2.27 The NDPS Act is complete code. comparison ofthe various provisions of Chapter XII of the Cr.P.C with those ofChapter V of the NDPS Act also makes it clear that the provisionsin Chapter V of the NDPS Act are independent of, and notcontrolled by the provisions of the Cr.P.C except as provided inSections 50(5) and 51 of the NDPS Act. There are differencesFbetween the procedure of inquiry/investigation under Chapter Vof the NDPS Act and the procedure of investigation and/or enquiryunder the Cr.P.C. [Para 118][801-C-D]

2.28 Section 36A(1)(d) of the NDPS Act provides that “aSpecial Court may, upon perusal of police report of the factsGconstituting an offence under the NDPS Act or upon complaintmade by an officer of the Central Government or StateGovernment authorised in his behalf, take cognizance of thatoffence, without the accused being committed to it for trial”.Section 36A (1)(d) is similar to Section 190 of the Cr.P.C. AH

complaint, as defined in Section 2(d) of the Cr.P.C., means anyallegation made to Magistrate orally or in writing, to enable theMagistrate to take action under the Cr.P.C. complaint neednot be on Police Report. However, as per the Explanation toSection 2(d), report of police officer, which discloses acognizable offence is to be deemed to be complaint and thepolice officer who made the complaint, shall be deemed to be thecomplainant. [Paras 120 and 121][803-A-D]

2.29 Section 36A(1)(d) enables the police to file report,before the Special Court, of facts constituting an offence underthe NDPS Act, which, as per the definition of police report inSection 2(d) of the Cr.P.C., means report forwarded underSection 173(2) of the Cr.P.C. Such police report is deemed tobe complaint. Such police report can be filed after aninvestigation under Chapter XII of the Cr.P.C. There is noprovision in the NDPS Act, which makes it incumbent upon theconcerned officers who make any inquiry/investigation under theNDPS Act, to prepare or file any report. [Para 124][803-F-H]

2.30 If the police investigate any offence under the NDPSAct and submit report before the Special Court, all the relevantprovisions of the Cr.P.C. would have to be complied with,including in particular Sections 161, 162, 163, 164 and 173. Astatement before the police can neither be signed nor relied uponfor any purpose in Court of law, except for the purpose specifiedin the said section, that is, inter alia to confront the person makingthe statement in cross examination in the trial. [Para 125][804-A-B]2.31 The Legislature has in its wisdom differentiatedbetween police report, which is deemed to be complaint, anda complaint made by an officer of the Central or State Government,authorized in this behalf. It is not for this Court to question thewisdom of the Legislature. The fact that the Special Court maytake cognizance of an offence, upon complaint made by an officerof the Central or State Government, authorized in this behalf,and not report, as required in case of the police, also showsthat an inquiry or investigation under the NDPS Act is not to betreated in the same way, as police investigation into an offence.[Para 126][804-C-D]

A2.32 The expression “police” is ordinarily understood tomean that executive civil force of the State, entrusted with theduty of maintenance of public order, and also the prevention anddetection 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,Benacted to make the police an effective instrument for theprevention and detection of crime. [Paras 128 and 129][804-F-H]

2.33 The police officers have enormous powers. The powersof police officer are far greater than those of an officer underCthe NDPS Act invested with the powers of an Officer in Chargeof Police Station for the limited purpose of investigation of anoffence under the NDPS Act. The extensive powers of the police,of investigation of all kinds of offences, powers to maintain lawand order, remove obstruction and even arrest without warrant

Don mere suspicion, give room to police officers to harass personaccused or even suspected of committing an offence in myriadof ways. The police are, therefore, in dominating position to beable to elicit statements by intimidation, by coercion, or by threatseither direct or veiled. The powers of NDPS officers beingrestricted to prevention and detection of crimes under the NDPSEAct and no other crime, they do not have the kind of scope thatthe 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 inquiryor investigation or other proceeding under the NDPS Act, exceptFto the extent expressly provided by the NDPS Act, in view ofSection 4(2) read with Section 5 of the Cr.P.C. [Para 140][809-A-

2.35 Officers under the NDPS Act, invested under Section53 with the powers of an Officer in Charge of Police Station, forGthe purpose of investigation of an offence under the NDPS Act,do not exercise all the powers of police officers. They do nothave the power to file police report under Section 173 Cr.P.Cwhich might be deemed complaint. There is no provision inthe NDPS Act which requires any officer investigating an offenceH

under the said Act or otherwise making an inquiry under the saidAct to file 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 anystatement made before any officer under the NDPS Act, in thecourse 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 thusoverrides Section 162 of the Cr.P.C. While Section 162(1) of theCr.P.C. provides that no statement made by any person to policeofficer, when reduced to writing shall be signed by the personmaking it, or used for any purpose, save as provided in the provisoto the said section, that is, to confront the person making thestatement, if he gives evidence as witness, Section 53A(1)provides that “a statement made and signed by person beforeany officer empowered under Section 53 for the investigation ofoffences, during the course of any inquiry or proceedings by suchofficer, shall be relevant for the purpose of proving, in anyprosecution for an offence under this Act” in certain circumstancesspecified in the said section. [Para 145][809-G-H; 810-A-B]2.38 The statements made in any inquiry or investigationmay be recorded in writing and even signed by the person makingit. In the absence of any provision similar to Section 162, in theNDPS Act, statement made before an officer under the NDPSAct in the course of any inquiry, investigation or otherproceedings, may be tendered in evidence and proved in trialfor prosecution of an offence under the NDPS Act in accordancewith law. statement confessional in nature is in the genre ofextra judicial confessions. [Para 146][810-B-C]

3.1 confession made by an accused person is irrelevantin criminal proceeding, if it appears to the Court that theconfessions may have been elicited by any inducement, threat orpromise from person in authority and sufficient, in the opinionof the Court, to give the accused person reasonable grounds, forsupposing that by making the confession, he would gain anyadvantage or avoid any disadvantage in respect of proceedingsagainst him. [Para 148][810-F-G]

612SUPREME COURT REPORTS

AState of Rajasthan v. Raja Ram (2003) 8 SCC 180:[2003] 2 Suppl. SCR 445; Gura Singh v. State ofRajasthan (2001) 2 SCC 205 : [2000] 5 Suppl. SCR408 – referred to.

3.2 It is one thing to say that piece of evidence isBinadmissible and another thing to assess two or more pieces ofevidence on their probative value. confession before JudicialMagistrate under Section 164 of the Cr.PC may have higherprobative value than other confessions. However, on thatparameter alone other confessions for example, extra judicialconfession cannot be rendered inadmissible in law. [ParaC151][813-D-E]

3.3 Whether the officer concerned is duly empowered and/or authorised to make an enquiry/investigation, whether anystatement or document has improperly been procured, etc. arefactors which would have to be examined by the Court on caseDto case basis. Having regard to all relevant facts andcircumstances, the Court may not base conviction solely on astatement made in an inquiry which is confessional, in the absenceof other materials with which the statement can be linked. It isfor the Special Court to weigh the statement and assess itsEevidentiary value, having regard to all relevant factors. Allstatements and documents tendered in evidence have to beproved at the trial in accordance with law. [Para 153][813-F-H;814-A]

3.4 The officers under the NDPS Act are drawn fromFdifferent Government Departments and are not necessarily policeofficers as such. The NDPS Act also specifically differentiatespolice officers from other officers entrusted with powers underthe 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. [Para175][826-A-B]G

3.5 The NDPS Act may loosely have been described as apenal statute in some judgments of this Court in the sense thatthe NDPS Act contains stringent penal provisions includingpunishment of imprisonment of twenty years and even deathsentence in certain exceptional cases of offence repeated afterHearlier conviction. [Para 183][827-G-H]

Badku Joti Savant v. State of Mysore AIR 1966 SC1746:[1966] SCR 698; Romesh Chandra Mehta v. Stateof West Bengal AIR 1970 SC 940: [1969] SCR 461;Illias v. Collector of Customs, Madras AIR 1970 SC1065: [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 ADevidayal vs State of Maharashtra (1980) 4 SCC 600: [1981] 1 SCR 175 ; Raj Kumar Karwal v. Union ofIndia 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 ; NanooSheikh Ahmed and Another v. Emperor AIR 1927 Bom4 ; Radha Kishun Marwari v. King-Emperor AIR 1932Patna 293 ; Raja Ram Jaiswal v. State of Bihar AIR1964 SC 828 : [1964] SCR 752 ; Abdul Rashid v. Stateof Bihar (2001) 9 SCC 578 – referred to.

4.1 Constitution Benches are constituted to resolve aconstitutional issue, harmonize conflicting views and settle thelaw. Constitution Bench decision might only be reconsideredby Constitution Bench of larger strength and that too inexceptional and compelling circumstances. An interpretationwhich has held the field for over fifty years should not be upsetfor the asking. Change in the legal position which has held thefield through judicial precedents over length of time can onlybe considered when such change is absolutely imperative. [Para185][828-C-D]

‘Constitutional Supremacy – Revisit’ by V. SudhishPai - referred to.

4.2 The dominant object of the NDPS Act is to control andregulate operations relating to narcotic drugs and psychotropic

Asubstances, to provide for forfeiture of property derived from orused in illicit traffic in narcotic drugs and psychotropic substances,to implement the provisions of the International Convention onDrugs and Psychotropic Substances, and for matters connectedtherewith. On the other hand, the dominant object of penalstatute is to provide for punishment of range of intentional actsBand omissions of different types, enumerated in the statute. ThePenal Code is typical penal statute. Statutes like the Preventionof Corruption Act 1988 and the Protection of Children from SexualOffences Act 2012, which mainly provide for punishment ofspecific offences are also penal statutes. [Paras 186 and 187][828-CE-G]5. Penal statutes enacted to deal with social evil shouldliberally be construed to give effect to the object for which thestatute has been enacted. [Para 188][828-G-H]

Rajindere Singh v. State of Punjab (2015) 6 SCC 477:D[2015] 2 SCR 835; M. Narayanan Nambiar v. State ofKerala 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 ; BalramEKumawat 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.

FSeaford Court Estates Ltd. v. Asher (1949) 2 ALL ER155 (CA) – referred to.

6.1 It cannot, however, be said that the NDPS Act, being apenal statute, in contradistinction to the Customs Act and theCentral Excise Act, whose dominant object is to protect theGrevenue of the State, judicial interpretation of powers ofinvestigation under those Acts, which are almost identical to thepowers of investigation of an officer under the NDPS Act, wouldnot be relevant to investigation under the NDPS Act. [Para193][832-D-F]

6.2 It is true that an enquiry under the Central Excise Act,1944 or the Customs Act 1962 is judicial proceeding within themeaning of Sections 193 and 198 of the Penal Code, by virtue ofSection 14(4) of the Central Excise Act and Section 108(4) of theCustoms Act, which are identical provisions and read “Every suchinquiry as aforesaid shall be deemed to be judicial proceedingwithin the meaning of Section 193 and Section 228 of the IndianPenal Code (Act 45 of 1860)” Section 40(4) of FERA and Section9(4) of the Railway Property (Unlawful Possession Act) 1966 arealso 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 theCentral Excise Act, the Customs Act, the FERA, the RailwayProperty (unlawful possession) Act or any other similar enactmentis triable by the Court of competent jurisdiction. Investigationinto offences under these Acts termed as inquiry, are held bydepartmental officials duly authorized to enable the concernedauthorities to decide whether complaint should be filed beforethe Competent Court. If the information gathered and/or materialsobtained so warrant, complaint is filed. [Paras 211 and 212][859-E-G]

6.4 An inquiry under the Central Excise Act by any CentralExcise Officer, empowered by the Central Government, or underthe Customs Act, by any officer of customs empowered by generalor special order of the Principal Commissioner/Commissioner ofCustoms or under the FERA by an Enforcement Officer or underthe Railway Property (Unlawful Possession) Act 1961 by an officerof the Railway Protection Force is not the same as proceedingin Court of Law or Tribunal. Such an inquiry is preliminary totrial by Court of competent jurisdiction. It is akin to an enquiryconducted by public servant under any other law with penalprovisions including an enquiry under the NDPS Act. [Para213][859-G-H; 860-A]

6.5 Investigation under these Acts have been given thestatus of judicial proceedings within the meaning of Sections 193and 228 of the IPC, unlike investigation of an offence under theNDPS Act. The only difference is that the person making

Astatement in an investigation under any of these Acts, is burdenedwith the consequences of giving false evidence in any other judicialproceedings including proceedings in Court of Law, punishablewith imprisonment which may extend to three years and alsofine [Section 193 IPC] or of intentional insult or interruption to apublic servant at any stage of “judicial proceeding” punishableBwith imprisonment which might extend to six months or with fineor 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 RailwayProperty (Unlawful Possession) Act has been given the status ofCjudicial proceedings to deter persons from making falsestatements or otherwise intentionally hampering theinvestigation, the Legislature has deemed it appropriate to usethe expression “shall have power to summon any person whosepresence he considers necessary either to give evidence or toDproduce document”. [Para 215][860-D-E]6.7 The so called ‘evidence’ in the inquiry is not the sameas evidence in trial. Documents would still have to be tenderedand proved at the time of trial. Whether any documents and/orstatements obtained in course of investigation would at all beEadmissible in evidence at the trial and if so, the extent to whichthey would be relevant, would be decided by the Court trying theoffence, having regard to the applicable law. [Para 216][860-F-G]

6.8 It is true that an Inquiry or investigation under the NDPSAct is not judicial proceeding, just as an Inquiry or investigationFby the police under the Cr.P.C. is not judicial proceeding.However, casual observation in judgment of this Court, that“a police officer never acts judicially” in the context of an analysisof the reasons for inclusion of Section 25 of the Evidence Act,under which no confession to police officer is to be proved asagainst person accused of any offence, cannot be construed toGlay down the proposition of law, that confessional statementmade to an officer in course of an enquiry before that officer cannotbe tendered or proved in evidence, if the enquiry is not judicialproceeding. Nor can such an observation be construed as

reverse proposition that all confessions in an enquiry before anofficer, who is not police officer, but deemed to be police officerfor all purposes, with all the powers of police officer includingthe power akin to Section 173(2) of the Cr.P.C, can be tenderedand proved in evidence, only because the enquiry is judicialproceeding within the meaning of Section 193 or 228 of the IPC,in the sense that person intentionally giving false evidence insuch proceeding, or intentionally insulting or causing interruptionto person holding such an enquiry is punishable withimprisonment. [Para 217][860-H; 861-A-D]

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

6.10 It is difficult to appreciate how the fact that an inquiryunder the Central Excise Act or the Customs Act or the FERAor any other Act which might be deemed to be judicialproceeding to attract the penal provisions of Sections 193 and228 of IPC, should make any difference to the admissibility inevidence, of the statements made in an enquiry under the NDPSAct. [Para 222][862-B-C]

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

6.12 Section 25 of the Evidence Act does not differentiatebetween evidence in trial for non cognizable offence andevidence in trial for cognizable offence. The admissibility ofevidence does not depend on whether an offence is ‘cognizable’

Aor non-cognizable’. The mere fact that an offence was cognizable,enabling the police to arrest without warrant, should not makeany difference to the admissibility or the probative value of theevidence adduced by the prosecution during the trial of theoffence. [Para 224][862-F-G]

B6.13 Some of the offences under the Central Excise Actand the Customs Act are also cognizable. It may also be pertinentto point out that while all offences under the NDPS Act includingthose 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 madeCnon cognizable. [Para 225][862-G-H; 863-A]

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

Union of India v. Padam Narain Aggarwal and Ors.E(2008) 13 SCC 305 : [2008] 14 SCR 179 ; K. I.Pavunny v. Assistant Collector (H.Q.) Central ExciseCollectorate, Cochin (1997) 3 SCC 721 : [1997] 1 SCR797 ; N. J. Sukhawani v. Union of India AIR 1996 SC522 : [1995] 4 Suppl. SCR 778 – referred to.F7.1 There can be no doubt at all, that the right to fair trial,encompassing fair procedure is guaranteed under Article 21 ofthe Constitution of India. It is too late in the day to contendotherwise. The safeguards provided in statute, are alwaysscrupulously to be adhered to, more so when the punishment isGvery severe. However, each case has to be decided taking intoaccount all relevant factors, particularly, the evidence against theaccused. [Para 51][770-B-C]

7.2 While the right to fair trial by an impartial Court and/or Tribunal is human right under the UDHR and an essential

concomitant of the fundamental rights, at the same time, thefairness of trial has to be seen not only from the point of view ofthe accused, but also from the point of view of the victim and thesociety. crime under the NDPS Act is crime against societyand not just an individual or group of individuals. While thesafeguards in the NDPS Act must scrupulously be adhered toprevent injustice to an accused, the Court should be vigilant toensure that guilty offenders do not go scot free by reason of overemphasis on technicalities. Substantial justice must be done.Every piece of evidence should be objectively scrutinized,evaluated and considered to arrive at final decision. [Para233][867-B-E]

7.3 Article 20(3) of the Constitution gives protection to aperson: (i) accused of an offence (ii) against compulsion “to be awitness” and (iii) against himself. Compulsion is an essentialingredient of the bar of Article 20(3) of the Constitution. Article20(3) does not bar the admission of statement, confessional ineffect, which is made without any inducement, threat or promise,even though it may have subsequently been retracted. The Articlealso does not debar the accused from voluntarily offering himselfto be examined as witness. The constitutional protection againstcompulsion to be witness is available only to persons “accusedof an offence”, and not persons other than the accused. It is aprotection against compulsion to be witness and it is protectionagainst compulsion resulting in giving evidence against himself.[Paras 234 and 235][867-E-G]

Balkishan 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 SCR608 – relied on.

7.4 Compulsion may be in many forms. It may be physicalor mental. However, mental compulsion takes place when themind has been so conditioned by some extraneous process, as torender the making of the statement involuntary and therefore,extorted. Statements obtained by continuous and prolongedinterrogation for hours at stretch in unhealthy, unhygienic,uncomfortable and inconvenient conditions, without proper food,

Adrinking water, washroom facilities etc. may not be accepted asvoluntary. [Para 238][868-D-F]

State of Bombay v. Kathi Kalu Oghad AIR 1961 SC1808 : [1962] SCR 10 ; Poolpandi and Ors. v.Superintendent Central Excise and Ors. AIR 1992 SCB1795 : [1992] 3 SCR 247 – relied on.

7.5 The immunity under Article 20(3) does not extend tocompulsory production of documents or material objects or tocompulsion to give specimen writing, specimen signature, thumbimpression, finger prints or blood samples. However, compulsionCregarding documents attracts the bar of Article 20(3) if thedocuments convey personal knowledge of the accused relatingto the charge. [Para 239][868-F-G]

Mohamed Dastagir v. State of Madras AIR 1960 SC756 : [1960] SCR 116 ; State of Bombay v. Kathi KaluDOghad 1961 SC 1808 ; Sampath Kumar v. EnforcementOffice, Enforcement Directorate, Madras 1997 8 SCC358 : [1997] 4 Suppl. SCR 142 – relied on.

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

7.7 confessional statement, if not obtained by compulsion,Fas judicially explained, would be hit by Sections 25 and 26 only ifsuch statement is made to police officer (Section 25 of theEvidence Act) or while in the custody of police officer and notin the presence of Magistrate (Section 26 of the EvidenceAct). Section 25 would only apply to police officer or an officerwho exercises all the powers of police officer including the powerGof filing police report under Section 173 of the Cr.PC. An officerunder the NDPS Act does not have the power to file policereport 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 ofWest Bengal AIR 1970 SC 940: [1969] SCR 461 –followed.

7.8 confessional statement does not automatically resultin the conviction of an accused offender. Such statements haveto be tendered and proved in accordance with the law. Theevidentiary value of the statement which is confessional in naturehas to be weighed and assessed by the Court at the trial. [Para243][869-F-G]

K. S. Puttaswamy and Anr. v. Union of India and Ors.(2017) 10 SCC 1 : [2017] 10 SCR 569 ; ManekaGandhi v. Union of India AIR 1978 SC 597 : [1978] 2SCR 621 - referred to.

8.1 Statute is an edict of the legislature and has to beconstrued according to “the intent of those that make it”. If astatutory provision is open to more than one interpretation, theCourt has to choose that interpretation which represents the trueintention of the legislature. It is to be presumed that in enactinga post constitutional law the legislative intent could not have beento violate any fundamental right. [Paras 244 and 245][870-A-B]

Vishnu Pratap Sugar Works Pvt. Ltd. v. Chief Inspectorof Stamp, U.P. AIR 1968 SC 102 : [1967] SCR 920 –relied on.

8.2 In ascertaining the intention of the legislature the Courtis to examine two aspects, the meaning of the words and phrasesused in the statute and the purpose and object or the reason andspirit pervading through the statute. Legislative intention, thatis the true legal meaning of an enactment, is deduced byconsidering the meaning of the words used in the enactment, inthe light of any discernible purposes or object of the enactment.When any question arises as to the meaning of any provision in astatute, it is proper to read that provision in the context of theintention of the legislature. The intention of the Legislature mustbe found by reading the statute as whole. [Paras 246 and247][870-C-E]

A8.3 statute or any statutory provision must be construedand interpreted in manner that makes the statute effective andoperative on the principle expressed in the maxim ut res magisvaleat quam pereat and/or in other words, the principle that courtswhile pronouncing on the constitutionality of statute starts withthe presumption in favour of constitutionality and prefer aBconstruction which keeps the statute within the competence ofthe legislature. [Para 248][870-E-F]

8.4 Thus when statute is vague, the Court will give suchan interpretation that keeps the statute in conformity with thefundamental rights. Similarly, if statute is capable of twoCinterpretations one of which violates the fundamental rights andthe other of which protects the fundamental rights the court wouldopt for the latter. [Para 249][870-F-G]

8.5 When statutory provision is clear and there is noambiguity, this Court cannot alter that provision by itsDinterpretation. To do so, would be to legislate, which this Courtis not competent to do. If provision is free from ambiguity orvagueness, and is clear, but violative of fundamental right, theCourt will have to strike the same down. Any omission in statutecannot be filled in by Court as to do that would amount to theElegislation and not construction. The Court cannot fill in casusomissus and language permitting Court should avoid creating casusomissus where there is none. In the interpretation of statute theCourts must always presume that legislature inserted every partthereof for purpose and the legislative intention is that everypart of the statute should have effect. [Para 250][870-G-H; 871-FA-B]

9.1 There is no doubt that the NDPS Act contains severepenal provisions. There can also be no dispute with theproposition that when harsh provisions, lead to severe sentence,a balance has to be struck between the need of the law andGenforcement thereof on the one hand and the protection of acitizen from oppression and injustice. The requirements of Section42 and 43 have to be complied with strictly and in letter and spirit.[Para 252][871-C-E]

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

9.2 There can be no quarrel with the proposition that thepower of search, seizure and arrest is founded upon the competentofficer duly empowered having “reason to believe”, which mightbe based on personal knowledge, or secret information providedby an informant whose name need not be disclosed. [Para253][871-E-F]

9.3 An inquiry/investigation under the NDPS Act does notculminate in any report. The inquiry is in the nature of apreliminary inquiry which may lead to the filing of complaint inthe Special Court. The Prosecution has to prove its case beforethe Special Court which would examine, analyze, assess and weighthe evidence on record. Suspicion can in no circumstances be asubstitute for evidence. The severer the punishment for theoffence, the stricter is the degree of proof. All the safeguardsprovided in the NDPS Act must be scrupulously followed. [Para256][872-B-D]

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

10.1 The proposition of law laid down by the ConstitutionBenches is that, the test to determine whether an officer isdeemed to be police officer within the meaning of Section 25 ofthe Evidence Act is, whether such officer has all the powers of apolice officer including the power to file report under Section173 of the Cr.P.C. Therefore, the question of whether in realityor substance there is any difference between complaint underSection 36A(1)(d) of the NDPS Act filed by an authorized officerof the Central Government or the State Government and policereport filed under Section 173 of the Cr.P.C, cannot be decidedby this Bench of three-Judges in view of three five-JudgeConstitution Bench judgments which are binding on this Bench.[Paras 263 and 264][873-D-F]

A10.2 The question of whether an investigating officerinvested with the powers of Officer in Charge of police stationfor the purpose of investigation of an offence under special Actlike the NDPS Act is empowered to file police report underSection 173 of the Cr.P.C cannot also be reopened by this Bench,in view of five-Judge Constitution Bench judgments. [ParaB265][873-F-G]

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

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

10.5 Therefore, the provisions of the Cr.P.C do not applyto an inquiry/investigation under the NDPS Act except to thelimited extent provided in Section 50(5) and 51. Section 173 ofFthe Cr.P.C has not been made applicable to the NDPS Act. [Para270][874-F-G]

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

*Raj Kumar Karwal v. Union of India (1990) 2 SCC409 : [1990] 2 SCR 63 ; **Kanhaiyalal v. Union ofIndia (2008) 4 SCC 668 : [2008] 1 SCR 350 – reliedon.

Noor Aga v. State of Punjab and Anr. (2008) 16 SCC417 : [2008] 10 SCR 379 – referred to.

Case Law Reference

In the judgment of R.F. Nariman, J.

626SUPREME COURT REPORTS

[2020] 12 S.C.R.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 152 of 2013.

CFrom the Judgment and Order dated 18.06.2012 of the High Courtof Judicature at Madras in Criminal Appeal No. 8 of 2010.

With

Criminal Appeal Nos. 1750 of 2009, 2214 of 2009, 827 of 2010,835 of 2011, 836 of 2011, 344 of 2013, 1826 of 2013, 433 of 2014, 77 ofD2015, 90 of 2017, 91 of 2017, Special Leave Petition (Crl.) 6338 of 2015& 1202 of 2017 .

Aman Lekhi, ASG, Saurabh Mishra, AAG, Sushil Kumar Jain,Anand Grover, S. Nagamuthu, A. K. Srivastava, R. Balasubramanian,Sr. Advs., Puneet Jain, Ms. Christi Jain, Harsh Jain, Harshit Khanduja,EMs. Pratibha Jain, Mrs. Kanchan Kaur Dhodi, Uday Gupta, Ms. ShivaniM. Lal, Hiren Dasan, M. K. Tripathi, Chand Qureshi, MohanPandey,Sanjay Jain, Vinay Arora, Mrs. K. Sarada Devi, Ranjan Kumar,Nachiketa Joshi, Ms. Sucheta Joshi, Ms. Himadri Haksar, Abhishek Singh,Shreshth Arya, Amit Bhalla, Satbir Singh Pillania, Tripati Tandon, SandivFKalia, Somvir Deswal, Ms. Reena Rao, Arun Kumar Singh, Nand Ram,Dr. Sushil Balwada, Prabu Ramasubramanian, Raghunatha Sethupathy,Karuppaiah Meyyappan, Hardik Gautam, K. Paari Vendhan, Kuldip Singh,Shreeyash, Ms. Jaspreet Gogia, Aniruddha P. Mayee, Ms. RanjanaNarayan, Harish Pandey, Akshay Amritanshu, Ritwiz Ribhav, B. KrishnaPrasad, Mrs. Anil Katiyar, Vibhu Shankar Mishra, Ms. Suhashini Sen,GB. V. Balaram Das, Manish Vashishtha, Ms. Liz Mathew, C. K. Sasi,Saurabh Kirpal, Sanjay Agarwal, Ashish Batra, Amit K. Nain, ArjunGarg, Shrutika Garg, John Mathew, Vinod Kumar, Advs. for the appearingparties.

The Judgments of the Court were delivered by

R. F. NARIMAN, J.*

1. These Appeals and Special Leave Petitions arise by virtue of areference order of Division Bench of this Court reported as TofanSingh v. State of Tamil Nadu (2013) 16 SCC 31. The facts in thatappeal have been set out in that judgment in some detail, and need not berepeated by us. After hearing arguments from both sides, the Courtrecorded that the Appellant in Criminal Appeal No.152 of 2013 hadchallenged his conviction primarily on three grounds, as follows:

“24.1. The conviction is based solely on the purported confessionalstatement recorded under Section 67 of the NDPS Act which has noevidentiary value inasmuch as:

(a) The statement was given to and recorded by an officer who isto be treated as “police officer” and is thus, hit by Section 25 ofthe Evidence Act.

(b) No such confessional statement could be recorded underSection 67 of the NDPS Act. This provision empowers to call forinformation and not to record such confessional statements. Thus,the statement recorded under this provision is akin to the statementunder Section 161 CrPC.

(c) In any case, the said statement having been retracted, it couldnot have been the basis of conviction and could be used only tocorroborate other evidence.”

2. Under the caption “Evidentiary value of statement under section67 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (“NDPSAct”)”, the Court noted the decisions of Raj Kumar Karwal v. Unionof India (1990) 2 SCC 409 and Kanhaiyalal v. Union of India (2008)4 SCC 668, as also certain other judgments, most notably Abdul Rashidv. State of Bihar (2001) 9 SCC 578 and Noor Aga v. State of Punjab(2008) 16 SCC 417, and thereafter came to the conclusion that the NDPSAct, being penal statute, is in contradistinction to the Customs Act,1962 and the Central Excise Act, 1944, whose dominant object is toprotect the revenue of the State, and that therefore, judgments renderedin the context of those Acts may not be apposite when considering theNDPS Act– see paragraph 33. After then considering number of other

*Ed. Note : Judgment delivered by R. F. Nariman, J. (for himself and Navin Sinha, J.)

Ajudgments, the referral order states that re-look into the ratio of RajKumar Karwal (supra) and Kanhaiyalal (supra)would be necessary,and has referred the matter to larger Bench thus:

“41. For the aforesaid reasons, we are of the view that the matterneeds to be referred to larger Bench for reconsideration of theBissue as to whether the officer investigating the matter under theNDPS Act would qualify as police officer or not.

42. In this context, the other related issue viz. whether thestatement recorded by the investigating officer under Section 67of the Act can be treated as confessional statement or not, even ifCthe officer is not treated as police officer also needs to be referredto the larger Bench, inasmuch as it is intermixed with facet ofthe 1st issue as to whether such statement is to be treated asstatement under Section 161 of the Code or it partakes thecharacter of statement under Section 164 of the Code.

43. As far as this second related issue is concerned we wouldDalso like to point out that Mr Jain argued that the provisions ofSection 67 of the Act cannot be interpreted in the manner in whichthe provisions of Section 108 of the Customs Act or Section 14 ofthe Excise Act had been interpreted by number of judgmentsand there is qualitative difference between the two sets ofEprovisions. Insofar as Section 108 of the Customs Act is concerned,it gives power to the custom officer to summon persons “to giveevidence” and produce documents. Identical power is conferredupon the Central Excise Officer under Section 14 of the Act.However, the wording to Section 67 of the NDPS Act is altogetherFdifferent. This difference has been pointed out by the AndhraPradesh High Court in Shahid Khan v. Director of RevenueIntelligence [2001 Cri LJ 3183 (AP)].”

3. Shri Sushil Kumar Jain, learned Senior Advocate appearing forthe Appellants in Criminal Appeal Nos. 152 of 2013; 836 of 2011; 433 ofG2014; 77 of 2015 and 1202 of 2017, outlined six issues before us, whichreally boil down to two issues, namely:

“1. Whether an officer “empowered under Section 42 of the NDPSAct” and/or “the officer empowered under Section 53 of the NDPSAct” are “Police Officers” and therefore statements recorded bysuch officers would be hit by Section 25 of the Evidence Act; andH

2. What is the extent, nature, purpose and scope of the powerconferred under Section 67 of the NDPS Act available to andexercisable by an officer under section 42 thereof, and whetherpower under Section 67 is power to record confession capableof being used as substantive evidence to convict an accused?”

4. Shri Jain took us through the provisions of the NDPS Act which,according to him, is special Act, and complete code on the subject itcovers. He referred to how the NDPS Act sometimes overrides theCode of Criminal Procedure, 1973 (“CrPC”); sometimes says that it isapplicable; and sometimes states that it is made applicable with necessarymodifications. According to Shri Jain, section 41(2) and section 42 of theNDPS Act refer to ‘First Information Report’ being lodged by theofficers referred to therein. As the source of information is required tobe kept secret under section 68 of the NDPS Act, the officer receivinginformation under these provisions is therefore treated as an informant.The tasks assigned to officers under section 42 of the NDPS Act arefour in number, namely, entry, search, seizure or arrest. As opposed tothis, section 53 of the NDPS Act invests the designated officers with allthe powers of an ‘officer-in-charge of police station’ for the processof investigation, which would then begin after information collected by asection 42 officer is handed over to the officer designated under section53, and end with final report being submitted under section 173 of theCrPC to the Special Court under section 36A(1)(d) of the NDPS Act.According to the learned Senior Advocate, section 67 is to be read onlywith section 42, and is power to call for information so that the “reasonto believe” mentioned in section 42 can then be made out, withoutproceeding further under the NDPS Act. Thus, “reason to believe”, whichis at higher threshold than “reason to suspect” – which phrase hasbeen used in section 49 of the NDPS Act –is condition precedent tothe officer thereafter moving forward. Shri Jain argued that the reasonto believe must be formed before the officer acts, and that therefore,section 67 operates at stage antecedent to the exercise of the powersof the officer designated under section 42. He then went on to arguethat these provisions must be construed strictly in favour of the subject,inasmuch as they impinge upon the fundamental right to privacy, recentlyrecognised by this Court in K.S. Puttaswamy and Anr. v. Union ofIndia and Ors. (2017) 10 SCC 1. He also argued that the NDPS Acttherefore incorporates legislative balance between powers of

Ainvestigation and the obligation to uphold privacy rights of the individual.He then went on to argue that the “information” under section 67 of theNDPS Act cannot be equated with “evidence”, which is only evidencebefore court, as per the definition of “evidence” under the IndianEvidence Act, 1872 (“Evidence Act”). He cited judgments to showthat even witness statements made under section 164 of the CrPC areBnot substantive evidence. He then contrasted section 67 of the NDPSAct with the power of officers under revenue acts to record evidence,such as section 108 of the Customs Act 1962, and section 14 of theCentral Excise Act 1944. He then went on to state that as none of thesafeguards contained in sections 161-164 of the CrPC are contained inCthe NDPS Act when the person is examined under section 67, obviouslystatements made to officers under section 67 cannot amount to substantiveevidence on the basis of which conviction can then take place. Animportant argument was that it would be highly incongruous if an officerof the police department, empowered under section 42 and exercisingthe same powers under section 67, records confessional statementDwhich would be hit by section 25 of the Evidence Act, whereas officersexercising the same powers under the NDPS Act, who are not regularpolicemen, would be able to record confessional statements, and bypassall constitutional and statutory safeguards. Shri Jain contended that asthe provisions of the NDPS Act are extremely stringent, they must beEstrictly construed, and safeguards provided must be scrupulously followed.According to him, arbitrary power conferred under section 67 upon anofficer above the rank of peon, sepoy or constable, but denied to seniorofficer under section 53, would be ex facie contrary to Article 14 of theConstitution. On the other hand, section 53 statutorily confers powerson the named officer of an officer-in-charge of police station for theFinvestigation of the offences under the NDPS Act. This, according tothe learned counsel, would contain the entire gamut of powers containedin sections 160-173 of the CrPC, including the power to then file acharge-sheet before the Special Court under section 36A(1)(d) of theNDPS Act. The learned counsel argued that section 53A of the NDPSGAct shows that confessional statements that are made under section161 of the CrPC, which are otherwise hit by section 162 of the CrPC,are made relevant only in the two contingencies mentioned under section53A of the NDPS Act, being exceptions to the general rule stated insection 162 of the CrPC. He contended, therefore, that section 67 of theNDPS Act cannot be used to bypass section 53A therein and render itHotiose. He stressed the fact that all offences under the NDPS Act arecognizable offences, unlike under revenue statutes like the Customs Act,1962 and Central Excise Act, 1944, and then argued that the “complaint”that is referred to in section 36A(1)(d) of the NDPS Act has onlyreference to complaint filed under section 59(3) therein. He also pointedout the anomalies of granting to the concerned officer under section 53all the powers of the officer-in-charge of police station, which, unlessit ends up in the form of final report, would leave things hanging. Thus,if the concerned officer finds that there is no sufficient evidence, andthat the accused should be released, section 169 of the CrPC wouldapply. In the absence of section 169 of the CrPC, as has been contendedby the other side, there is no procedure for discharge of the accused ifevidence against him is found to be wanting. In without-prejudiceargument that complaints under the NDPS Act can be made outside ofsection 59(3), Shri Jainstressed the fact that there is in reality andsubstance no difference between the “complaint” under the NDPS Actand the charge-sheet under the CrPC, as investigation has already beencarried out even before the complaint under the NDPS Act is made. Hetherefore argued that both Raj Kumar Karwal (supra) and Kanhaiyalal(supra) require to be overruled by us, as they erroneously applied earlierjudgments which concerned themselves with revenue statutes, and notpenal statutes like the NDPS Act. He then referred us to Article 20(3)of the Constitution, and section 25 of the Evidence Act, and cited aplethora of case law to drive home the point that in this country, ascoercive methods are used against persons during the course ofinvestigation, all confessions made to police officer, whether madeduring the course of investigation or even before, cannot be relied uponas evidence in trial. He then referred to several judgments of thisCourt to state that the expression “police officer” is not defined, and thefunctional test therefore must apply, namely, that person who is giventhe same functions as police officer under the CrPC, particularly in thecourse of investigating an offence under the Act, must be regarded as apolice officer for the purpose of section 25 of the Evidence Act. In thecourse of his submissions, he referred to number of judgments of thisCourt, and most particularly, the judgments of State of Punjab v. BarkatRam (1962) 3 SCR 338; Raja Ram Jaiswal v. State of Bihar (1964) 2SCR 752; Badku Joti Savant v. State of Mysore (1966) 3 SCR 698;Romesh Chandra Mehta v. State of West Bengal (1969) 2 SCR461; Illias v. Collector of Customs, Madras (1969) 2 SCR 613; and

ABalkishan A. Devidayal v. State of Maharashtra (1980) 4 SCC 600.He also provided useful chart of the difference in the provisionscontained in the NDPS Act and the Railway Property (UnlawfulPossession) Act, 1966, the Sea Customs Act, 1878, the Central ExciseAct, 1944, and the Customs Act, 1962.B5. Shri Puneet Jain supplemented these arguments with referenceto recent judgment of Constitution Bench of this Court in MukeshSingh v. State (Narcotic Branch of Delhi) 2020 SCC OnLine SC700, and stated that as some discordant notes are to be found in thatjudgment, it may be referred to larger Bench. In any case, he arguedthat the comments made in that judgment about investigation startingCfrom the section 42 stage itself were only in the context of the complainantand the investigator being the same, in which case, if prejudice wascaused, the trial may be vitiated in terms of the judgment.6. Shri Anand Grover, learned Senior Advocate, appearing for theAppellant in Criminal Appeal No. 90 of 2017, followed in the wake ofDthe two Jains, père et fils. The learned Senior Advocate stressed thevarious provisions of the NDPS Act which showed that it was extremelystringent, in that it had minimum sentences for even possession of whatis regarded as “commercial quantity” of drug or psychotropicsubstance, being minimum sentence of rigorous imprisonment of 10Eyears, going up to 20 years.This, coupled with various presumptions raisedagainst the accused, and stringent bail conditions, all made the NDPSAct very stringent measure of legislation, which, the more stringent itis, must contain necessary safeguards against arbitrary search, seizureand arrest, or else it would fall foul of the fundamental rights chapter ofthe Constitution. He argued that the NDPS Act was penal in nature,Fandcontained regulatory provisions as well, but given the fact that weare concerned only with the penal provisions, could be distinguished fromthe revenue statutes whose dominant object is the collection of revenue,and not the punishment of crime. He stressed the fact that the “enquiry”under section 67 of the NDPS Act is not judicial enquiry, but only aGpreliminary fact-finding exercise before a”reason to believe” is formedunder section 42, which could then lead to investigation of an offenceunder the Act. He also referred to section 50 of the NDPS Act, andstated that given higher protection as to conditions under which searchof person may be conducted, it would be inconceivable to then concludethat under section 67, confessional statements can be recorded withoutH

more, subject to no safeguards whatsoever, on which convictions canthen be based. He relied strongly on State of Punjab v. Baldev Singh(1999) 6 SCC 172 and its aftermath Vijaysinh Chandubha Jadeja v.State of Gujarat (2011) 1 SCC 609 to argue that even after sub-sections(5) and (6) were added to section 50 of the NDPS Act, they did notdilute what was contained in section 50(1)-(4), and could only be used inemergent and urgent situations. He referred to statutes like the Terroristand Disruptive Activities (Prevention) Act, 1987 (“TADA”), and statedthat where under certain limited circumstances exceptions were madeto section 25 of the Evidence Act, they were hedged in with number ofsafeguards, as were laid down by this Court in Kartar Singh v. State ofPunjab (1994) 3 SCC 569. According to him, therefore, “police officer”needs to be construed functionally to include special police officers underthe NDPS Act, in the context of confessions made, with reference tosection 25 of the Evidence Act. He joined Shri Jain in asking for anoverruling of Raj Kumar Karwal (supra) and Kanhaiyalal (supra).

7. Shri S. Nagamuthu, learned Senior Advocate appearing onbehalf of the Appellant in Criminal Appeal No. 1826 of 2013, referred tosections 41 to 43 of the NDPS Act, and emphasised the fact that nopowers to “investigate” any offences are vested in the officers mentionedin these sections. He then referred to section 36 of the CrPC, and saidthat the scheme followed in the NDPS Act could be assimilated to section

36, in that, police officers superior in rank to an officer in charge of apolice station may exercise the same powers, throughout the local areato which they are appointed, as may be exercised by such officer withinthe limits of his station. He emphasised the fact that section 25 of theEvidence Act only applies to confessions made againstthe maker, asagainst statements recorded under section 161 of the CrPC, which arecompletely barred from being received in evidence under section 162 ofthe CrPC, save and except for purposes of contradiction. He arguedthat confessional statement made to section 41 or section 42officerwas also hit by section 25 of the Evidence Act. He added that thespecial procedure in section 36A of the NDPS Act applies only quaoffences punishable for term of more than three years, and whereoffences under the Act are punishable for terms up to three years, theyare to be tried by Magistrate under the CrPC. Obviously, officersunder section 53 of the NDPS Act would investigate an offence underthe Act that is punishable for term up to three years, and file police

Areport, as no complaint procedure,being the procedure under section36A of the NDPS Act, would then apply. According to him, this wouldshow that investigation does culminate in police report for offencespunishable for term up to three years, as result of which section36A(1)(d) has to be read as providing two methods of approaching aSpecial Court – one, by way of police report, and the other, by way ofBa complaint to the Special Court.

8. Shri Uday Gupta, learned Advocate appearing on behalf of theAppellant in Criminal Appeal No. 344 of 2013, supplemented thearguments of his predecessors, and stressed the fact that the “enquiry”under section 67 of the NDPS Act cannot possibly be governed by theCdefinition of “inquiry” under section 2(g) of the CrPC, as that “inquiry”relates only to inquiries conducted by Magistrate or Court. Hence, theexpression “enquiry” under section 67 must be given its ordinary meaning,which would indicate that it is only preliminary fact-finding enquirythat is referred to. He relied strongly on the Directorate of LawDEnforcement Handbook, in which the Directorate made it clear thatwhen statements are recorded under section 67 of the NDPS Act by thepolice, these would amount to statements under section 161 of the CrPC.He contended that if this is so, it would be extremely anomalous to havestatements recorded under section 67 by officers other than the police –mentioned under sections 41 and 42 of the NDPS Act, which are notEstatements made under section 161 of the CrPC – being admissible inevidence, on which conviction of an accused can then be based.

9. Shri Gupta was followed by Shri Sanjay Jain, learned Advocateappearing on behalf of the Appellant in Criminal Appeal No. 1750 of2009, who supplemented the arguments of his predecessors by referringFto section 53A, and notifications made under section 53, of the NDPSAct. He reiterated that officers under section 42 and officers undersection 53 of the NDPS Act perform different functions, and that asection 53 officer, being empowered to “investigate”, most certainly hasthe power to file police report before the Special Court.G10. Shri Aman Lekhi, learned Additional Solicitor General, appearingon behalf of the Union of India, took us through the NDPS Act, and said,that read as whole, it is balanced statute which protected both theinvestigation of crime, as well as the citizen, in that several safeguardswere contained therein. He was at pains to point out that it was not hisHcase that confession recorded under section 67 of the NDPS Act,

without more, would be sufficient to convict person accused of anoffence under the Act. According to him, this could only be done ifsection 24 of the Evidence Act was met, and the Court was satisfiedthat the confession so recorded was both voluntary and truthful. In anycase, he asserted that the safeguards that have been pointed out in D.K.Basu v. Union of India (1997) 1 SCC 416 at 435, 436, have now largelybeen incorporated in Chapter V of the CrPC, which safeguards wouldalso operate qua confessions recorded under section 67 of the NDPSAct. According to him, section 67 on its plain language does not refer tothe “information” spoken of in section 42, as it uses the expression“require” any person to produce or deliver document, as opposed toinformation “called for” from such persons.He also argued, based onjudgments of this Court, that confessions, if properly recorded, are thebest form of evidence, as these are facts known to the accused, aboutwhich he then voluntarily deposes. He also argued that section 190 ofthe CrPC is not completely displaced by section 36A(1)(d) of the NDPSAct, in that the requirement of the filing of complaint and/or policereport contained in section 190 continues to apply, in support of thedecision in Raj Kumar Karwal (supra). He then referred in detail toBadku Joti Savant (supra), and stated that this judgment was notconsidered in the reference order, and that finally, the only test that islaid down by several Constitution Bench judgments to determine whethera person is or is not “police officer” is whether such person is giventhe right to file report under section 173 of the CrPC. He made it clearthat section 53 of the NDPS Act did not deem the officers named thereinto be police officers – they were only given certain powers ofinvestigation, which did not ultimately lead to filing of charge-sheetunder section 173 of the CrPC. What was clear was that only a“complaint” could be filed by such officers under section 36A(1)(d) ofthe NDPS Act – the police report being only filed by the police force asconstituted under the Police Act, 1861. He disagreed vehemently withthe submission of Shri Jain that the “complaint” under section 36A(1)(d)would refer only to the complaint under section 59(3) of the NDPS Act,and referred to section 2(xxix) of the NDPS Act to refer to the definitionof “complaint” under section 2(d) of the CrPC, which is used in thesame sense as in the CrPC. He then pointed out several provisions inthe NDPS Act, where the word “police” or “police officer” is used incontrast to the other persons or officers who are part of the narcoticsand other setups. According to him, in any case,section 53A makes an

Ainroad into section 25 of the Evidence Act. Equally, according to him, themajority judgment in Raja Ram Jaiswal (supra) is per incuriam,inasmuch as it does not consider several provisions of the CrPC, andtherefore, arrives at the wrong test to determine as to who can be saidto be “police officer” within the meaning of section 25 of the EvidenceAct. In any case, he argued that the officers mentioned in sections 41Band 42 of the NDPS Act cannot be tarnished with the same brush as theregular police, as there is nothing to show that these officers use third-degree measures to extort confessions. He then referred to the languageof section 67 of the NDPS Act, in which, according to him, the expression“enquiry” is nothing but an investigation, and the expression”examine”Cis the same expression used in section 161 of the CrPC, which thereforeshould be accorded evidentiary value, as no safeguards as provided undersection 162 of the CrPC are mentioned qua statements made undersection 67 of the NDPS Act. He also argued that investigation beginsfrom the stage of collection of material under section 67, and for thisrelied strongly upon the recent Constitution Bench judgment in MukeshDSingh (supra). According to him, therefore, the reference order itselfbeing flawed, there ought to have been no reference at all, and that thejudgments in Raj Kumar Karwal (supra) and Kanhaiyalal (supra) donot need reconsideration. Later judgments such as Noor Aga (supra)ought to be overruled by us, inasmuch as they are contrary to severalEConstitution Bench judgments of this Court.

11. Shri Saurabh Mishra, learned Additional Advocate Generalappearing on behalf of the State of Madhya Pradesh in SLP (Crl.) 1202of 2017, largely reiterated the submissions of learned ASG, adding thatwhen section 67 of the NDPS Act is used to record the confession of anFaccused, section 164 of the CrPC will not apply, but only section 24 ofthe Evidence Act makes such confessions relevant, if the conditions laiddown in the section apply. He also reiterated that statement recordedunder section 67 of the NDPS Act cannot be assimilated to statementunder section 161 of the CrPC, for the reasons outlined by the learnedASG.G

12. Shri Aniruddha Mayee, learned counsel appearing for the Stateof Gujarat in Criminal Appeal No. 2214 of 2009; 344 of 2013; and 1750of 2009, adopted the submissions of Shri Aman Lekhi, learned ASG.

13. Having heard wide-ranging arguments of counsel on both sides,it is first necessary to give Constitutional backdrop to the points thatarise in this case.

FUNDAMENTAL RIGHTS AND THE NDPS ACT

14. The first most important constitutional protection provided inthe fundamental rights chapter so far as these cases are concerned isprovided by Article 20(3), which is the well-known right against self-incrimination. Article 20(3) reads as follows:

“(3) No person accused of any offence shall be compelled to be awitness against himself.”

15. In an early judgment of this Court, M.P. Sharma and Ors. v.Satish Chandra 1954 SCR 1077, an eight-Judge Bench of this Courtset out Article 20(3), and then went into the historical origin of this Articlein English law. In an important passage, the Court held:

“In view of the above background, there is no inherent reason toconstrue the ambit of this fundamental right as comprising verywide range. Nor would it be legitimate to confine it to the barelyliteral meaning of the words used, since it is recognised doctrinethat when appropriate constitutional provision has to be liberallyconstrued, so as to advance the intendment thereof and to preventits circumvention. Analysing the terms in which this right has beendeclared in our Constitution, it may be said to consist of thefollowing components. (1) It is right pertaining to person“accused of an offence”; (2) It is protection against “compulsionto be witness”; and (3) It is protection against such compulsionresulting in his giving evidence “against himself”.”

(at page 1086)

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Broadly stated the guarantee in Article 20(3) is against “testimonialcompulsion”.It is suggested that this is confined to the oralevidence of person standing his trial for an offence when calledto the witness-stand. We can see no reason to confine the contentof the constitutional guarantee to this barely literal import. So tolimit it would be to rob the guarantee of its substantial purposeand to miss the substance for the sound as stated in certain

AAmerican decisions. The phrase used in Article 20(3) is “to be awitness”. person can “be witness” not merely by giving oralevidence but also by producing documents or making intelligiblegestures as in the case of dumb witness (See Section 119 of theEvidence Act) or the like. “To be witness” is nothing more than“to furnish evidence” and such evidence can be furnished throughBthe lips or by production of thing or of document or in othermodes. So far as production of documents is concerned, no doubtSection 139 of the Evidence Act says that person producing adocument on summons is not witness. But that section is meantto regulate the right of cross-examination. It is not guide to theCconnotation of the word “witness”, which must be understood inits natural sense i.e. as referring to person who furnishesevidence. Indeed, every positive volitional act, which furnishesevidence is testimony, and testimonial compulsion connotescoercion which procures the positive volitional evidentiary acts ofthe person, as opposed to the negative attitude of silence orDsubmission on his part. Nor is there any reason to think that theprotection in respect of the evidence so procured is confined towhat transpires at the trial in the court room. The phrase used inArticle 20(3) is “to be witness” and not to “appear as witness”:It follows that the protection afforded to an accused in so far as itEis related, to the phrase “to be witness” is not merely in respectof testimonial compulsion in the court room but may well extendto compelled testimony previously obtained from him. It is availabletherefore to person against whom formal accusation relatingto the commission of an offence has been levelled which in thenormal course may result in prosecution. Whether it is availableFto other persons in other situations does not call for decision inthis case.

Considered in this light, the guarantee under Article 20(3) wouldbe available in the present cases to these petitioners against whoma first information report has been recorded as accused therein.It would extend to any compulsory process for production ofevidentiary documents which are reasonably likely to support aprosecution against them.

(at pages 1087-1088)

16. The Court then went on to state that there was no “fundamentalright to privacy” under the Indian Constitution, like the Fourth Amendmentto the US Constitution, about which more shall be said little later. Whatis important, however, is the fact that even in this early judgment, mereliteral reading was not given to Article 20(3). The Court recognised thata person can be said to be witness not merely by giving oral evidence,but also by producing documents – evidence being furnished through thelips of person or by production of thing or of document or in othermodes. It is important to stress that the protection was afforded to aperson formally accused of an offence on the basis of statement thatmay be compulsorily taken from him even before evidence is given in acourt.17. An eleven-Judge Bench was then constituted in State ofBombay v. Kathi Kalu Oghad and Ors. (1963) 2 SCR 10, as certaindoubts were raised on some of the propositions contained in the eight-Judge Bench decision of M.P. Sharma (supra). In this case, there werethree appeals before the Court, one of which involved proof of handwrittenevidence, another of which involved comparison of handwriting undersection 73 of the Evidence Act, and the third of which involved section27 of the Evidence Act. After hearing arguments on both sides, theCourt first concluded that M.P. Sharma (supra) was correctly decidedinsofar as it stated that the guarantee under Article 20(3) extended totestimony by witness given in or out of courts, which included statementswhich incriminated the maker. However, the Court went on to state that“furnishing evidence” would exclude thumb-impressions or writingspecimens, for the reason that the taking of impressions of parts of thebody often becomes necessary for the investigation of crime (seepage 29). Incriminating information must therefore include statementsbased on personal knowledge. The Court then went on to consider whethersection 27 of the Evidence Act would fall foul of Article 20(3), havingalready been upheld when constitutional challenge under Article 14had been repelled by the Court in State of U.P. v. Deoman Upadhyaya(1961) 1 SCR 14. The Court held that if self-incriminatory information isgiven under compulsion, then the provisions of section 27 of the EvidenceAct would not apply so as to allow the prosecution to place reliance onthe object recovered as result of the statement made (see pages 33-34). In the result, the Court held:

“(1) An accused person cannot be said to have been compelled tobe witness against himself simply because he made statementwhile in police custody, without anything more. In other words,the mere fact of being in police custody at the time when thestatement in question was made would not, by itself, as aproposition of law, lend itself to the inference that the accusedwas compelled to make the statement, though that fact, inconjunction with other circumstances disclosed in evidence in aparticular case, would be relevant consideration in an enquirywhether or not the accused person had been compelled to makethe impugned statement.

(2) The mere questioning of an accused person by police officer,resulting in voluntary statement, which may ultimately turn outto be incriminatory, is not “compulsion”.

(3) “To be witness” is not equivalent to “furnishing evidence” inits widest significance; that is to say, as including not merely makingof oral or written statements but also production of documents orgiving materials which may be relevant at trial to determine theguilt or innocence of the accused.

(4) Giving thumb impressions or impressions of foot or palm orfingers or specimen writings or showing parts of the body by wayof identification are not included in the expression “to be awitness”.

(5) “To be witness” means imparting knowledge in respect ofrelevant facts by an oral statement or statement in writing, madeor given in court or otherwise.

(6) “To be witness” in its ordinary grammatical sense meansgiving oral testimony in court. Case law has gone beyond thisstrict literal interpretation of the expression which may now beara wider meaning, namely, bearing testimony in court or out ofcourt by person accused of an offence, orally or in writing.

(7) To bring the statement in question within the prohibition ofArticle 20(3), the person accused must have stood in the characterof an accused person at the time he made the statement. It is notenough that he should become an accused, any time after thestatement has been made.”

(at pages 36-37)

18. It is important to note that conclusions (1) and (2) were madein the context of repelling challenge to section 27 of the Evidence Act.M.P. Sharma (supra), so far as it held that person is accused themoment there is formal accusation against him, by way of an FIR orotherwise, and that statements made by such person outside court, whetheroral or on personal knowledge of documents produced, is protected byArticle 20(3), remained untouched.

19. It is also important to note that in Balkishan A. Devidayal(supra), these judgments were referred to, and the Court then concluded:

“70. To sum up, only person against whom formal accusationof the commission of an offence has been made can be person“accused of an offence” within the meaning of Article 20(3). Suchformal accusation may be specifically made against him in anFIR or formal complaint or any other formal document or noticeserved on that person, which ordinarily results in his prosecutionin court. In the instant case no such formal accusation had beenmade against the appellant when his statement(s) in question wererecorded by the RPF officer.”

20. We now come to the judgment of this Court in NandiniSatpathy v. P.L. Dani (1978) 2 SCC 424. This case referred to theinter-play between Article 20(3) and section 161 of the CrPC as follows:

“21. Back to the constitutional quintessence invigorating the banon self-incrimination. The area covered by Article 20(3) andSection 161(2) is substantially the same. So much so, we areinclined to the view, terminological expansion apart, that Section161(2) of the CrPC is parliamentary gloss on the constitutionalclause. The learned Advocate-General argued that Article 20(3),unlike Section 161(1), did not operate at the anterior stages beforethe case came to court and the accused’s incriminating utterance,previously recorded, was attempted to be introduced. He reliedon some passages in American decisions but, in our understanding,those passages do not so circumscribe and, on the other hand, thelandmark Miranda [Miranda v. Arizona, 384 US 436 (1966)]ruling did extend the embargo to police investigation also.Moreover, Article 20(3), which is our provision, warrants no suchtruncation. Such narrow meaning may emasculate necessaryprotection. There are only two primary queries involved in this

Aclause that seals the lips into permissible silence: (i) Is the personcalled upon to testify “accused of any offence”? (ii) Is he beingcompelled to be witness against himself? constitutional provisionreceives its full semantic range and so it follows that widerconnotation must be imparted to the expressions “accused of anyoffence” and “to be witness against himself”. The learnedBAdvocate-General, influenced by American decisions rightlyagreed that in expression Section 161(2) of the Code might covernot merely accusations already registered in police stations butthose which are likely to be the basis for exposing person to acriminal charge. Indeed, this wider construction, if applicable toCArticle 20(3), approximates the constitutional clause to the explicitstatement of the prohibition in Section 161(2). This latter provisionmeaningfully uses the expression “expose himself to criminalcharge”. Obviously, these words mean, not only cases where theperson is already exposed to criminal charge but also instanceswhich will imminently expose him to criminal charges. In ArticleD20(3), the expression “accused of any offence” must meanformally accused in praesenti not in futuro — not evenimminently as decisions now stand. The expression “to be witnessagainst himself” means more than the court process. Any givingof evidence, any furnishing of information, if likely to have anEincriminating impact, answers the description of being witnessagainst oneself. Not being limited to the forensic stage by expresswords in Article 20(3), we have to construe the expression toapply to every stage where furnishing of information and collectionof materials takes place. That is to say, even the investigation atthe police level is embraced by Article 20(3). This is preciselyFwhat Section 161(2) means. That sub-section relates to oralexamination by police officers and grants immunity at that stage.Briefly, the Constitution and the Code are co-terminus in theprotective area. While the Code may be changed, the Constitutionis more enduring. Therefore, we have to base our conclusion notGmerely upon Section 161(2) but on the more fundamentalprotection, although equal in ambit, contained in Article 20(3).

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57. We hold that Section 161 enables the police to examine theaccused during investigation. The prohibitive sweep of Article 20(3)

goes back to the stage of police interrogation — not, as contended,commencing in court only. In our judgment, the provisions of Article20(3) and Section 161(1) substantially cover the same area, sofar as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trialis under way, goes beyond that case and protects the accused inregard to other offences pending or imminent, which may deterhim from voluntary disclosure of criminatory matter. We aredisposed to read “compelled testimony” as evidence procured notmerely by physical threats or violence but by psychic torture,atmospheric pressure, environmental coercion, tiring interrogativeprolixity, overbearing and intimidatory methods and the like — notlegal penalty for violation. So, the legal perils following upon refusalto answer, or answer truthfully, cannot be regarded as compulsionwithin the meaning of Article 20(3). The prospect of prosecutionmay lead to legal tension in the exercise of constitutional right,but then, stance of silence is running calculated risk. On theother hand, if there is any mode of pressure, subtle or crude, mentalor physical, direct or indirect, but sufficiently substantial, appliedby the policeman for obtaining information from an accusedstrongly suggestive of guilt, it becomes “compelled testimony”,violative of Article 20(3).58. police officer is clearly person in authority. Insistence onanswering is form of pressure especially in the atmosphere ofthe police station unless certain safeguards erasing duress areadhered to. Frequent threats of prosecution if there is failure toanswer may take on the complexion of undue pressure violatingArticle 20(3). Legal penalty may by itself not amount to duressbut the manner of mentioning it to the victim of interrogation mayintroduce an element of tension and tone of command perilouslyhovering near compulsion.

59. We have explained elaborately and summed up, in substance,what is self-incrimination or tendency to expose oneself to acriminal charge. It is less than “relevant” and more than“confessional”. Irrelevance is impermissible but relevance is licitbut when relevant questions are loaded with guilty inference inthe event of an answer being supplied, the tendency to incriminatesprings into existence. We hold further that the accused person

Acannot be forced to answer questions merely because the answersthereto are not implicative when viewed in isolation and confinedto that particular case. He is entitled to keep his mouth shut if theanswer sought has reasonable prospect of exposing him to guiltin some other accusation actual or imminent, even though theinvestigation under way is not with reference to that. We haveBalready explained that in determining the incriminatory characterof an answer the accused is entitled to consider — and the Courtwhile adjudging will take note of — the setting, the totality ofcircumstances, the equation, personal and social, which have abearing on making an answer substantially innocent but in effectCguilty in import. However, fanciful claims, unreasonableapprehensions and vague possibilities cannot be the hiding groundfor an accused person. He is bound to answer where there is noclear tendency to criminate.”

21. In Kartar Singh (supra), the majority judgment referred toDArticle 20(3) in the following terms:

“205. In our Constitution as well as procedural law and law ofEvidence, there are certain guarantees protecting the right andliberty of person in criminal proceeding and safeguards inmaking use of any statement made by him. Article 20(3) of theEConstitution declares that “No person accused of any offenceshall be compelled to be witness against himself”.

206. Article 20(3) of our Constitution embodies the principle ofprotection against compulsion of self-incrimination which is oneof the fundamental canons of the British System of CriminalFJurisprudence and which has been adopted by the AmericanSystem and incorporated in the Federal Acts. The Fifth Amendmentof the Constitution of the United States of America provides, “Noperson shall be held to answer for capital, or otherwise infamouscrime, unless on presentment or indictment of Grand Jury,except in cases arising … nor shall be compelled in any criminalGcase to be witness against himself…”.

207. The above principle is recognised to substantial extent inthe criminal administration of justice in our country by incorporatingvarious statutory provisions. One of the components of theguarantee contained in Article 20(3) of the Constitution is that it is

protection against compulsion resulting in the accused of anyoffence giving evidence against himself. There are number ofoutstanding decisions of this Court in explaining the intendment ofArticle 20(3). We feel that it would suffice if mere reference ismade to some of the judgments, those being: (1) M.P.Sharma v. Satish Chandra, District Magistrate, Delhi [1954SCR 1077], (2) Raja Narayanlal Bansilal v. Maneck PhirozMistry [(1961) 1 SCR 417], (3) State of Bombay v. Kathi KaluOghad [(1962) 3 SCR 10], and (4) Nandini Satpathy v. P.L.Dani [(1978) 2 SCC 424].208. Article 22(1) and (2) confer certain rights upon personwho has been arrested. Coming to the provisions of Code ofCriminal Procedure, Section 161 empowers police officer makingan investigation to examine orally any person supposed to beacquainted with the facts and circumstances of the case and toreduce into writing any statement made to him in the course ofsuch examination. Section 162 which speaks of the use of thestatement so recorded, states that no statement recorded by apolice officer, if reduced into writing, be signed by the personmaking it and that the statement shall not be used for any purposesave as provided in the Code and the provisions of the EvidenceAct. The ban imposed by Section 162 applies to all the statementswhether confessional or otherwise, made to police officer byany person whether accused or not during the course of theinvestigation under Chapter XII of the Code. But the statementgiven by an accused can be used in the manner provided by Section145 of the Evidence Act in case the accused examines himself asa witness for the defence by availing Section 315(1) of the Codecorresponding to Section 342-A of the old Code and to giveevidence on oath in disproof of the charges made against him orany person charged together with him at the same trial.

209. There is clear embargo in making use of this statement ofan accused given to police officer under Section 25 of theEvidence Act, according to which, no confession made to policeofficer shall be proved as against person accused of any offenceand under Section 26 according to which no confession made byany person whilst he is in custody of police officer, unless it ismade in the immediate presence of Magistrate, shall be proved

as against such person. The only exception is given under Section27 which serves as proviso to Section 26. Section 27 contemplatesthat only so much of information whether amounts to confessionor not, as relates distinctly to the fact thereby discovered, inconsequence of that information received from person accusedof any offence while in custody of the police can be proved asagainst the accused.

210. In the context of the matter under discussion, two moreprovisions also may be referred to — namely Sections 24 and 30of the Evidence Act and Section 164 of the Code.

211. Section 24 of the Evidence Act makes confession, causedto be made before any authority by an accused by any inducement,threat or promise, irrelevant in criminal proceeding. Section 30of the Evidence Act is to the effect that if confession made byone or more persons, affecting himself and some others jointlytried for the same offence is proved, the court may take intoconsideration such confession as against such other persons aswell as the maker of the confession. The explanation to the sectionreads that “offence” as used in this section includes the abetmentof, or attempt to commit, the offence.

212. Section 164 of the Code speaks of recording of confessionsand statements by Magistrates specified in that section bycomplying with the legal formalities and observing the statutoryconditions including the appendage of Certificate by theMagistrate recording the confession as contemplated under sub-sections (2) to (6) thereof.

213. Though in the old Code, there was specific embargo on apolice officer recording any statement or confession made to himin the course of an investigation embodied in the main sub-section(1) of Section 164 itself, in the present Code the legal bar is nowbrought by separate proviso to sub-section (1) of Section 164which reads:

“Provided that no confession shall be recorded by police officeron whom any power of Magistrate has been conferred underany law for the time being in force.”

This is new provision but conveys the same meaning as embodiedin the main sub-section (1) of Section 164 of the old Code.

214. Thus, an accused or person accused of any offence isprotected by the constitutional provisions as well as the statutoryprovisions to the extent that no self-incriminating statement madeby an accused to the police officer while he is in custody, could beused against such maker. The submission of the Additional SolicitorGeneral that while confession by an accused before specifiedofficer either under the Railway Protection Force Act or RailwayProperty (Unlawful Possession) Act or Customs Act or ForeignExchange Regulation Act is made admissible, the special procedureprescribed under this Act making confession of person indictedunder the TADA Act given to police officer admissible cannotbe questioned, is misnomer because all the officials empoweredto record statements under those special Acts are not policeofficers as per the judicial pronouncements of this Court as wellthe High Courts which principle holds the field till date. See(1) State of U.P. v. Durga Prasad [(1975) 3 SCC 210] ,(2) Balkishan A. Devidayal v. State of Maharashtra [(1980) 4SCC 600] , (3) Ramesh Chandra Mehta v. State of W.B. [RameshChandra Mehta v. State of W.B., (1969) 2 SCR 46],(4) Poolpandi v. Superintendent, Central Excise [(1992) 3 SCC259], (5) Directorate of Enforcement v. Deepak Mahajan[(1994) 3 SCC 440], and (6) Ekambaram v. State of T.N. [1972MLW (Cri) 261] We feel that it is not necessary to cite any moredecisions and swell this judgment.”

22. Ramaswamy, J. concurring in part, but dissenting on theconstitutional validity of sections 9(7) and 15 of the TADA, also referredto Article 20(3) as follows:

“377. Custodial interrogation exposes the suspect to the risk ofabuse of his person or dignity as well as distortion or manipulationof his self-incrimination in the crime. No one should be subjectedto physical violence of the person as well as to torture.Infringement thereof undermines the peoples’ faith in the efficacyof criminal justice system. Interrogation in police lock-up are oftendone under conditions of pressure and tension and the suspectcould be exposed to great strain even if he is innocent, while theculprit in custody to hide or suppress may be doubly susceptible to

confusion and manipulation. delicate balance has, therefore, tobe maintained to protect the innocent from conviction and theneed of the society to see the offender punished. Equally everyonehas right against self-incrimination and right to be silent underArticle 20(3) which implies his freedom from police or anybodyelse. But when the police interrogates suspect, they abuse theirauthority having unbridled opportunity to exploit his moral positionand authority inducing the captive to confess against his betterjudgment. The very fact that the person in authority puts thequestions and exerts pressure on the captive to comply (sic).Silence on the part of the frightened captive seems to his ears tocall for vengeance and induces belief that confession holds outa chance to avoid torture or to get bail or promise of lesserpunishment. The resourceful investigator adopts all successfultactics to elicit confession as is discussed below.

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396. In the State of Bombay v. Kathi Kalu Oghad [(1962) 3 SCR10] Bench of 11 Judges, per majority, interpreting Article 20(3)held on “testimonial compulsion” that, “[w]e can see no reason toconfine the content of the constitutional guarantee to this barelyliteral import. So to limit it would be to rob the guarantee of itsEsubstantial purpose and to miss the substance for the sound asstated in certain American decisions.” Indeed every positive actwhich furnishes evidence is testimony and testimonial compulsionconnotes coercion which procures positive oral evidence. Theacts of the person, of course, is neither negative attitude of silenceor submission on his part, nor is there any reason to think that theFprotection in respect of the evidence procured is confined to whattranspires at the trial in the court room. The phrase used in Article20(3) is to be witness and not to appear as witness. It followsthat the protection accorded to an accused insofar as it is relatedto the phrase “to be witness” is not merely in respect of theGtestimonial compulsion in the court room but may well extend tocompelled testimony previously obtained from him. The guaranteewas, therefore, held to include not only oral testimony given in acourt or out of court, but also statements in writing whichincriminated the maker when figuring as accused person.In Nandini Satpathy v. P.L. Dani it was further held that

[R. F. NARIMAN, J.]

compelled testimony must be read as evidence procured not merelyby physical threat or violence but by psychic torture, atmosphericpressure, environmental coercion, tiring interrogative prolixity,overbearing and intimidatory methods and the like — not legalpenalty for violation.”

23. Sahai, J. in separate opinion, concurring in part, but dissentingon the constitutional validity of section 15, referred to Article 20(3) asfollows:

“456. confession is an admission of guilt. The person making itstates something against himself, therefore it should be made insurroundings which are free from suspicion. Otherwise it violatesthe constitutional guarantee under Article 20(3) that no personaccused of an offence shall be compelled to be witness againsthimself. The word ‘offence’ used in the article should be given itsordinary meaning. It applies as much to an offence committedunder TADA as under any other Act. The word, ‘compelled’ordinarily means ‘by force’. This may take place positively andnegatively. When one forces one to act in manner desired byhim it is compelling him to do that thing. Same may take placewhen one is prevented from doing particular thing unless heagrees to do as desired. In either case it is compulsion. Aconfession made by an accused or obtained by him under coercionsuffers from infirmity unless it is made freely and voluntarily. Nocivilised democratic country has accepted confession made by anaccused before police officer as voluntary and above suspicion,therefore, admissible in evidence. One of the established rule ornorms accepted everywhere is that custodial confession ispresumed to be tainted. The mere fact that the Legislature wascompetent to make the law, as the offence under TADA is onewhich did not fall in any State entry, did not mean that theLegislature was empowered to curtail or erode person of hisfundamental rights. Making provision which has the effect offorcing person to admit his guilt amounts to denial of the liberty.The class of offences dealt by TADA may be different than otheroffences but the offender under TADA is as much entitled toprotection of Articles 20 and 21 as any other. The difference innature of offence or the legislative competence to enact law didnot affect the fundamental rights guaranteed by Chapter III. If

Athe construction as suggested by the learned Additional SolicitorGeneral is accepted it shall result in taking the law back onceagain to the days of Gopalan [A.K. Gopalan v. State of Madras,AIR 1950 SC 27] . Section 15 cannot be held to be valid merelybecause it is as result of law made by body which has beenfound entitled to make the law. The law must still be fair and justBas held by this Court. law which entitles police officer torecord confession and makes it admissible is thus violative of bothArticles 20(3) and 21 of the Constitution.”

24. recent judgment in Selvi v. State of Karnataka (2010) 7SCC 263 dealt with the constitutional validity of narco-analysis tests asCfollows:

“179. We now return to the operative question of whether theresults obtained through polygraph examination and the BEAPtest should be treated as testimonial responses. Ordinarily evidenceis classified into three broad categories, namely, oral testimony,Ddocuments and material evidence. The protective scope of Article20(3) read with Section 161(2) CrPC guards against thecompulsory extraction of oral testimony, even at the stage ofinvestigation. With respect to the production of documents, theapplicability of Article 20(3) is decided by the trial Judge but partiesEare obliged to produce documents in the first place. However, thecompulsory extraction of material (or physical) evidence liesoutside the protective scope of Article 20(3). Furthermore, eventestimony in oral or written form can be required under compulsionif it is to be used for the purpose of identification or comparisonwith materials and information that is already in the possession ofFinvestigators.

180. We have already stated that the narcoanalysis test includessubstantial reliance on verbal statements by the test subject andhence its involuntary administration offends the “right against self-incrimination”. The crucial test laid down in Kathi Kalu OghadGis that of

“imparting knowledge in respect of relevant facts, by means oforal statements or statements in writing by person who haspersonal knowledge of the facts to be communicated to court orto person holding an enquiry or investigation” (ibid. at SCR p.H30.).

The difficulty arises since the majority opinion in that case appearsto confine the understanding of “personal testimony” to theconveyance of personal knowledge through oral statements orstatements in writing. The results obtained from polygraphexamination or BEAP test are not in the nature of oral or writtenstatements. Instead, inferences are drawn from the measurementof physiological responses recorded during the performance ofthese tests. It could also be argued that tests such as polygraphexamination and the BEAP test do not involve “positive volitionalact” on part of the test subject and hence their results should notbe treated as testimony. However, this does not entail that theresults of these two tests should be likened to physical evidenceand thereby excluded from the protective scope of Article 20(3).

181. We must refer back to the substance of the decision in KathiKalu Oghad which equated testimonial act with the impartingof knowledge by person who has personal knowledge of thefacts that are in issue. It has been recognised in other decisionsthat such personal knowledge about relevant facts can also becommunicated through means other than oral or writtenstatements. For example in M.P. Sharma case, it was noted that“…evidence can be furnished through the lips or by production ofa thing or of document or in other modes.” (ibid. at SCR p.1087) Furthermore, common sense dictates that certaincommunicative gestures such as pointing or nodding can alsoconvey personal knowledge about relevant fact, without offeringa verbal response. It is quite foreseeable that such communicativegesture may by itself expose person to “criminal charges orpenalties” or furnish link in the chain of evidence needed forprosecution.182. We must also highlight that there is nothing to show that thelearned Judges in Kathi Kalu Oghad had contemplated theimpugned techniques while discussing the scope of the phrase “tobe witness” for the purpose of Article 20(3). At that time, thetransmission of knowledge through means other than speech orwriting was not something that could have been easily conceivedof. Techniques such as polygraph examination were fairly obscureand were the subject of experimentation in some western nationswhile the BEAP technique was developed several years later.

Just as the interpretation of statutes has to be often re-examinedin light of scientific advancements, we should also be willing tore-examine judicial observations with progressive lens.

183. An explicit reference to the lie detector tests was of coursemade by the US Supreme Court in Schmerber [384 US 757(1965)] decision, wherein Brennan, J. had observed at US p. 764:(L Ed p. 916)

“…To compel person to submit to testing in which an effort willbe made to determine his guilt or innocence on the basis ofphysiological responses, whether willed or not, is to evoke thespirit and history of the Fifth Amendment.”

184. Even though the actual process of undergoing polygraphexamination or BEAP test is not the same as that of making anoral or written statement, the consequences are similar. By makinginferences from the results of these tests, the examiner is able toDderive knowledge from the subject’s mind which otherwise wouldnot have become available to the investigators. These two testsare different from medical examination and the analysis of bodilysubstances such as blood, semen and hair samples, since the testsubject’s physiological responses are directly correlated to mentalfaculties. Through lie detection or gauging subject’s familiarityEwith the stimuli, personal knowledge is conveyed in respect of arelevant fact. It is also significant that unlike the case of documents,the investigators cannot possibly have any prior knowledge of thetest subject’s thoughts and memories, either in the actual orconstructive sense. Therefore, even if highly strained analogyFwere to be made between the results obtained from the impugnedtests and the production of documents, the weight of precedentsleans towards restrictions on the extraction of “personalknowledge” through such means.

185. During the administration of polygraph test or BEAPtest, the subject makes mental effort which is accompanied bycertain physiological responses. The measurement of theseresponses then becomes the basis of the transmission ofknowledge to the investigators. This knowledge may aid an ongoinginvestigation or lead to the discovery of fresh evidence whichcould then be used to prosecute the test subject. In any case, thecompulsory administration of the impugned tests impedes the

subject’s right to choose between remaining silent and offeringsubstantive information. The requirement of “positive volitionalact” becomes irrelevant since the subject is compelled to conveypersonal knowledge irrespective of his/her own volition.

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189. In light of the preceding discussion, we are of the view thatthe results obtained from tests such as polygraph examinationand the BEAP test should also be treated as “personal testimony”,since they are means for “imparting personal knowledge aboutrelevant facts”. Hence, our conclusion is that the results obtainedthrough the involuntary administration of either of the impugnedtests (i.e. the narcoanalysis technique, polygraph examination andthe BEAP test) come within the scope of “testimonial compulsion”,thereby attracting the protective shield of Article 20(3).

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262. In our considered opinion, the compulsory administration ofthe impugned techniques violates the “right against self-incrimination”. This is because the underlying rationale of the saidright is to ensure the reliability as well as voluntariness ofstatements that are admitted as evidence. This Court hasrecognised that the protective scope of Article 20(3) extends tothe investigative stage in criminal cases and when read with Section161(2) of the Code of Criminal Procedure, 1973 it protects accusedpersons, suspects as well as witnesses who are examined duringan investigation. The test results cannot be admitted in evidenceif they have been obtained through the use of compulsion. Article20(3) protects an individual’s choice between speaking andremaining silent, irrespective of whether the subsequent testimonyproves to be inculpatory or exculpatory. Article 20(3) aims toprevent the forcible “conveyance of personal knowledge that isrelevant to the facts in issue”. The results obtained from each ofthe impugned tests bear “testimonial” character and they cannotbe categorised as material evidence.

263. We are also of the view that forcing an individual to undergoany of the impugned techniques violates the standard of“substantive due process” which is required for restraining personalliberty. Such violation will occur irrespective of whether these

DEF

Atechniques are forcibly administered during the course of aninvestigation or for any other purpose since the test results couldalso expose person to adverse consequences of non-penalnature. The impugned techniques cannot be read into the statutoryprovisions which enable medical examination during investigationin criminal cases i.e. the Explanation to Sections 53, 53-A and 54Bof the Code of Criminal Procedure, 1973. Such an expansiveinterpretation is not feasible in light of the rule of “ejusdem generis”and the considerations which govern the interpretation of statutesin relation to scientific advancements. We have also elaboratedhow the compulsory administration of any of these techniques isCan unjustified intrusion into the mental privacy of an individual. Itwould also amount to “cruel, inhuman or degrading treatment”with regard to the language of evolving international human rightsnorms. Furthermore, placing reliance on the results gathered fromthese techniques comes into conflict with the “right to fair trial”.Invocations of compelling public interest cannot justify the dilutionDof constitutional rights such as the “right against self-incrimination”.

264. In light of these conclusions, we hold that no individual shouldbe forcibly subjected to any of the techniques in question, whetherin the context of investigation in criminal cases or otherwise. Doingso would amount to an unwarranted intrusion into personal liberty.

However, we do leave room for the voluntary administration ofthe impugned techniques in the context of criminal justice providedthat certain safeguards are in place. Even when the subject hasgiven consent to undergo any of these tests, the test results bythemselves cannot be admitted as evidence because the subject

Fdoes not exercise conscious control over the responses during theadministration of the test. However, any information or materialthat is subsequently discovered with the help of voluntaryadministered test results can be admitted in accordance withSection 27 of the Evidence Act, 1872.”

G25. Equally important is the right to privacy which has beenrecognised by number of decisions of this Court, and now firmlygrounded in Article 21 of the Constitution of India. In K.S. Puttaswamy(supra), several judgments were referred to; and M.P. Sharma (supra),where it was held that no such right was recognised in the Constitutionof India, was overruled. Thus, in the judgment of Chandrachud, J., itHwas stated:

“26.M.P. Sharma [1954 SCR 1077] was case where lawprescribing search to obtain documents for investigating intooffences was challenged as being contrary to the guarantee againstself-incrimination in Article 20(3). The Court repelled the argumentthat search for documents compelled person accused of anoffence to be witness against himself. Unlike notice to producedocuments, which is addressed to person and whose compliancewould constitute testimonial act, search warrant and seizurewhich follows are not testimonial acts of person to whom thewarrant is addressed, within the meaning of Article 20(3). TheCourt having held this, the controversy in M.P. Sharma wouldrest at that. The observations in M.P. Sharma to the effect thatthe Constitution makers had not thought it fit to subject theregulatory power of search and seizure to constitutional limitationsby recognising fundamental right to privacy (like the US FourthAmendment), and that there was no justification to import it into a“totally different fundamental right” are at the highest, strayobservations.

27. The decision in M.P. Sharma held that in the absence of aprovision like the Fourth Amendment to the US Constitution, aright to privacy cannot be read into the Indian Constitution. Thedecision in M.P. Sharma did not decide whether constitutionalright to privacy is protected by other provisions contained in thefundamental rights including among them, the right to life andpersonal liberty under Article 21. Hence the decision cannot beconstrued to specifically exclude the protection of privacy underthe framework of protected guarantees including those in Articles

19 or 21. The absence of an express constitutional guarantee ofprivacy still begs the question whether privacy is an element ofliberty and, as an integral part of human dignity, is comprehendedwithin the protection of life as well.

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100. M.P. Sharma dealt with challenge to search on the groundthat the statutory provision which authorised it, violated theguarantee against self-incrimination in Article 20(3). In the absenceof specific provision like the Fourth Amendment to the USConstitution in the Indian Constitution, the Court answered thechallenge by its ruling that an individual who is subject to search

during the course of which material is seized does not make avoluntary testimonial statement of the nature that would attractArticle 20(3). The Court distinguished compulsory search froma voluntary statement of disclosure in pursuance of notice issuedby an authority to produce documents. It was the former categorythat was held to be involved in compulsive search, which theCourt held would not attract the guarantee against self-incrimination. The judgment, however, proceeded further to holdthat in the absence of the right to privacy having been enumeratedin the Constitution, provision like the Fourth Amendment to theUS Constitution could not be read into our own. The observationin regard to the absence of the right to privacy in our Constitutionwas strictly speaking, not necessary for the decision of the Courtin M.P. Sharma and the observation itself is no more than passingobservation. Moreover, the decision does not adjudicate uponwhether privacy could be constitutionally protected right underany other provision such as Article 21 or under Article 19.

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316. The judgment in M.P. Sharma holds essentially that in theabsence of provision similar to the Fourth Amendment to theUS Constitution, the right to privacy cannot be read into theEprovisions of Article 20(3) of the Indian Constitution. The judgmentdoes not specifically adjudicate on whether right to privacy wouldarise from any of the other provisions of the rights guaranteed byPart III including Article 21 and Article 19. The observation thatprivacy is not right guaranteed by the Indian Constitution is notreflective of the correct position. M.P. Sharma is overruled toFthe extent to which it indicates to the contrary.”

26. The judgment of Nariman, J. held as follows:

“442. The importance of Semayne case [77 ER 194] is that itdecided that every man’s home is his castle and fortress for hisdefence against injury and violence, as well as for his repose.William Pitt, the Elder, put it thus:

“The poorest man may in his cottage bid defiance to all theforce of the Crown. It may be frail—its roof may shake—thewind may blow through it—the storm may enter, the rain mayenter—but the King of England cannot enter—all his forcedare not cross the threshold of the ruined tenement.”

century and half later, pretty much the same thing was saidin Huckle v. Money [Huckle v. Money 95 ER 768] in which itwas held that Magistrates cannot exercise arbitrary powers whichviolated the Magna Carta (signed by King John, conceding certainrights to his barons in 1215), and if they did, exemplary damagesmust be given for the same. It was stated that: (ER p. 769)

“… To enter man’s house by virtue of nameless warrant,in order to procure evidence, is worse than the SpanishInquisition; law under which no Englishman would wish tolive an hour….”

443. This statement of the law was echoedin Entick v. Carrington [Entick v. Carrington 95 ER 807] inwhich Lord Camden held that an illegal search warrant was“subversive of all the comforts of society” and the issuance ofsuch warrant for the seizure of all of man’s papers, and notonly those alleged to be criminal in nature, was “contrary to thegenius of the law of England”. few years later, in DaCosta v. Jones [Da Costa v. Jones 98 ER 1331] , Lord Mansfieldupheld the privacy of third person when such privacy was thesubject-matter of wager, which was injurious to the reputationof such third person. The wager in that case was as to whether acertain Chevalier D’eon was cheat and imposter in that he wasactually woman. Such wager which violated the privacy of athird person was held to be injurious to the reputation of the thirdperson for which damages were awarded to the third person.These early judgments did much to uphold the inviolability of theperson of citizen.

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456. The first thing that strikes one on reading the aforesaidpassage is that the Court (in M.P. Sharma) resisted the invitationto read the US Fourth Amendment into the US Fifth Amendment;in short it refused to read or import the Fourth Amendment intothe Indian equivalent of that part of the Fifth Amendment whichis the same as Article 20(3) of the Constitution of India. Also, thefundamental right to privacy, stated to be analogous to the FourthAmendment, was held to be something which could not be readinto Article 20(3).

457. The second interesting thing to be noted about theseobservations is that there is no broad ratio in the said judgmentthat fundamental right to privacy is not available in Part III ofthe Constitution. The observation is confined to Article 20(3).Further, it is clear that the actual finding in the aforesaid case hadto do with the law which had developed in this Court as well asthe US and the UK on Article 20(3) which, on the facts of thecase, was held not to be violated. Also we must not forget thatthis was an early judgment of the Court, delivered inthe Gopalan era, which did not have the benefit of R.C.Cooper or Maneka Gandhi. Quite apart from this, it is clearthat by the time this judgment was delivered, India was already asignatory to the Universal Declaration of Human Rights, Article12 of which states:

“12. No one shall be subjected to arbitrary interference withhis privacy, family, home or correspondence, nor to attacksupon his honour and reputation. Everyone has the right tothe protection of the law against such interference or attacks.”

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468. It will be seen that different smaller Benches of this Courtwere not unduly perturbed by the observations contained in M.P.Sharma as it was an early judgment of this Court delivered inthe Gopalan era which had been eroded by later judgments dealingwith the interrelation between fundamental rights and thedevelopment of the fundamental right to privacy as being part ofthe liberty and dignity of the individual.

469. Therefore, given the fact that this judgment dealt only withArticle 20(3) and not with other fundamental rights; given thefact that the 1948 Universal Declaration of Human Rightscontaining the right to privacy was not pointed out to the Court;given the fact that it was delivered in an era when fundamentalrights had to be read disjunctively in watertight compartments;and given the fact that Article 21 as we know it today only sprunginto life in the post Maneka Gandhi era, we are of the view thatthis judgment is completely out of harm’s way insofar as thegrounding of the right to privacy in the fundamental rights chapteris concerned.

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472. The majority judgment in Kharak Singh [KharakSingh v. State of U.P., (1964) 1 SCR 332] then went on to referto the Preamble to the Constitution, and stated that Article 21contained the cherished human value of dignity of the individualas the means of ensuring his full development and evolution. Apassage was then quoted from Wolf v. Colorado [Wolf v. Colorado338 US 25 (1949)] to the effect that the security of one’sprivacy against arbitrary intrusion by the police is basic to freesociety. The Court then went on to quote the US FourthAmendment which guarantees the rights of the people to besecured in their persons, houses, papers and effects againstunreasonable searches and seizures. Though the IndianConstitution did not expressly confer like guarantee, the majorityheld that nonetheless an unauthorised intrusion into person’shome would violate the English Common Law maxim whichasserts that every man’s house is his castle. In this view of Article21, Regulation 236(b) was struck down.

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475. If the passage in the judgment dealing with domiciliary visitsat night and striking it down is contrasted with the later passageupholding the other clauses of Regulation 236 extracted above, itbecomes clear that it cannot be said with any degree of claritythat the majority judgment upholds the right to privacy as beingcontained in the fundamental rights chapter or otherwise. As themajority judgment contradicts itself on this vital aspect, it wouldbe correct to say that it cannot be given much value as bindingprecedent. In any case, we are of the view that the majorityjudgment is good law when it speaks of Article 21 being designedto assure the dignity of the individual as most cherished humanvalue which ensures the means of full development and evolutionof human being. The majority judgment is also correct in pointingout that Article 21 interdicts unauthorised intrusion into person’shome. Where the majority judgment goes wrong is in holding thatfundamental rights are in watertight compartments and in holdingthat the right to privacy is not guaranteed right under ourConstitution. It can be seen, therefore, that the majority judgmentis like the proverbial curate’s egg—good only in parts. Strangelyenough when the good parts alone are seen, there is no real

difference between Subba Rao, J.’s approach in the dissentingjudgment and the majority judgment. This then answers the majorpart of the reference to this nine-Judge Bench in that we herebydeclare that neither the eight-Judge nor the six-Judge Bench canbe read to come in the way of reading the fundamental right toprivacy into Part III of the Constitution.

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521. In the Indian context, fundamental right to privacy wouldcover at least the following three aspects:

• Privacy that involves the person i.e. when there is some invasionCby the State of person’s rights relatable to his physical body,such as the right to move freely

• Informational privacy which does not deal with person’s bodybut deals with person’s mind, and therefore recognises that anindividual may have control over the dissemination of materialDthat is personal to him. Unauthorised use of such information may,therefore lead to infringement of this right; and

• The privacy of choice, which protects an individual’s autonomyover fundamental personal choices.

For instance, we can ground physical privacy or privacy relatingEto the body in Articles 19(1)(d) and (e) read with Article 21; groundpersonal information privacy under Article 21; and the privacy ofchoice in Articles 19(1)(a) to (c), 20(3), 21 and 25. The argumentbased on “privacy” being vague and nebulous concept need not,therefore, detain us.”

27. The NDPS Act is to be construed in the backdrop of Article20(3) and Article 21, Parliament being aware of the fundamental rightsof the citizen and the judgments of this Court interpreting them, as aresult of which delicate balance is maintained between the power ofthe State to maintain law and order, and the fundamental rights chapterGwhich protects the liberty of the individual. Several safeguards are thuscontained in the NDPS Act, which is of an extremely drastic anddraconian nature, as has been contended by the counsel for the Appellantsbefore us. Also, the fundamental rights contained in Articles 20(3) and21 are given pride of place in the Constitution. After the 42[nd] Amendmentto the Constitution was done away with by the 44[th] Amendment, it isHnow provided that even in an Emergency, these rights cannot be

suspended – see Article 359(1). The interpretation of statute like theNDPS Act must needs be in conformity and in tune with the spirit of thebroad fundamental right not to incriminate oneself, and the right to privacy,as has been found in the recent judgments of this Court.

CONFESSIONS UNDER SECTION 25 OF THEEVIDENCE ACT

28. At this juncture, it is important to set out sections 24 to 27 ofthe Evidence Act:

“24. Confession caused by inducement, threat or promise,when irrelevant in criminal proceeding.––A confession madeby an accused person is irrelevant in criminal proceeding, if themaking of the confession appears to the Court to have been causedby any inducement, threat or promise having reference to thecharge against the accused person, proceeding from person inauthority and sufficient, in the opinion of the Court, to give theaccused person grounds which would appear to him reasonablefor supposing that by making it he would gain any advantage oravoid any evil of temporal nature in reference to the proceedingsagainst him.

25. Confession to police-officer not to be proved.––Noconfession made to police-officer, shall be proved as against aperson accused of any offence.

26. Confession by accused while in custody of police not tobe proved against him.––No confession made by any personwhilst he is in the custody of police-officer, unless it be made inthe immediate presence of Magistrate, shall be proved as againstsuch person.

Explanation.––In this section “Magistrate” does not include thehead of village discharging magisterial functions in the Presidencyof Fort St. George or elsewhere, unless such headman is aMagistrate exercising the powers of Magistrate under the Codeof Criminal Procedure, 1882 (10 of 1882).

27. How much of information received from accused maybe proved.––Provided that, when any fact is deposed to asdiscovered inconsequence of information received from personaccused of any offence, in the custody of police-officer, so much

Aof such information, whether it amounts to confession or not, asrelates distinctly to the fact thereby discovered, may be proved.”

29. Section 25 was originally in the Criminal Procedure Code,1861 (Act 25 of 1861), and was brought into the Evidence Act of 1872.Section 25 states that confession made to any police officer, whateverBhis rank, cannot be relied upon against person accused of any offence.“Police officer” is not defined in the Evidence Act or in any cognatecriminal statute. As to what, therefore, “police officer” means, has beenthe subject matter of several decisions of this Court, which will be advertedto later.For the time being, section 25 is to be viewed in contrast tosection24, given the situation in India of the use of torture and third-degreeCmeasures. Unlike section 24, any confession made to police officercannot be used as evidence against person accused of an offence, thevoluntariness or otherwise of the confession being irrelevant – it isconclusively presumed by the legislature that all such confessions madeto police officers are tainted with the vice of coercion.

30. The ‘First Report Of Her Majesty’s Commissioners AppointedTo Consider The Reform Of The Judicial Establishments, JudicialProcedure And Laws Of India&c.’ (1856) which formed the basis forsection 25 of the Evidence Act, stated as follows:

“Then follow other provisions for preventing any species ofEcompulsion ormaltreatment with view to extort or confession orprocedure information. But weare informed, and this informationis corroborated by evidence we have examined,that, in spite ofthis qualification, confessions are frequently extorted or fabricated.Apolice officer, on receiving intimation of the occurrence of aFdacoity or other offenceof serious character, failing to discoverthe perpetrators of the offence, oftenendeavours to secure himselfagainst any charge of supinates or neglect by getting upa caseagainst parties whose circumstances or characters are such asare likely toobtain credit for an accusation of the kind againstthem. This is not infrequently doneby extorting or fabricating falseGconfession, and when this step is once taken, there isof courseimpunity for real offenders, and great encouragement to crime.The darogah is henceforth committed to the direction he hasgiven to the case; and it is hisobject to prevent discovery of thetruth, and the apprehension of the guilty parties,Who, as far as theHpolice are concerned, are now perfectly safe. We are

persuadedthat any provision to correct the exercise of this powerby the police will be futile; andwe accordingly propose to remedythe evil, as far as possible, by the adoption of arule prohibiting anyexamination whatever of any accused party by the police, theresultof which is to constitute written document.”

(at page 110)

31. It is important to emphasise that the interpretation of the term“accused” in section 25 of the Evidence Act is materially different fromthat contained in Article 20(3) of the Constitution. The scope of thesection is not limited by time – it is immaterial that the person was not anaccused at the time when the confessional statement was made. Thiswas felicitously put by this Court in Deoman Upadhyaya (supra) asfollows:

“By Section 24, in criminal proceeding against person, aconfession made by him is inadmissible if it appears to the courtto have been caused by inducement, threat or promise havingreference to the charge and proceeding from person in authority.By Section 25, there is an absolute ban against proof at the trial ofa person accused of an offence, of confession made to policeofficer. The ban which is partial under Section 24 and completeunder Section 25 applies equally whether or not the person againstwhom evidence is sought to be led in criminal trial was at thetime of making the confession in custody. For the ban to beeffective the person need not have been accused of an offencewhen he made the confession. The expression, “accused person”in Section 24 and the expression “a person accused of anyoffence” have the same connotation, and describe the personagainst whom evidence is sought to be led in criminal proceeding.As observed in Pakala Narayan Swami v. Emperor [LR 66 IA66] by the Judicial Committee of the Privy Council, “Section 25covers confession made to police officer before anyinvestigation has begun or otherwise not in the course of aninvestigation”. The adjectival clause “accused of any offence” istherefore descriptive of the person against whom confessionalstatement made by him is declared not provable, and does notpredicate condition of that person at the time of making thestatement for the applicability of the ban.”

(at page 21)

A32. Likewise, in Agnoo Nagesia v. State of Bihar (1966) 1 SCR134, the Court held:

“Section 25 provides: “No confession made to police officer,shall be proved as against person accused of an offence”. Theterms of Section 25 are imperative. confession made to policeBofficer under any circumstances is not admissible in evidenceagainst the accused. It covers confession made when he wasfree and not in police custody, as also confession made beforeany investigation has begun. The expression “accused of anyoffence” covers person accused of an offence at the trial whetheror not he was accused of the offence when he made theCconfession.”

(at page 137)

33. Thus, whereas formal accusation is necessary for invokingthe protection under Article 20(3), the same would be irrelevant forDinvoking the protection under section 25 of the Evidence Act.

34. Section 26 of the Evidence Act extends the protection toconfessional statements made by persons while “in the custody” of apolice-officer, unless it be made in the immediate presence of aMagistrate. “Custody” is not synonymous with “arrest”, as has beenEheld in number of judgments of this Court – custody could refer to asituation pre-arrest, as was the case in State of Haryana and Ors. v.Dinesh Kumar (2008) 3 SCC 222 (see paragraphs 27-29). In fact,section 46 of the CrPC speaks of “a submission to the custody by wordor action”, which would, inter alia, refer to voluntary appearancebefore police officer without any formal arrest being made.F

PROVISIONS CONTAINED IN THE NDPS ACT

35. At this stage, it is important to notice that the NDPS Act hasbeen held to be complete code on the subject covered by it. In NoorAga (supra), this Court held:

G“2. Several questions of grave importance including theconstitutional validity of the Narcotic Drugs and PsychotropicSubstances Act, 1985 (for short “the Act”), the standard and extentof burden of proof on the prosecution vis-à-vis the accused are inquestion in this appeal which arises out of judgment and orderdated 9-6-2006 passed by the High Court of Punjab and HaryanaH

in Criminal Appeal No. 810-SB of 2000 whereby and whereunderan appeal filed by the applicant against the judgment of convictionand sentence dated 7-6-2000 under Sections 22 and 23 of the Acthad been dismissed.

xxx xxxxxx

75. The Act is complete code by itself. The Customs Officershave been clothed with the powers of police officers under theAct. It does not, therefore, deal only with matter of impositionof penalty or an order of confiscation of the properties under theAct, but also with the offences having serious consequences.

xxx xxxxxx

80. The constitutional mandate of equality of law and equalprotection of law as adumbrated under Article 14 of the Constitutionof India cannot be lost sight of. The courts, it is well settled, wouldavoid construction which would attract the wrath of Article 14.They also cannot be oblivious of the law that the Act is completecode in itself and, thus, the provisions of the 1962 Act cannot beapplied to seek conviction thereunder.”

36. To similar effect, this Court in Mukesh Singh (supra) held:

“85. From the aforesaid scheme and provisions of the NDPS Act,it appears that the NDPS Act is complete code in itself. Section 41(1)authorises Metropolitan Magistrate or Magistrate of the first class orany Magistrate of the second class specially empowered by the StateGovernment in this behalf, may issue warrant for the arrest of anyperson whom he has reason to believe to have committed any offencepunishable under the NDPS Act, or for the search, whether by day orby night……Sub-section 2 of Section 41 authorises any such officer ofgazetted rank of the Departments of Central Excise…… as is empoweredin this behalf by general or special order by the Central Government, orany such officer of the Revenue…….police or any other department ofa State Government as is empowered in this behalf by general or specialorder, if he has reason to believe from personal knowledge or informationgiven by any person and taken in writing that any person has committedan offence punishable under the NDPS Act, authorising any officersubordinate to him but superior in rank to peon, sepoy or constable toarrest such person or search building, conveyance or place whether

Aby day or by night or himself arrest such person or search building,conveyance or place.”

37. The interplay between the CrPC and the provisions of theNDPS Act is contained in several provisions. It will be noticed that theCrPC has been expressly excluded when it comes to suspension,Bremission or commutation in any sentence awarded under the NDPSAct – see section 32A. Equally, nothing contained in section 360 of theCrPC or in the Probation of Offenders Act, 1958 is to apply to personconvicted of an offence under the NDPS Act, subject to the exceptionsthat such person is under 18 years of age, and that that offence only bepunishable under section 26 or 27 of the NDPS Act – see section 33.C

38. On the other hand, the CrPC has been made expresslyapplicable by the following sections of the NDPS Act:section 34(2), whichrefers to the form of security bond; section 36B, which refers to theHigh Court’s powers in appeal and revision; section 50(5), which refersto searching person without the intervention of Gazetted Officer or aDMagistrate; and section 51, which deals with warrants, arrests, searchesand seizures made under the Act. Equally, the CrPC has been appliedwith necessary modifications under section 36A(1)(b), when it comes toauthorising the detention of person in custody for period beyondfifteen days;section 37(1)(b), which contains additional conditions forEthe grant of bail in certain circumstances; and section 53A, which areexceptions engrafted upon statements made in writing under sections161, 162 and 172 of the CrPC. Read with sections 4(2) and 5 of theCrPC, the scheme of the NDPS Act seems to be that the CrPC isgenerally followed, except where expressly excluded, or applied withmodifications.F39. The Statement of Objects and Reasons for enacting the NDPSAct is important and states as follows:

“The statutory control over narcotic drugs is exercised in Indiathrough number of Central and State enactments. The principalGCentral Acts, namely the Opium Act, 1857, the Opium Act, 1878and the Dangerous Drugs Act, 1930 were enacted long timeago. With the passage of time and the developments in the field ofillicit drug traffic and drug abuse at national and international level,many deficiencies in the existing laws have come to notice, someof which are indicated below:H

(i)The scheme of penalties under the present Acts is notsufficiently deterrent to meet the challenge of well organizedgangs of smugglers. The Dangerous Drugs Act, 1930 providesfor maximum term of imprisonment of 3 years with orwithout fine and 4 years imprisonment with or without finefor repeat offences. Further, no minimum punishment isprescribed in the present laws, as result of which drugtraffickers have been some times let off by the courts withnominal punishment. The country has for the last few yearsbeen increasingly facing the problem of transit traffic of drugscoming mainly from some of our neighbouring countries anddestined mainly to Western countries.

(ii)The existing Central laws do not provide for investing theofficers of number of important Central enforcementagencies like Narcotics, Customs, Central Excise, etc., withthe power of investigation of offences under the said laws.

(iii)Since the enactment of the aforesaid three Central Acts avast body of international law in the field of narcotics controlhas evolved through various international treaties andprotocols. The Government of India has been party to thesetreaties and conventions which entail several obligationswhich are not covered or are only partly covered by thepresent Acts.

(iv) During recent years new drugs of addiction which have cometo be known as psychotropic substances have appeared onthe scene and posed serious problems to national government.There is no comprehensive law to enable exercise of controlover psychotropic substances in India in the manner asenvisaged in the Convention on Psychotropic Substances,1971 to which India has also acceded.

2. In view of what has been stated above, there is an urgent needfor the enactment of comprehensive legislation on narcotic drugsand psychotropic substances which, inter alia, should consolidateand amend the existing laws relating to narcotic drugs, strengthenthe existing controls over drug abuse, considerably enhance thepenalties particularly for trafficking offences, make provisions forexercising effective control over psychotropic substances andmake provisions for the implementation of international conventions

[2020] 12 S.C.R.

Arelating to narcotic drugs and psychotropic substances to whichIndia has become party.

3. The Bill seeks to achieve the above objects.”

(emphasis supplied)

B40. The very first thing that this Statement addresses is the woefulinadequacy of three old Acts, insofar as the scheme of penalties isconcerned, which were not sufficiently deterrent to meet the challengeof well organised gangs of smugglers, together with the importance ofinvesting, for the first time, the officers of central enforcement agencieswith the power of investigation of offences under the new law.CUndoubtedly, the NDPS Act is comprehensive legislation which makesprovisions for exercising control over narcotic drugs and psychotropicsubstances, at the heart of whichis the power vested in various officersto investigate offences under the Act, so as to prevent and punish thesame against offenders being, inter alia,organised gangs of smugglerswho indulge in what is considered by Parliament to be menace toDsociety. Also, the preamble to the NDPS Act states:“An Act to consolidate and amend the law relating to narcoticdrugs, to make stringent provisions for the control and regulationof operations relating to narcotic drugs and psychotropicsubstances, to provide for the forfeiture of property derived from,Eor used in, illicit traffic in narcotic drugs and psychotropicsubstances, to implement the provisions of the InternationalConvention on Narcotic Drugs and Psychotropic Substances andfor matters connected therewith.”

41. This itself refers to the Act being “stringent” measure toFcombat the menace of crimes relatable to drugs and psychotropicsubstances. Under Chapter IV, which deals with “Offences andPenalties”, sections 15-24 speak of various drugs and psychotropicsubstances, in which the golden thread running through these sections isthat where the contravention involves “small quantity” as defined, thereGcan be rigorous imprisonment for term that may extend to one year,or fine that may extend to ten thousand rupees or both; where thecontravention involves an intermediate quantity, i.e. between “small”and “commercial” quantity, with rigorous imprisonment that may extendto ten yearsand with fine that may extend to one lakh rupees; and wherethe contravention involves “commercial quantity” as defined, with rigorousHimprisonment for minimum of ten years but which may extend to twenty

years, and also be liable to fine which shall not be less than one lakh,but which may extend to two lakhs – the court, for reasons to be recorded,is also given the power to impose fine exceeding two lakhs. Undersections 28 and 29, punishments for attempts to commit offences, andfor abetment and criminal conspiracy, are then set out. An extremelyimportant section is section 30, where even preparation to commit anoffence is made an offence[1]. Under section 31, where person is alreadyconvicted of the commission of, or attempt to commit, or abetment of, orcriminal conspiracy to commit, any of the offences punishable under theNDPS Act, and is subsequently convicted of the commission of, orattempt to commit, or abetment of, or criminal conspiracy to commit, anoffence punishable under the NDPS Act, the punishment then goes toup to term which may extend to one and one-half times the maximumterm of imprisonment, and shall also be liable to fine which shall extendto one and one-half times of the maximum amount of fine. In certaincircumstances under section 31A, the death penalty is also awarded.Under section 32A, no sentence awarded under the NDPS Act, otherthan sentence under section 27, shall be suspended, remitted orcommuted. Equally, we have seen how under section 33, the Probationof Offenders Act, 1958 does not apply where the offender is above 18,or if the offence is for offences other than those under sections 26 and27 of the Act.

42. Several presumptions are also made under the NDPS Act inwhich the burden of proof is reversed, now being on the accused. Theyare all to be found in three sections – sections 35, 54 and 66. Thesesections state as follows:

“35. Presumption of culpable mental state.—(1) In anyprosecution for an offence under this Act which requires culpablemental state of the accused, the court shall presume the existenceof such mental state but it shall be defence for the accused toprove the fact that he had no such mental state with respect tothe act charged as an offence in that prosecution.

Explanation.—In this section “culpable mental state” includesintention, motive, knowledge of fact and belief in, or reason tobelieve, fact.

1It may be remembered that in the Indian Penal Code, 1860 ("IPC"), the only sectionwhere preparation is made an offence, is “preparation to commit dacoity”. See Section399, IPC.

(2) For the purpose of this section, fact is said to be proved onlywhen the court believes it to exist beyond reasonable doubt andnot merely when its existence is established by preponderanceof probability.”

“54. Presumption from possession of illicit articles.—In trialsunder this Act, it may be presumed, unless and until the contraryis proved, that the accused has committed an offence under thisAct in respect of—

(a) any narcotic drug or psychotropic substance or controlledsubstance;

(b) any opium poppy, cannabis plant or coca plant growing on anyland which he has cultivated;

(c) any apparatus specially designed or any group of utensilsspecially adopted for the manufacture of any narcotic drug orpsychotropic substance or controlled substance; or

(d) any materials which have undergone any process towards themanufacture of narcotic drug or psychotropic substance orcontrolled substance, or any residue left of the materials fromwhich any narcotic drug or psychotropic substance or controlledsubstance has been manufactured,

Efor the possession of which he fails to account satisfactorily.”

“66. Presumption as to documents in certain cases.—Whereany document—

(i) is produced or furnished by any person or has been seizedFfrom the custody or control of any person, in either case, underthis Act or under any other law, or

(ii) has been received from any place outside India (dulyauthenticated by such authority or person and in such manner asmay be prescribed by the Central Government) in the course ofGinvestigation of any offence under this Act alleged to have beencommitted by person, and such document is tendered in anyprosecution under this Act in evidence against him, or against himand any other person who is tried jointly with him, the court shall—

(a) presume, unless the contrary is proved, that the signature andHevery other part of such document which purports to be in the

handwriting of any particular person or which the court mayreasonably assume to have been signed by, or to be in thehandwriting of, any particular person, is in that person’s handwriting;and in the case of document executed or attested, that it wasexecuted or attested by the person by whom it purports to havebeen so executed or attested;

(b) admit the document in evidence, notwithstanding that it is notduly stamped, if such document is otherwise admissible in evidence;

(c) in case falling under clause (i), also presume, unless thecontrary is proved, the truth of the contents of such document.”

43. Section 37(1) makes all offences under the Act cognizableand non-bailable, with stringent conditions for bail attached:

“37. Offences to be cognizable and non-bailable.—(1)Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences undersection 19 or section 24 or section 27A and also for offencesinvolving commercial quantity shall be released on bail or on hisown bond unless—

(i) the Public Prosecutor has been given an opportunity to opposethe application for such release, and

(ii) where the Public Prosecutor opposes the application, the courtis satisfied that there are reasonable grounds for believing that heis not guilty of such offence and that he is not likely to commit anyoffence while on bail.

(2) The limitations on granting of bail specified in clause (b) ofsub-section (1) are in addition to the limitations under the Code ofCriminal Procedure, 1973 (2 of 1974) or any other law for thetime being in force on granting of bail.”

44. Under section 40, where person is convicted of any of theoffences punishable under the Act, the court may, in addition, publish atthe expense of such person – in newspaper or other manner – thefactum of such conviction. The NDPS Act is said to be in addition to theCustoms Act, 1962 and the Drugs and Cosmetics Act, 1940, so that,

Anotwithstanding that offences may be made out under those Acts,offences under the NDPS Act will continue to be tried as such – seesections 79 and 80.

45. Given the stringent nature of the NDPS Act, several sectionsprovide safeguards so as to provide balance between investigation andBtrial of offences under the Act, and the fundamental rights of the citizen.Several safeguards are contained in section 42, which states as follows:

“42. Power of entry, search, seizure and arrest withoutwarrant or authorisation.—(1) Any such officer (being an officersuperior in rank to peon, sepoy or constable) of the departmentsCof central excise, narcotics, customs, revenue intelligence or anyother department of the Central Government including para-military forces or armed forces as is empowered in this behalf bygeneral or special order by the Central Government, or any suchofficer (being an officer superior in rank to peon, sepoy orconstable) of the revenue, drugs control, excise, police or anyDother department of State Government as is empowered in thisbehalf by general or special order of the State Government, if hehas reason to believe from personal knowledge or informationgiven by any person and taken down in writing that any narcoticdrug, or psychotropic substance, or controlled substance in respectEof which an offence punishable under this Act has been committedor any document or other article which may furnish evidence ofthe commission of such offence or any illegally acquired propertyor any document or other article which may furnish evidence ofholding any illegally acquired property which is liable for seizureor freezing or forfeiture under Chapter VA of this Act is kept orFconcealed in any building, conveyance or enclosed place, maybetween sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;(b) in case of resistance, break open any door and remove anyobstacle to such entry;

(c) seize such drug or substance and all materials used in themanufacture thereof and any other article and any animal orconveyance which he has reason to believe to be liable toconfiscation under this Act and any document or other articlewhich he has reason to believe may furnish evidence of the

commission of any offence punishable under this Act or furnishevidence of holding any illegally acquired property which is liablefor seizure or freezing or forfeiture under Chapter VA of this Act;and

(d) detain and search, and, if he thinks proper, arrest any personwhom he has reason to believe to have committed any offencepunishable under this Act:

Provided that in respect of holder of licence for manufactureof manufactured drugs or psychotropic substances or controlledsubstances, granted under this Act or any rule or order madethereunder, such power shall be exercised by an officer not belowthe rank of sub-inspector:

Provided further that if such officer has reason to believe that asearch warrant or authorisation cannot be obtained withoutaffording opportunity for the concealment of evidence or facilityfor the escape of an offender, he may enter and search suchbuilding, conveyance or enclosed place at any time between sunsetand sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing undersub-section (1) or records grounds for his belief under the provisothereto, he shall within seventy-two hours send copy thereof tohis immediate official superior.”

46. From this section it is clear that only when the concernedofficer has “reason to believe” from personal knowledge or informationgiven by any person and taken down in writing that an offence has beencommitted, that the concerned officer may, only between sunrise andsunset, enter, search, seize drugs and materials, and arrest any personwho he believes has committed any offence. By the first proviso, thiscan be done only by an officer not below the rank of sub-inspector.Under sub-section (2) in addition, where the information in writing isgiven, the officer involved must send copy thereof to his immediateofficial superior within seventy-two hours. It is important here to contrast“reason to believe” with the expression “reason to suspect”, which iscontained in section 49 of the NDPS Act. Thus, “reason to believe” hasbeen construed by this Court in A.S. Krishnan v. State of Kerala (2004)11 SCC 576as follows:

A“9. Under IPC, guilt in respect of almost all the offences is fastenedeither on the ground of “intention” or “knowledge” or “reason tobelieve”. We are now concerned with the expressions“knowledge” and “reason to believe”. “Knowledge” is anawareness on the part of the person concerned indicating his stateof mind. “Reason to believe” is another facet of the state of mind.B“Reason to believe” is not the same thing as “suspicion” or “doubt”and mere seeing also cannot be equated to believing. “Reason tobelieve” is higher level of state of mind. Likewise “knowledge”will be slightly on higher plane than “reason to believe”. personcan be supposed to know where there is direct appeal to hisCsenses and person is presumed to have reason to believe if hehas sufficient cause to believe the same. Section 26 IPC explainsthe meaning of the words “reason to believe” thus:

“26. ‘Reason to believe’.—A person is said to have ‘reason tobelieve’ thing, if he has sufficient cause to believe that thing butDnot otherwise.””

47. Section 50 of the NDPS Act contains extremely importantconditions under which search of persons shall be conducted. Section50 states:

“50. Conditions under which search of persons shall beEconducted.—(1) When any officer duly authorised under section42 is about to search any person under the provisions of section41, section 42 or section 43, he shall, if such person so requires,take such person without unnecessary delay to nearest GazettedOfficer of any of the departments mentioned in section 42 or toFthe nearest Magistrate.

(2) If such requisition is made, the officer may detain the personuntil he can bring him before the Gazetted Officer or the Magistratereferred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom anyGsuch person is brought shall, if he sees no reasonable ground forsearch, forthwith discharge the person but otherwise shall directthat search be made.

(4) No female shall be searched by anyone excepting female.

(5) When an officer duly authorised under section 42 has reasonto believe that it is not possible to take the person to be searchedto the nearest Gazetted Officer or Magistrate without the possibilityof the person to be searched parting with possession of any narcoticdrug or psychotropic substance, or controlled substance or articleor document, he may, instead of taking such person to the nearestGazetted Officer or Magistrate, proceed to search the person asprovided under section100 of the Code of Criminal Procedure,1973 (2 of 1974).

(6) After search is conducted under sub-section (5), the officershall record the reasons for such belief which necessitated suchsearch and within seventy-two hours send copy thereof to hisimmediate official superior.”

48. In Baldev Singh (supra), this Court had held:

“17. The trial court in those cases had acquitted the accused onthe ground that the arrest, search and seizure were conducted inviolation of some of the “relevant and mandatory” provisions ofthe NDPS Act. The High Court declined to grant appeal againstthe order of acquittal. The State of Punjab thereupon filed appealsby special leave in this Court. In some other cases, where theaccused had been convicted, they also filed appeals by specialleave questioning their conviction and sentence on the ground thattheir trials were illegal because of non-compliance with thesafeguards provided under Section 50 of the NDPS Act. two-Judge Bench speaking through K. Jayachandra Reddy, J.considered several provisions of the NDPS Act governing arrest,search and seizure and, in particular, the provisions of Sections41, 42, 43, 44, 49, 50, 51, 52 and 57 of the NDPS Act as well asthe provisions of the Code of Criminal Procedure relating to searchand seizure effected during investigation of criminal case. Dealingwith Section 50, it was held that in the context in which the righthad been conferred, it must naturally be presumed that it isimperative on the part of the officer to inform the person to besearched of his right that if he so requires he shall be searchedbefore gazetted officer or Magistrate and on such request beingmade by him, to be taken before the gazetted officer or Magistratefor further proceedings. The reasoning given in Balbir Singhcase [(1994) 3 SCC 299] was that to afford an opportunity to the

person to be searched “if he so requires to be searched before agazetted officer or Magistrate” he must be made aware of thatright and that could be done only by the empowered officerby informing him of the existence of that right. The Court wenton to hold that failure to inform the person to be searched of thatright and if he so requires, failure to take him to the gazettedofficer or the Magistrate, would mean non-compliance with theprovisions of Section 50 which in turn would “affect the prosecutioncase and vitiate the trial”. The following conclusions were arrivedat by the two-Judge Bench in State of Punjab v. Balbir Singh:

“25. The questions considered above arise frequently before thetrial courts. Therefore we find it necessary to set out ourconclusions which are as follows:

(1) If police officer without any prior information as contemplatedunder the provisions of the NDPS Act makes search or arrestsa person in the normal course of investigation into an offence orsuspected offences as provided under the provisions of CrPCand when such search is completed at that stage Section 50 ofthe NDPS Act would not be attracted and the question of complyingwith the requirements thereunder would not arise. If during suchsearch or arrest there is chance recovery of any narcotic drugor psychotropic substance then the police officer, who is notempowered, should inform the empowered officer who shouldthereafter proceed in accordance with the provisions of the NDPSAct. If he happens to be an empowered officer also, then fromthat stage onwards, he should carry out the investigation inaccordance with the other provisions of the NDPS Act.

(2-A) Under Section 41(1) only an empowered Magistrate canissue warrant for the arrest or for the search in respect of offencespunishable under Chapter IV of the Act etc. when he has reasonto believe that such offences have been committed or suchsubstances are kept or concealed in any building, conveyance orplace. When such warrant for arrest or for search is issued by aMagistrate who is not empowered, then such search or arrest ifcarried out would be illegal. Likewise only empowered officersor duly authorized officers as enumerated in Sections 41(2) and42(1) can act under the provisions of the NDPS Act. If such

arrest or search is made under the provisions of the NDPS Actby anyone other than such officers, the same would be illegal.

(2-B) Under Section 41(2) only the empowered officer can givethe authorisation to his subordinate officer to carry out the arrestof person or search as mentioned therein. If there is acontravention, that would affect the prosecution case and vitiatethe conviction.

(2-C) Under Section 42(1) the empowered officer if has priorinformation given by any person, that should necessarily be takendown in writing. But if he has reason to believe from personalknowledge that offences under Chapter IV have been committedor materials which may furnish evidence of commission of suchoffences are concealed in any building etc. he may carry out thearrest or search without warrant between sunrise and sunsetand this provision does not mandate that he should record hisreasons of belief. But under the proviso to Section 42(1) if suchofficer has to carry out such search between sunset and sunrise,he must record the grounds of his belief.

To this extent these provisions are mandatory and contraventionof the same would affect the prosecution case and vitiate thetrial.

(3) Under Section 42(2) such empowered officer who takes downany information in writing or records the grounds under proviso toSection 42(1) should forthwith send copy thereof to his immediateofficial superior. If there is total non-compliance of this provisionthe same affects the prosecution case. To that extent it ismandatory. But if there is delay whether it was undue or whetherthe same has been explained or not, will be question of fact ineach case.

(4-A) If police officer, even if he happens to be an ‘empowered’officer while effecting an arrest or search during normalinvestigation into offences purely under the provisions of CrPCfails to strictly comply with the provisions of Sections 100 and 165CrPC including the requirement to record reasons, such failurewould only amount to an irregularity.

(4-B) If an empowered officer or an authorised officer underSection 41(2) of the Act carries out search, he would be doing

so under the provisions of CrPC namely Sections 100 and 165CrPC and if there is no strict compliance with the provisions ofCrPC then such search would not per se be illegal and would notvitiate the trial.

The effect of such failure has to be borne in mind by the courtswhile appreciating the evidence in the facts and circumstances ofeach case.

(5) On prior information the empowered officer or authorisedofficer while acting under Sections 41(2) or 42 should complywith the provisions of Section 50 before the search of the personis made and such person should be informed that if he sorequires, he shall be produced before gazetted officer or aMagistrate as provided thereunder. It is obligatory on the partof such officer to inform the person to be searched. Failureto inform the person to be searched and if such person sorequires, failure to take him to the gazetted officer or theMagistrate, would amount to non-compliance of Section 50which is mandatory and thus it would affect the prosecutioncase and vitiate the trial. After being so informed whether suchperson opted for such course or not would be question of fact.

(6) The provisions of Sections 52 and 57 which deal with theEsteps to be taken by the officers after making arrest or seizureunder Sections 41 to 44 are by themselves not mandatory. If thereis non-compliance or if there are lapses like delay etc. then thesame has to be examined to see whether any prejudice has beencaused to the accused and such failure will have bearing on theFappreciation of evidence regarding arrest or seizure as well as onmerits of the case.”

(emphasis in original)

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57. On the basis of the reasoning and discussion above, theGfollowing conclusions arise:

(1) That when an empowered officer or duly authorised officeracting on prior information is about to search person, it isimperative for him to inform the concerned person of his rightunder Sub-section (1) of Section 50 of being taken to the nearest

Gazetted Officer or the nearest Magistrate for making the search.However, such information may not necessarily be in writing;

(2) That failure to inform the concerned person about the existenceof his right to be searched before Gazetted Officer or aMagistrate would cause prejudice to an accused;

(3) That search made, by an empowered officer, on priorinformation, without informing the person of his right that, if he sorequires, he shall be taken before Gazetted Officer or aMagistrate for search and in case he so opts, failure to conducthis search before Gazetted Officer or Magistrate, may notvitiate the trial but would render the recovery of the illicit articlesuspect and vitiate the conviction and sentence of an accused,where the conviction has been recorded only on the basis of thepossession of the illicit article, recovered from his person, duringa search conducted in violation of the provisions of Section 50 ofthe Act;(4) That there is indeed need to protect society from criminals.The societal intent in safety will suffer if persons who commitcrimes are let off because the evidence against them is to betreated as if it does not exist. The answer, therefore, is that theinvestigating agency must follow the procedure as envisaged bythe statute scrupulously and the failure to do so must be viewedby the higher authorities seriously inviting action against theconcerned official so that the laxity on the part of the investigatingauthority is curbed. In every case the end result is important butthe means to achieve it must remain above board. The remedycannot be worse than the disease itself. The legitimacy of judicialprocess may come under cloud if the court is seen to condoneacts of lawlessness conducted by the investigating agency duringsearch operations and may also undermine respect for law andmay have the effect of unconscionably compromising theadministration of justice. That cannot be permitted. An accused isentitled to fair trial. conviction resulting from an unfair trial iscontrary to our concept of justice. The use of evidence collectedin breach of the safeguards provided by Section 50 at the trial,would render the trial unfair.

(5) That whether or not the safeguards provided in Section 50 havebeen duly observed would have to be determined by the Court on

Athe basis of evidence led at the trial. Finding on that issue, oneway or the other, would be relevant for recording an order ofconviction or acquittal. Without giving an opportunity to theprosecution to establish, at the trial, that the provisions of Section50, and particularly the safeguards provided therein were dulycomplied with, it would not be permissible to cut-short criminalBtrial;

(6) That in the context in which the protection has beenincorporated in Section 50 for the benefit of the person intendedto be searched, we do not express any opinion whether theprovisions of Section 50 are mandatory or directory, but, hold thatCfailure to inform the concerned person of his right as emanatingfrom Sub-section (1) of Section 50, may render the recovery ofthe contraband suspect and the conviction and sentence of anaccused bad and unsustainable in law;

(7) That an illicit article seized from the person of an accusedDduring search conducted in violation of the safeguards providedin Section 50 of the Act cannot be used as evidence of proof ofunlawful possession of the contraband on the accused though anyother material recovered during that search may be relied uponby the prosecution, in other proceedings, against an accused,Enotwithstanding the recovery of that material during an illegalsearch;

(8) presumption under Section 54 of the Act can only be raisedafter the prosecution has established that the accused was foundto be in possession of the contraband in search conducted inFaccordance with the mandate of Section 50. An illegal searchcannot entitle the prosecution to raise presumption under Section54 of the Act

(9) That the judgment in Pooran Mal’s case cannot be understoodto have laid down that an illicit article seized during search of aGperson, on prior information, conducted in violation of the provisionsof Section 50 of the Act, can by itself be used as evidence ofunlawful possession of the illicit article on the person from whomthe contraband has been seized during the illegal search;

(10) That the judgment in Ali Mustaffa’s case correctly interpretsand distinguishes the judgment in Pooran Mal’s case and the broad

observations made in Pirthi Chand’s case and Jasbir Singh’s caseare not in tune with the correct exposition of law as laid down inPooran Mal’s case. The above conclusions are not summary ofour judgment and have to be read and considered in the light ofthe entire discussion contained in the earlier part.”

49. Immediately after this judgment, Parliament enacted sub-sections (5) and (6). Despite the enactment of these provisions, thisCourt in Vijaysinh Chandubha Jadeja (supra) specifically held asfollows:

“24. Although the Constitution Bench in Baldev Singhcase [(1999) 6 SCC 172] did not decide in absolute terms thequestion whether or not Section 50 of the NDPS Act was directoryor mandatory yet it was held that provisions of sub-section (1) ofSection 50 make it imperative for the empowered officer to“inform” the person concerned (suspect) about the existence ofhis right that if he so requires, he shall be searched before gazettedofficer or Magistrate; failure to “inform” the suspect about theexistence of his said right would cause prejudice to him, and incase he so opts, failure to conduct his search before gazettedofficer or Magistrate, may not vitiate the trial but would renderthe recovery of the illicit article suspect and vitiate the convictionand sentence of an accused, where the conviction has beenrecorded only on the basis of the possession of the illicit article,recovered from the person during search conducted in violationof the provisions of Section 50 of the NDPS Act. The Court alsonoted that it was not necessary that the information required to begiven under Section 50 should be in prescribed form or in writingbut it was mandatory that the suspect was made aware of theexistence of his right to be searched before gazetted officer ora Magistrate, if so required by him. We respectfully concur withthese conclusions. Any other interpretation of the provision wouldmake the valuable right conferred on the suspect illusory and afarce.

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27. It can, thus, be seen that apart from the fact that in KarnailSingh [(2009) 8 SCC 539], the issue was regarding the scopeand applicability of Section 42 of the NDPS Act in the matter of

conducting search, seizure and arrest without warrant orauthorisation, the said decision does not depart from the dictumlaid down in Baldev Singh case [(1999) 6 SCC 172] insofar asthe obligation of the empowered officer to inform the suspect ofhis right enshrined in sub-section (1) of Section 50 of the NDPSAct is concerned. It is also plain from the said paragraph that theflexibility in procedural requirements in terms of the two newlyinserted sub-sections can be resorted to only in emergent andurgent situations, contemplated in the provision, and not as matterof course. Additionally, sub-section (6) of Section 50 of the NDPSAct makes it imperative and obligatory on the authorised officerto send copy of the reasons recorded by him for his belief interms of sub-section (5), to his immediate superior officer, withinthe stipulated time, which exercise would again be subjected tojudicial scrutiny during the course of trial.

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29. In view of the foregoing discussion, we are of the firm opinionthat the object with which the right under Section 50(1) of theNDPS Act, by way of safeguard, has been conferred on thesuspect viz. to check the misuse of power, to avoid harm toinnocent persons and to minimise the allegations of planting orEfoisting of false cases by the law enforcement agencies, it wouldbe imperative on the part of the empowered officer to apprise theperson intended to be searched of his right to be searched beforea gazetted officer or Magistrate. We have no hesitation in holdingthat insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it isFmandatory and requires strict compliance. Failure to comply withthe provision would render the recovery of the illicit article suspectand vitiate the conviction if the same is recorded only on the basisof the recovery of the illicit article from the person of the accusedduring such search. Thereafter, the suspect may or may not chooseGto exercise the right provided to him under the said provision.

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31. We are of the opinion that the concept of “substantialcompliance” with the requirement of Section 50 of the NDPSAct introduced and read into the mandate of the said sectionin Joseph Fernandez [(2000) 1 SCC 707] and Prabha Shankar

Dubey [(2004) 2 SCC 56] is neither borne out from the languageof sub-section (1) of Section 50 nor is it in consonance with thedictum laid down in Baldev Singh case [(1999) 6 SCC 172].Needless to add that the question whether or not the procedureprescribed has been followed and the requirement of Section 50had been met, is matter of trial. It would neither be possible norfeasible to lay down any absolute formula in that behalf.”

50. Thus, this extremely important safeguard continues, as hasbeen originally enacted, subject only to the exceptions in sub-sections(5) and (6), which can only be used in urgent and emergent situations.This Court has clearly held that non-compliance of this provision wouldlead to the conviction of the accused being vitiated, and that “substantial”compliance with these provisions would not save the prosecution case.

51. Likewise, section 52 of the NDPS Act states as follows:

“52. Disposal of persons arrested and articles seized.—(1)Any officer arresting person under section 41, section 42, section43 or section 44 shall, as soon as may be, inform him of the groundsfor such arrest.

(2) Every person arrested and article seized under warrant issuedunder sub-section (1) of section 41 shall be forwarded withoutunnecessary delay to the Magistrate by whom the warrant wasissued.

(3) Every person arrested and article seized under sub-section(2) of section 41, section 42, section 43 or section 44 shall beforwarded without unnecessary delay to—

(a) the officer-in-charge of the nearest police station, or

(b) the officer empowered under section 53.

(4) The authority or officer to whom any person or article isforwarded under sub-section (2) or sub-section (3) shall, with allconvenient despatch, take such measures as may be necessaryfor the disposal according to law of such person or article.”

52. Section 52(1)-(3) contains three separate safeguards, insofaras disposal of persons arrested and articles seized are concerned.

53. Section 57 then speaks of person making an arrest or seizurehaving to make full report of all the particulars of such arrest or seizure

Ato his immediate official superior within forty-eight hours. Equally, undersection 57A, whenever any officer notified under section 53 makes anarrest or seizure under the Act, the officer shall make report of theillegally acquired properties of such person to the jurisdictional competentauthority within ninety days of the arrest or seizure. Section 58 is extremelyimportant, and is set out hereinbelow:B

“58. Punishment for vexatious entry, search, seizure orarrest.—(1) Any person empowered under section 42 or section43 or section 44 who—

(a) without reasonable ground of suspicion enters or searches, orCcauses to be entered or searched, any building, conveyance orplace;

(b) vexatiously and unnecessarily seizes the property of any personon the pretence of seizing or searching for any narcotic drug orpsychotropic substance or other article liable to be confiscatedDunder this Act, or of seizing any document or other article liable tobe seized under section 42, section 43 or section 44; or

(c) vexatiously and unnecessarily detains, searches or arrests anyperson, shall be punishable with imprisonment for term whichmay extend to six months or with fine which may extend to oneEthousand rupees, or with both.

(2) Any person wilfully and maliciously giving false informationand so causing an arrest or search being made under this Actshall be punishable with imprisonment for term which may extendto two years or with fine or with both.”F54. This, more than any other provision, makes it clear that aperson’s privacy is not to be trifled with, because if it is, the officer whotrifles with it is himself punishable under the provision. Under section 63,which contains the procedure in making confiscations, the first provisoto sub-section (2) makes it clear that no order of confiscation of anarticle or thing shall be made until the expiry of one month from the dateGof seizure, or without hearing any person who may claim any right theretoand the evidence which he produces in respect of his claim.

55. Given the stringent provisions of the NDPS Act, together withthe safeguards mentioned in the provisions discussed above, it is importantto note that statutes like the NDPS Act have to be construed bearing inH

mind the fact that the severer the punishment, the greater the care takento see that the safeguards provided in the statute are scrupulouslyfollowed. This was laid down in paragraph 28 of Baldev Singh(supra).That the NDPS Act is predominantly penal statute is no longerres integra.In Directorate of Revenue and Anr. v. Mohammed NisarHolia (2008) 2 SCC 370, this Court held:

“9. The NDPS Act is penal statute. It invades the rights of anaccused to large extent. It raises presumption of culpablemental state. Ordinarily, even an accused may not be released onbail having regard to Section 37 of the Act. The court has thepower to publish names, address and business, etc. of the offenders.Any document produced in evidence becomes admissible. vastpower of calling for information upon the authorities has beenconferred by reason of Section 67 of the Act.

10. Interpretation and/or validity in regard to the power of searchand seizure provided for under the said Act came up forconsideration in Balbir Singh case [(1994) 3 SCC 299] whereinit was held:

“10. It is thus clear that by combined reading of Sections 41, 42,43 and 51 of the NDPS Act and Section 4 CrPC regarding arrestand search under Sections 41, 42 and 43, the provisions of CrPC,namely, Sections 100 and 165 would be applicable to such arrestand search. Consequently the principles laid down by various courtsas discussed above regarding the irregularities and illegalities inrespect of arrest and search would equally be applicable to thearrest and search under the NDPS Act also depending upon thefacts and circumstances of each case.11. But there are certain other embargoes envisaged underSections 41 and 42 of the NDPS Act. Only Magistrate soempowered under Section 41 can issue warrant for arrest andsearch where he has reason to believe that an offence underChapter IV has been committed so on and so forth as mentionedtherein. Under sub-section (2) only gazetted officer or otherofficers mentioned and empowered therein can give anauthorisation to subordinate to arrest and search if such officerhas reason to believe about the commission of an offence andafter reducing the information, if any, into writing. Under Section42 only officers mentioned therein and so empowered can make

the arrest or search as provided if they have reason to believefrom personal knowledge or information. In both these provisionsthere are two important requirements. One is that the Magistrateor the officers mentioned therein firstly be empowered and theymust have reason to believe that an offence under Chapter IVhas been committed or that such arrest or search was necessaryfor other purposes mentioned in the provision. So far as the firstrequirement is concerned, it can be seen that the legislatureintended that only certain Magistrates and certain officers of higherrank and empowered can act to effect the arrest or search. Thisis safeguard provided having regard to the deterrent sentencescontemplated and with view that innocent persons are notharassed. Therefore if an arrest or search contemplated underthese provisions of NDPS Act has to be carried out, the same canbe done only by competent and empowered Magistrates or officersmentioned thereunder.”

11. Power to make search and seizure as also to arrest an accusedis founded upon and subject to satisfaction of the officer as theterm “reason to believe” has been used. Such belief may befounded upon secret information that may be orally conveyed bythe informant. Draconian provision which may lead to harshsentence having regard to the doctrine of “due process” asadumbrated under Article 21 of the Constitution of India requiresstriking of balance between the need of law and enforcementthereof, on the one hand, and protection of citizen from oppressionand injustice on the other.

12. This Court in Balbir Singh [(1994) 3 SCC 299] referringto Miranda v. State of Arizona [384 US 436 (1966)] whileinterpreting the provisions of the Act held that not only theprovisions of Section 165 of the Code of Criminal Procedure wouldbe attracted in the matter of search and seizure but the samemust comply with right of the accused to be informed about therequirement to comply with the statutory provisions.

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16. It is not in dispute that the said Act prescribes stringentpunishment. balance, thus, must be struck in regard to the modeand manner in which the statutory requirements are to be compliedwith vis-à-vis the place of search and seizure.”

56. Likewise, in Union of India v. Bal Mukund (2009) 12 SCC161, this Court held:

“28. Where statute confers such drastic powers and seeks todeprive citizen of its liberty for not less than ten years, and makingstringent provisions for grant of bail, scrupulous compliance with thestatutory provisions must be insisted upon.”

57. With this pronouncement of the law in mind, let us now examinethe two questions that have been referred to us.

SCOPE OF SECTION 67 OF THE NDPS ACT

58. Section 67 of the NDPS Act is set out hereinbelow:

“67. Power to call for information, etc.—Any officer referredto in section 42 who is authorised in this behalf by the CentralGovernment or State Government may, during the course ofany enquiry in connection with the contravention of any provisionof this Act,—

(a) call for information from any person for the purpose of satisfyinghimself whether there has been any contravention of the provisionsof this Act or any rule or order made thereunder;

(b) require any person to produce or deliver any document orthing useful or relevant to the enquiry;

(c) examine any person acquainted with the facts andcircumstances of the case.”

59. The marginal note to the section indicates that it refers only tothe power to “call for information, etc.”. As has been held by this Courtin K.P. Varghese v. Income Tax Officer, Ernakulam and Anr. (1981)4 SCC 173, marginal note is an important internal tool for indicating themeaning and purpose of section in statute, as it indicates the “drift”of the provision. The Court held as follows:

“9. This interpretation of sub-section (2) is strongly supported bythe marginal note to Section 52 which reads “Consideration fortransfer in cases of understatement”. It is undoubtedly true thatthe marginal note to section cannot be referred to for the purposeof construing the section but it can certainly be relied upon asindicating the drift of the section or, to use the words of Collins,M.R. in Bushel v. Hammond [(1904) 2 KB 563] to show what

Athe section is dealing with. It cannot control the interpretation ofthe words of section particularly when the language of the sectionis clear and unambiguous but, being part of the statute, it primafacie furnishes some clue as to the meaning and purpose of thesection (vide Bengal Immunity Company Limited v. State ofBihar [(1955) 2 SCR 603]).”

60. Secondly, it isonly an officer referred to in section 42 whomay use the powers given under section 67 in order to make an “enquiry”in connection withthe contravention of any provision of this Act. Theword “enquiry” has been used in section 67 to differentiate it from“inquiry” as used in section 53A, which is during the course of investigationCof offences[2].As matter of fact, the notifications issued under the Actsoon after the Act came into force, which will be referred to later in thejudgment, specifically speak of the powers conferred under section 42(1)read with section 67. This is an important executive reading of the NDPSAct, which makes it clear that the powers to be exercised under sectionD67 are to be exercised in conjunction with the powers that are delineatedin section 42(1). Thus, in Desh Bandhu Gupta & Co. v. Delhi StockExchange Assn. Ltd. (1979) 4 SCC 565, this Court referred to theprinciple of “contemporanea expositio” in the context of an executiveinterpretation of statute, as follows:

E“9…The principle of contemporanea expositio (interpreting astatute or any other document by reference to the exposition ithas received from contemporary authority) can be invoked thoughthe same will not always be decisive of the question of construction(Maxwell 12th ed.p.268). In Crawford on Statutory Construction(1940 ed.) in para 219 (at pp. 393-395) it has been stated thatFadministrative construction (i.e. contemporaneous constructionplaced by administrative or executive officers charged withexecuting statute) generally should be clearly wrong before it isoverturned; such construction, commonly referred to as practicalconstruction, although not controlling, is nevertheless entitled toGconsiderable weight; it is highly persuasive. In Baleshwar

2 In Lexico (a collaboration between Oxford University Press and Dictionary.com), it isstated that “the traditional distinction between the verbs enquire and inquire isthat enquire is to be used for general senses of ‘ask’, while inquire is reserved for usesmeaning ‘make formal investigation’”. (see https://www.lexico.com/grammar/enquire-Hor-inquire).

Bagarti v. Bhagirathi Dass [ILR 35 Cal 701 at 713] the principle,which was reiterated in Mathura Mohan Saha v. Ram KumarSaha [ILR 43 Cal 790] has been stated by Mookerjee, J., thus:

“It is well settled principle of interpretation that courts in construinga statute will give much weight to the interpretation put upon it, atthe time of its enactment and since, by those whose duty it hasbeen to construe, execute and apply it...I do not suggest for amoment that such interpretation has by any means controllingeffect upon the courts; such interpretation may, if occasion arises,have to be disregarded for cogent and persuasive reasons, and ina clear case of error, court would without hesitation refuse tofollow such construction.”

61. The officer referred to in section 42 is given powers of entry,search, seizure and arrest without warrant, with the safeguards thathave been pointed out hereinabove in this judgment.The first safeguardis that such officer must have “reason to believe”, which as has beennoted, is different from mere “reason to suspect”.It is for this reasonthat such officer must make an enquiry in connection with thecontravention of the provisions of this Act, for otherwise, even withoutsuch enquiry, mere suspicion of the commission of an offence would beenough. It is in this enquiry that he has to call for “information” undersub-clause (a), which “information” can be given by any person andtaken down in writing, as is provided in section 42(1). Further, theinformation given must be for the purpose of “satisfying” himself thatthere has been contravention of the provisions of this Act, which againgoes back to the expression “reason to believe” in section 42.This beingthe case, it is little difficult to accept Shri Lekhi’s argument that“enquiry” in section 67 is the same as “investigation”, which is referredto in section 53.Section 53 states:

“53. Power to invest officers of certain departments withpowers of an officer-in-charge of police station.—(1) TheCentral Government, after consultation with the State Government,may, by notification published in the Official Gazette, invest anyofficer of the department of central excise, narcotics, customs,revenue intelligence or any other department of the CentralGovernment including para-military forces or armed forces or anyclass of such officers with the powers of an officer-in-charge ofa police station for the investigation of the offences under thisAct.

A(2) The State Government may, by notification published in theOfficial Gazette, invest any officer of the department of drugscontrol, revenue or excise or any other department or any classof such officers with the powers of an officer-in-charge of policestation for the investigation of offences under this Act.”

B62. “Investigation” is defined under the CrPC in section 2(h) asfollows:

“(h) “investigation” includes all the proceedings under this Codefor the collection of evidence conducted by police officer or byany person (other than Magistrate) who is authorised by aCMagistrate in this behalf;”

63. By virtue of section 2(xxix) of the NDPS Act, this definitionbecomes applicable to the use of the expression “investigation” in section53 of the NDPS Act. It is important to notice that it is an inclusivedefinition, by which, “evidence” is collected by police officer or aDperson authorised by the Magistrate.The “enquiry” that is made by asection 42 officer is so that such officer may gather “information” tosatisfy himself that there is “reason to believe” that an offence has beencommitted in the first place.64. This becomes even clearer when section 52(3) of the NDPSEAct is read. Under section 52(3), every person arrested and article seizedunder sections 41 to 44 shall be forwarded without unnecessary delayeither to the officer-in-charge of the nearest police station, who mustthen proceed to “investigate” the case given to him, or to the officerempowered under section 53 of the NDPS Act, which officer then“investigates” the case in order to find out whether an offence has beenFcommitted under the Act.It is clear, therefore, thatsection 67 is at anantecedent stage to the “investigation”, which occurs after the concernedofficer under section 42 has “reason to believe”, upon informationgathered in an enquiry made in that behalf, that an offence has beencommitted.G65. Equally, when we come to section 67(c) of the NDPS Act,the expression used is “examine” any person acquainted with the factsand circumstances of the case. The “examination” of such person isagain only for the purpose of gathering information so as to satisfy himselfthat there is “reason to believe” that an offence has been committed.This can, by no stretch of imagination, be equated to “statement” underH

section 161 of the CrPC, as is argued by Shri Lekhi, relying upon Sahoov. State of U.P. (1965) 3 SCR 86 (at page 88), which would include themaking of confession, being sub-species of “statement”.

66. The consequence of accepting Shri Lekhi’s argument flies inthe face of the fundamental rights contained in Articles 20(3) and 21, aswell as the scheme of the NDPS Act, together with the safeguards thathave been set out by us hereinabove.First and foremost, even accordingto Shri Lekhi, police officer, properly so-called, may be authorised tocall for information etc. under section 67, as he is an officer referred toin section 42(1).Yet, while “investigating” an offence under the NDPSAct i.e. subsequent to the collection of information etc. under section67, the same police officer will be bound by sections 160-164 of theCrPC, together with all the safeguards mentioned therein – firstly, thatthe person examined shall be bound to answer truly all questions relatingto such case put to him, other than questions which would tend toincriminate him; secondly, the police officer is to reduce this statementinto writing and maintain separate and true record of this statement;thirdly, the statement made may be recorded by audio-video electronicmeans to ensure its genuineness; and fourthly, statement made by awoman can only be made to woman police officer or any womanofficer.Even after all these safeguards are met, no such statement canbe used at any inquiry or trial, except for the purpose of contradictingsuch witness in cross-examination.In Tahsildar Singh v. State ofU.P.,1959 Supp (2) SCR 875, Subba Rao J., speaking for four out of sixlearned Judges of this Court, had occasion to refer to the history ofsection 162 of the CrPC. After setting out this history in some detail, thelearned Judge held:

“It is, therefore, seen that the object of the legislature throughouthas been to exclude the statement of witness made before thepolice during the investigation from being made use of at the trialfor any purpose, and the amendments made from time to timewere only intended to make clear the said object and to dispel thecloud cast on such intention. The Act of 1898 for the first timeintroduced an exception enabling the said statement reduced towriting to be used for impeaching the credit of the witness in themanner provided by the Evidence Act. As the phraseology of theexception lent scope to defeat the purpose of the legislature, bythe Amendment Act of 1923, the section was redrafted definingthe limits of the exception with precision so as to confine it only to

contradict the witness in the manner provided under Section 145of the Evidence Act. If one could guess the intention of thelegislature in framing the section in the manner it did in 1923, itwould be apparent that it was to protect the accused against theuser of the statements of witnesses made before the police duringinvestigation at the trial presumably on the assumption that thesaid statements were not made under circumstances inspiringconfidence. Both the section and the proviso intended to serveprimarily the same purpose i.e., the interest of the accused.

(at pages 889 – 890)

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The object of the main section as the history of its legislationshows and the decided cases indicate is to impose general baragainst the use of statement made before the police and theenacting clause in clear terms says that no statement made byDany person to police officer or any record thereof, or any part ofsuch statement or record, be used for any purpose. The wordsare clear and unambiguous. The proviso engrafts an exception onthe general prohibition and that is, the said statement in writingmay be used to contradict witness in the manner provided bySection 145 of the Evidence Act. We have already noticed fromEthe history of the section that the enacting clause was mainlyintended to protect the interests of accused. At the state ofinvestigation, statements of witnesses are taken in haphazardmanner. The police officer in the course of his investigation findshimself more often in the midst of an excited crowd and babel ofFvoices raised all round. In such an atmosphere, unlike that in acourt of law, he is expected to hear the statements of witnessesand record separately the statement of each one of them. Generallyhe records only summary of the laments which appear to him tobe relevant. These statements are, therefore only summary ofwhat witness says and very often perfunctory. Indeed, in viewGof the aforesaid facts, there is statutory prohibition against policeofficers taking the signature of the person making the statement,indicating thereby that the statement is not intended to be bindingon the witness or an assurance by him that it is correct statement.

At the same time, it being the earliest record of the statement ofa witness soon after the incident, any contradiction found therein

would be of immense help to an accused to discredit the testimonyof witness making the statement. The section was, therefore,conceived in an attempt to find happy via media, namely, whileit enacts an absolute bar against the statement made before apolice officer being used for any purpose whatsoever, it enablesthe accused to rely upon it for limited purpose of contradicting awitness in the manner provided by Section 145 of the EvidenceAct by drawing his attention to parts of the statement intendedfor contradiction. It cannot be used for corroboration of aprosecution or defence witness or even court witness. Norcan it be used for contradicting defence or court witness.Shortly stated, there is general bar against its use subject to alimited exception in the interest of the accused, and the exceptioncannot obviously be used to cross the bar.”67. Under section 163(1) of the CrPC, no inducement, threat orpromise, as has been mentioned in section 24 of the Evidence Act, canbe made to extort such statement from person; and finally, if aconfession is to be recorded, it can only be recorded in the manner laiddown in section 164 i.e. before Magistrate, which statement is also tobe recorded by audio-video electronic means in the presence of theAdvocate of the person accused of an offence. This confession canonly be recorded after the Magistrate explains to the person making itthat he is not bound to make confession and that, if he does so, it maybe used as evidence against him – see section 164(2) of the CrPC. TheMagistrate is then to make memorandum at the foot of the record thathe has, in fact, warned the person that he is not bound to make suchconfession, and that it may be used as evidence against him – see section164(4) of the CrPC. Most importantly, the Magistrate is empowered toadminister oath to the person whose statement is so recorded – seesection 164(5) of the CrPC.

68. It would be remarkable that if police officer, properly so-called, were to “investigate” an offence under the NDPS Act, all thesafeguards contained in sections 161 to 164 of the CrPC would beavailable to the accused, but that if the same police officer or otherdesignated officer under section 42 were to record confessionalstatements under section67 of the NDPS Act, these safeguards wouldbe thrown to the winds, as was admitted by Shri Lekhi in the course of

Ahis arguments. Even if any such anomaly were to arise on strainedconstruction of section 67 as contended for by Shri Lekhi, the alternativeconstruction suggested by the Appellants, being in consonance withfundamental rights, alone would prevail, as section 67 would then haveto be “read down” so as to conform to fundamental rights.

B69. Take, for example, an investigation conducted by the regularpolice force of State qua person trafficking in ganja. If the sameperson were to be apprehended with ganja on subsequent occasion,this time not by the State police force but by other officers for the sameor similar offence, the safeguards contained in sections 161-164 of theCrPC would apply insofar as the first incident is concerned, but wouldCnot apply to the subsequent incident. This is because the second time,the investigation was not done by the State police force, but by otherofficers. The fact situation mentioned in the aforesaid example woulddemonstrate manifest arbitrariness in the working of the statute, leadingto situation where, for the first transaction, safeguards available underDthe CrPC come into play because it was investigated by the local Statepolice, as opposed to officers other than the local police who investigatedthe second transaction.

70. Take another example. If X & Y are part of drug syndicate,and X is apprehended in the State of Punjab by the local State policeEwith certain quantity of ganja, and Y is apprehended in the State ofMaharashtra by officers other than the State police, again with certainquantity of ganja which comes from the same source, the investigationby the State police in Punjab would be subject to safeguards containedin the CrPC, but the investigation into the ganja carried by Y toMaharashtra would be investigated without any such safeguards, owingFto the fact that an officer other than the local police investigated into theoffence. These anomalies are real and not imaginary, and if statute isso readas to give rise to such anomalies, it would necessarily have to bestruck down under Article 14 of the Constitution as being discriminatoryand manifestly arbitrary.G71. Further, the provisions of section 53A of the NDPS Act militatestrongly against Shri Lekhi’s argument. Section 53A states as follows:

“53A. Relevancy of statements under certaincircumstances.—(1) statement made and signed by personbefore any officer empowered under section 53 for the investigationHof offences, during the course of any inquiry or proceedings by

such officer, shall be relevant for the purpose of proving, in anyprosecution for an offence under this Act, the truth of the factswhich it contains,—

(a) when the person who made the statement is dead or cannotbe found, or is incapable of giving evidence, or is kept out of theway by the adverse party, or whose presence cannot be obtainedwithout an amount of delay or expense which, under thecircumstances of the case, the court considers unreasonable; or

(b) when the person who made the statement is examined as awitness in the case before the court and the court is of the opinionthat, having regard to the circumstances of the case, the statementshould be admitted in evidence in the interest of justice.

(2) The provisions of sub-section (1) shall, so far as may be, applyin relation to any proceedings under this Act or the rules or ordersmade thereunder, other than proceeding before court, as theyapply in relation to proceeding before court.”

72. If Shri Lekhi’s argument were correct, that confessionalstatement made under section 67is sufficient as substantive evidence toconvict an accused under the NDPS Act, section 53A would be renderedotiose. Sections 53 and 53A of the NDPS Act, when read together,wouldmake it clear thatsection 53A is in the nature of an exception to sections161, 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 ofan officer in charge of police station for investigation of offences underthe NDPS Act, refers to Chapter XII of the CrPC, of which sections161, 162 and 172 are part.First and foremost, under section 162(1) ofthe CrPC, statements that are made in the course of investigation arenot required to be signed by the person making them – under section53A they can be signed by the person before an officer empoweredunder section 53. Secondly, it is only in two circumstances [under section53A(1)(a) and (b)] that sucha statement is made relevant for the purposeof proving an offence against the accused: it is only if the person whomade the statement is dead, cannot be found, is incapable of givingevidence; or is kept out of the way by the adverse party, or whosepresence cannot be obtained without delay or expense which the courtconsiders unreasonable, that such statement becomes relevant. Otherwise,if the person who made such statement is examined as witness, andthe court thinks that in the interest of justice such statement should be

Amade relevant and does so, then again, such statement may becomerelevant.None of this would be necessary if Shri Lekhi’s argument wereright, that confessional statement made under section 67 – not beingbound by any of these constraints – would be sufficient to convict theaccused.B73. Shri Lekhi then relied strongly upon the recent ConstitutionBench judgment inMukesh Singh (supra).This judgment concerneditself with the correctness of the decision in Mohan Lal v. State ofPunjab, (2018) 17 SCC 627, which had taken the view that in case theinvestigation is conducted by the very police officer who is himself thecomplainant, the trial becomes vitiated as matter of law, and the accusedCis entitled to acquittal.In deciding this question, the Constitution Benchof this Court referred to various earlier judgments, in particular, thejudgment inState v. V. Jayapaul (2004) 5 SCC 223. After setting outthe relevant provisions of the CrPC, the Court concluded:“80…Thus, under the scheme of Cr.P.C., it cannot be said thatDthere is bar to police officer receiving information forcommission of cognizable offence, recording he same and theninvestigating it. On the contrary, Sections 154, 156 and 157 permitthe officer in charge of police station to reduce the informationof commission of cognizable offence in writing and thereafterto investigate the same.”

E74. The Court then set out the provisions of the NDPS Act andconcluded:

“89. Section 52 of the NDPS Act mandates that any officerarresting person under Sections 41, 42, 43 or 44 to inform theperson arrested of the grounds for such arrest. Sub-section 2 ofFSection 52 further provides that every person arrested and articleseized under warrant issued under sub-section 1 of Section 41shall be forwarded without unnecessary delay to the Magistrateby whom the warrant was issued. As per sub-section 3 of Section52, every person arrested and article seized under sub-section 2Gof Section 41, 42, 43, or 44 shall be forwarded without unnecessarydelay to the officer in charge of the nearest police station, or theofficer empowered under section 53.

90. That thereafterthe investigation is to be conducted by theofficer in charge of police station.”

(emphasis supplied)

75. The Court then went on to state:

“93. Section 53 does not speak that all those officers to beauthorised to exercise the powers of an officer in charge of apolice station for the investigation of the offences under the NDPSAct shall be other than those officers authorised under Sections41, 42, 43, and 44 of the NDPS Act. It appears that the legislaturein its wisdom has never thought that the officers authorised toexercise the powers under Sections 41, 42, 43 and 44 cannot bethe officer in charge of police station for the investigation of theoffences under the NDPS Act.

94. Investigation includes even search and seizure. As theinvestigation is to be carried out by the officer in charge of apolice station and none other and therefore purposely Section 53authorises the Central Government or the State Government, asthe case may be, invest any officer of the department of drugscontrol, revenue or excise or any other department or any classof such officers with the powers of an officer in charge of apolice station for the investigation of offences under the NDPSAct.

95. Section 42 confers power of entry, search, seizure and arrestwithout warrant or authorisation to any such officer as mentionedin Section 42 including any such officer of the revenue, drugscontrol, excise, police or any other department of StateGovernment or the Central Government, as the case may be, andas observed hereinabove, Section 53 authorises the CentralGovernment to invest any officer of the department of centralexcise, narcotics, customs, revenue intelligence or any otherdepartment of the Central Government….or any class of suchofficers with the powers of an officer in charge of police stationfor the investigation. Similar powers are with the StateGovernment. The only change in Sections 42 and 53 is that inSection 42 the word “police” is there, however in Section 53 theword “police” is not there. There is an obvious reason as forpolice such requirement is not warranted as he always can be theofficer in charge of police station as per the definition of an“officer in charge of police station” as defined under the Cr.P.C.”

76. On the basis of this judgment, Shri Lekhi argued that“investigation” under the NDPS Act includes search and seizure which

Ais to be done by section 42 officer and would, therefore, begin fromthat stage.

77. In this connection, it is important to advert first to the decisionof this Court in H.N. Rishbud and Inder Singh v. State of Delhi(1955) 1 SCR 1150. This judgment explains in great detail as to whatBexactly the scope of “investigation” is under the CrPC. It states:

“In order to ascertain the scope of and the reason for requiringsuch investigation to be conducted by an officer of high rank(except when otherwise permitted by Magistrate), it is useful toconsider what “investigation” under the Code comprises.CInvestigation usually starts on information relating to the commissionof an offence given to an officer in charge of police station andrecorded under Section 154 of the Code. If from information soreceived or otherwise, the officer in charge of the police stationhas reason to suspect the commission of an offence, he or someother subordinate officer deputed by him, has to proceed to theDspot to investigate the facts and circumstances of the case and ifnecessary to take measures for the discovery and arrest of theoffender. Thus investigation primarily consists in the ascertainmentof the facts and circumstances of the case. By definition, it includes“all the proceedings under the Code for the collection of evidenceEconducted by police officer”. For the above purposes, theinvestigating officer is given the power to require before himselfthe attendance of any person appearing to be acquainted with thecircumstances of the case. He has also the authority to examinesuch person orally either by himself or by duly authorised deputy.The officer examining any person in the course of investigationFmay reduce his statement into writing and such writing is available,in the trial that may follow, for use in the manner provided in thisbehalf in Section 162. Under Section 155 the officer in charge ofa police station has the power of making search in any place forthe seizure of anything believed to be necessary for the purposeGof the investigation.The search has to be conducted by such officerin person. subordinate officer may be deputed by him for thepurpose only for reasons to be recorded in writing if he is unableto conduct the search in person and there is no other competentofficer available.The investigating officer has also the power toarrest the person or persons suspected of the commission of theHoffence under Section 54 of the Code. police officer making aninvestigation is enjoined to enter his proceedings in diary fromday-to-day. Where such investigation cannot be completed withinthe period of 24 hours and the accused is in custody he is enjoinedalso to send copy of the entries in the diary to the Magistrateconcerned. It is important to notice that where the investigation isconducted not by the officer in charge of the police station but bya subordinate officer (by virtue of one or other of the provisionsenabling him to depute such subordinate officer for any of thesteps in the investigation) such subordinate officer is to report theresult of the investigation to the officer in charge of the policestation. If, upon the completion of the investigation it appears tothe officer in charge of the police station that there is no sufficientevidence or reasonable ground, he may decide to release thesuspected accused, if in custody, on his executing bond. If,however, it appears to him that there is sufficient evidence orreasonable ground, to place the accused on trial, he is to take thenecessary steps therefore under Section 170 of the Code. In eithercase, on the completion of the investigation he has to submit areport to the Magistrate under Section 173 of the Code in theprescribed form furnishing various details. Thus, under the Codeinvestigation consists generally of the following steps: (1)Proceeding to the spot, (2) Ascertainment of the facts andcircumstances of the case, (3) Discovery and arrest of thesuspected offender, (4) Collection of evidence relating to thecommission of the offence which may consist of (a) theexamination of various persons (including the accused) and thereduction of their statements into writing, if the officer thinks fit,(b) the search of places or seizure of things considered necessaryfor the investigation and to be produced at the trial, and (5)Formation of the opinion as to whether on the material collectedthere is case to place the accused before Magistrate for trialand if so taking the necessary steps for the same by the filing of acharge-sheet under Section 173. The scheme of the Code alsoshows that while it is permissible for an officer in charge of apolice station to depute some subordinate officer to conduct someof these steps in the investigation, the responsibility for every oneof these steps is that of the person in the situation of the officer incharge of the police station, it having been clearly provided inSection 168 that when subordinate officer makes an investigationhe should report the result to the officer in charge of the police

DEF

Astation. It is also clear that the final step in the investigation, viz.the formation of the opinion as to whether or not there is case toplace the accused on trial is to be that of the officer in charge ofthe police station.There is no provision permitting delegation thereofbut only provision entitling superior officers to supervise orparticipate under Section 551.”B

(at pages 1156-1158)

This statement of the law was reiterated in State of MadhyaPradesh v. Mubarak Ali (1959) Supp. 2 SCR 201 at 211, 212.

78. It is important to remember that an officer-in-charge of aCpolice station, when he investigates an offence, begins by gatheringinformation, in the course of which he may collect evidence relating tothe commission of the offence, which would include search and seizureof things in the course of investigation, to be produced at the trial. Underthe scheme of the NDPS Act, it is possible that the same officer who isDauthorised under section 42 is also authorised undersection 53.In pointof fact, Notification S.O. 822(E) issued by the Ministry of Finance(Department of Revenue), dated 14.11.1985, empowered the followingofficers under section 42 and 67 of the NDPS Act:“S.O. 822(E).-In exercise of the powers conferred by sub-sectionE(1) of section 42 and section 67 of the Narcotic Drugs andPsychotropic Substances Act, 1985 (61 of 1985), the CentralGovernment hereby empowers the officers of and above the rankof Sub-Inspector in the department of Narcotics and of and abovethe rank of Inspector in the departments of Central Excise, Customsand Revenue Intelligence and in Central Economic IntelligenceFBureau and Narcotics Control Bureau to exercise of the powersand perform the duties specified in section 42 within the area oftheir respective jurisdiction and also authorises the said officersto exercise the powers conferred upon them under section 67.”

79. Notification S.O.823(E), also dated 14.11.1985, the MinistryGof Finance (Department of Revenue), empowered the following officersunder section 53(1) of the NDPS Act:

“S.O. 823(E).-In exercise of the powers conferred by sub-section(1) of section 53 of the Narcotic Drugs and PsychotropicSubstances Act, 1985 (61 of 1985), the Central Government, afterHconsultation with all the State Governments hereby invests the

officers of and above the rank of Inspector in the Departments ofCentral Excise, Narcotics, Customs and Revenue Intelligence andin Central Economic Intelligence Bureau and Narcotics ControlBureau with the powers specified in sub-section (1) of thatsection.”

80. These notifications indicate that officers of and above therank of Inspector in the Departments of Central Excise, Customs,Revenue Intelligence, Central Economic Intelligence Bureau andNarcotics Control Bureau were authorised to act under both sections 42and 53. These notifications dated 14.11.1985 were superseded by thefollowing notifications issued by the Ministry of Finance (Department ofRevenue) on 30.10.2019:

“S.O. 3901(E).—In exercise of the powers conferred by sub-section (1) of section 42 and section 67 of the Narcotic Drugsand Psychotropic Substances Act, 1985 (61 of 1985), and insupersession of the notification of the Government of India in theMinistry of Finance, Department of Revenue number S.O. 822(E),dated the 14th November, 1985, published in the Gazette of India,Extraordinary, Part II, Section 3, Sub-section (ii), except asrespects things done or omitted to be done before suchsupersession the Central Government hereby empowers theofficers of and above the rank of sub-inspector in Central Bureauof Narcotics and Junior Intelligence Officer in Narcotics ControlBureau and of and above the rank of inspectors in the CentralBoard of Indirect Taxes and Customs, Directorate of RevenueIntelligence, Central Economic Intelligence Bureau to exercisethe powers and perform the duties specified in section 42 withinthe area of their respective jurisdiction and also authorise the saidofficers to exercise the powers conferred upon them under section67.”

“S.O. 3899(E).—In exercise of the powers conferred by sub-section (1) of section 53 of the Narcotic Drugs and PsychotropicSubstances Act, 1985 (61 of 1985) and in supersession of thenotification of the Government of India in the Ministry of Finance,Department of Revenue number S.O. 823(E), dated the 14thNovember, 1985, published in the Gazette of India, Extraordinary,Part II, Section 3, Sub-section (ii), except as respects things doneor omitted to be done before such supersession, the Central

AGovernment after consultation with all the State Governmentshereby invests the officers of and above the rank of inspectors inthe Central Board of Indirect Taxes and Customs, Central Bureauof Narcotics, Directorate of Revenue Intelligence, CentralEconomic Intelligence Bureau and of and above the rank of JuniorIntelligence Officer in Narcotics Control Bureau with the powersBspecified in sub-section (1) of that section.”

81. Thus, even the new notifications dated 30.10.2019 indicatethat the powers under sections 42 and 53 of the NDPS Act are investedin officers of and above the rank of inspectors in the Central Board ofIndirect Taxes and Customs, Central Bureau of Narcotics, DirectorateCof Revenue Intelligence, Central Economic Intelligence Bureau and ofand above the rank of Junior Intelligence Officer in Narcotics ControlBureau.

82. The observations of the Constitution Bench in Mukesh Singh(supra) are, therefore, to the effect that the very person who initiatesDthe detection of crime, so to speak, can also investigate into the offence– there being no bar under the NDPS Act for doing so. This is far cryfrom saying that the scheme of the NDPS Act leads to the conclusionthat section 67 confessional statement, being in the course ofinvestigation, would be sufficient to convict person accused of anEoffence.

83. As has been pointed out hereinabove, there could be situationin which section 42 officer, as designated, is different from section53 officer,in which case, it would be necessary for the section 42 officerto first have “reason to believe” that an offence has been committed, forFthe purpose of which he gathers information, which is then presentednot only to his superior officer under section 42(2), but also presented toeither an officer-in-charge of police station, or to an officer designatedunder section 53 – see section 52(3). This was clearly recognised by theConstitution Bench in Mukesh Singh (supra) when it spoke of therequirements under section 52(2) and (3) being met, and “investigation”Gbeing conducted thereafterby the officer in charge of police station.

84. Take hypothetical case where an officer is designated undersection 42, but there is no designation of any officer under section 53 toconduct investigation.In such case, the section 42 officer would notconduct any investigation at all – he would only gather facts which giveHhim “reason to believe” that an offence has been committed, in pursuance

of which he may use the powers given to him under section 42. Afterthis, for “investigation” into the offence under the NDPS Act, the onlyroute in the absence of designated officer under section 53, would befor him to present the information gathered to an officer-in-charge of apolice station, who would then “investigate” the offence under the NDPSAct.

85. Also, we must bear in mind the fact that the ConstitutionBench’s focus was on completely different point, namely, whether thecomplainant and the investigator of an offence could be the same. Fromthe point of view of this question, section 53A of the NDPS Act is notrelevant and has, therefore, not been referred to by the ConstitutionBench. As has been pointed out by us hereinabove, in order to determinethe questions posed before us, section 53A becomes extremely important,and would, as has been pointed out by us, be rendered otiose if ShriLekhi’s submission, that statement under section 67 is sufficient toconvict an accused of an offence under the Act, is correct. For all thesereasons, we do not accede either to Shri Puneet Jain’s argument to referMukesh Singh (supra) to larger Bench for reconsideration, or to ShriLekhi’s argument based on the same judgment, as the point involved inMukesh Singh (supra) was completely different from the one beforeus.

WHETHER AN OFFICER DESIGNATED UNDERSECTION 53 OF THE NDPS ACT CAN BE SAID TO BE

POLICE OFFICER

86. We now come to the question as to whether the officerdesignated under section 53 of the NDPS Act can be said to be “policeofficer” so as to attract the bar contained in section 25 of the EvidenceAct.

87. The case law on the subject of who would constitute a”policeofficer” for the purpose of section 25 of the Evidence Act begins withthe judgment of this Court in Barkat Ram (supra).In this judgment, by a2:1 majority, this Court held that Customs Officer under the LandCustoms Act, 1924 is not “police officer” within the meaning of section25 of the Evidence Act. The majority judgment of Raghubar Dayal, J.first set out section 9 of the Land Customs Act as follows:

“”The provisions of the Sea Customs Act, 1878 (VIII of 1878),which are specified in the Schedule, together with all notifications,

orders, rules or forms issued, made or prescribed, thereunder, shall,so far as they are applicable, apply for the purpose of the levy ofduties of land customs under this Act in like manner as they applyfor the purpose of the levy of duties of customs on goods importedor exported by sea.”

Among the sections of the Sea Customs Act made applicable bysub-s. (1) of s. 9 of the Land Customs Act, are included all thesections in Chapters XVI and XVII of the Sea Customs Act viz.ss.167 to 193.”

(at page 342)

C88. The Court then examined the Police Act, 1861, and found:

“The Police Act, 1861 (Act 5 of 1861), is described as an Act forthe regulation of police, and is thus an Act for the regulation ofthat group of officers who come within the word ‘police’ whatevermeaning be given to that word. The preamble of the Act furtherDsays: ‘whereas it is expedient to re-organise the police and tomake it more efficient instrument for the prevention and detectionof crime, it is enacted as follows’. This indicates that the police isthe instrument for the prevention and detection of crime whichcan be said to be the main object and purpose of having the police.ESections 23 and 25 lay down the duties of the police officers andSection 20 deals with the authority they can exercise. They canexercise such authority as is provided for police officer underthe Police Act and any Act for regulating criminal procedure. Theauthority given to police officers must naturally be to enable themto discharge their duties efficiently. Of the various duties mentionedFin s. 23, the more important duties are to collect and communicateintelligence affecting the public peace, to prevent the commissionof offences and public nuisances and to detect and bring offendersto justice and to apprehend all persons whom the police officer islegally authorised to apprehend. It is clear, therefore, in view ofGthe nature of the duties imposed on the police officers, the natureof the authority conferred and the purpose of the Police Act, thatthe powers which the police officers enjoy are powers for theeffective prevention and detection of crime in order to maintainlaw and order.

The powers of Customs Officers are really not for such purpose.Their powers are for the purpose of checking the smuggling of

goods and the due realisation of customs duties and to determinethe action to be taken in the interests of the revenues of the countryby way of confiscation of goods on which no duty had been paidand by imposing penalties and fines.

Reference to s.9(1) of the Land Customs Act may be usefullymade at this stage. It is according to the provisions of this sub-section that the provisions of the Sea Customs Act and the orders,Rules etc. prescribed thereunder, apply for the purpose of levy ofduties of land customs under the Land Customs Act in like manneras they apply for the purpose of levy of duties of customs ongoods imported or exported by sea. This makes it clear that theprovisions conferring various powers on the Sea Customs Officersare for the purpose of levying and realisation of duties of customson goods and that those powers are conferred on the LandCustoms Officers also for the same purpose. Apart from such anexpression in Section 9(1) of the Land Customs Act, there aregood reasons in support of the view that the powers conferred onthe Customs Officers are different in character from those of thepolice officers for the detection and prevention of crime and thatthe powers conferred on them are merely for the purpose ofensuring that dutiable goods do not enter the country withoutpayment of duty and that articles whose entry is prohibited arenot brought in. It is with respect to the detecting and preventing ofthe smuggling of goods and preventing loss to the CentralRevenues that Customs Officers have been given the power tosearch the property and person and to detain them and to summonpersons to give evidence in an enquiry with respect to the smugglingof goods.

The preamble of the Sea Customs Act says: “Whereas it isexpedient to consolidate and amend the law relating to the levy ofSea Customs-duties”. Practically, all the provisions of the Act areenacted to achieve this object.”

(pages 343-344)

“The Customs Officer, therefore, is not primarily concerned withthe detection and punishment of crime committed by person,but is mainly interested in the detection and prevention of smugglingof goods and safeguarding the recovery of customs duties. He is

[2020] 12 S.C.R.

Amore concerned with the goods and customs duty, than with theoffender.”

(page 345)

89. In an important passage, the Court then concluded that sincethe expression “police officer” is not defined, it cannot be construed in aBnarrow way, but must be construed in “wide and popular sense”, asfollows:

“There seems to be no dispute that person who is member ofthe police force is police officer. person is member of thepolice force when he holds his office under any of the Acts dealingCwith the police. person may be member of the police in anyother country. Officers of the police in the erstwhile Indian Statesand an officer of the police of foreign country have been held incertain decided cases to be police officers within the meaning ofSection 25 of the Evidence Act. There is no denying that theseDpersons are police officers and are covered by that expression inSection 25. That expression is not restricted to the police-officersof the police forces enrolled under the Police Act of 1861. Theword ‘police is defined in S.1 and is said to include all personswho shall be enrolled under the Act. No doubt this definition is notrestrictive, as it uses the expression ‘includes’, indicating therebyEthat persons other than those enrolled under that Act can also becovered by the word “police”.

Sections 17 and 18 of the Police Act provide for the appointmentof special police officers who are not enrolled under the Act butare appointed for special occasions and have the same powers,Fprivileges and protection and are liable to perform the same dutiesas the ordinary officers of the police.

Section 21 also speaks of officers who are not enrolled as policeofficers and in such categories mentions hereditary or other villagepolice officers.

The words ‘police officer’ are therefore not to be construed in anarrow way, but have to be construed in wide and popular sense,as was remarked in R. v. Hurribole [ILR 1 Cal 207] where aDeputy Commissioner of police who was actually police officerand was merely invested with certain Magisterial powers was

rightly held to be police officer within the meaning of thatexpression in Section 25 of the Evidence Act.”

(at pages 347-348)

90. The Court then held, in significant passage, that confessionmade to any member of the police – of whatever rank –is interdicted bysection 25 of the Evidence Act, as follows:

“The police officer referred to in Section 25 of the Evidence Act,need not be the officer investigating into that particular offence ofwhich person is subsequently accused. confession made tohim need not have been made when he was actually dischargingany police duty. Confession made to any member of the police, ofwhatever rank and at whatever time, is inadmissible in evidencein view of Section 25.”

(at page 349)

91. The Court then found:

“The powers of search etc., conferred on the former are, as wasobserved in Thomas Dana’s case [(1959) Supp (1) SCR 274, 289]of limited character and have limited object of safeguardingthe revenues of the State.

It is also to be noticed that the Sea Customs Act itself refers topolice officer in contradistinction to the Customs Officer. Section180 empowers police officer to seize articles liable to confiscationunder the Act, on suspicion that they had been stolen. Section 184provides that the officer adjudging confiscation shall take and holdpossession of the thing confiscated and every officer of police, onrequest of such officer, shall assist him in taking and holding suchpossession. This leaves no room for doubt that Customs Officeris not an officer of the Police.

It is well-settled that the Customs Officer, when they act underthe Sea Customs Act to prevent the smuggling of goods byimposing confiscation and penalties, act judicially: Leo RoyFrey v. Superintendent District Jail, Amritsar [1958 SCR822]; Shewpujanrai Indrasanrai Ltd. v. Collector ofCustoms [1959 SCR 821]. Any enquiry under Section 171-A isdeemed to be judicial proceeding within the meaning of Sections193 and 228 IPC, in view of its sub-section (4). It is under the

Aauthority given by this section that the Customs Officers can takeevidence and record statements. If the statement which is recordedby Customs Officer in the exercise of his powers under thissection be an admission of guilt, it will be too much to say that thatstatement is confession to police officer, as police officernever acts judicially and no proceeding before police officer isBdeemed, under any provision so far as we are aware, to be ajudicial proceeding for the purpose of Sections 193 and 228 IPC,or for any purpose. It is still less possible to imagine that thelegislature would contemplate such person, whose proceedingsare judicial for certain purpose, to be person whose record ofCstatements made to him could be suspect if such statement be ofa confessional nature.”

(at page 350-351)

92. The majority concluded:

D“We make it clear, however, that we do not express any opinionon the question whether officers of departments other than thepolice, on whom the powers of an Officer-in-charge of PoliceStation under Chapter XIV of the Code of Criminal Procedure,have been conferred, are police officers or not for the purpose ofSection 25 of the Evidence Act, as the learned counsel for theEappellant did not question the correctness of this view for thepurpose of this appeal.”

(at page 352)

93. Subba Rao, J. dissented. He made neat division of “policeFofficer” into three categories as follows:

“It may mean any one of the following categories of officers: (i)a police officer who is member of the police force constitutedunder the Police Act; (ii) though not member of the police forceconstituted under the Police Act, an officer who by statutory fictionis deemed to be police officer in charge of police station underthe Code of Criminal Procedure; and (iii) an officer on whom astatute confers powers and imposes duties of police officer underthe Code of Criminal Procedure, without describing him as policeofficer or equating him by fiction to such an officer.”

(at page 355)

94. He then referred to the “high purpose” of section 25 as follows:

“It is, therefore, clear that Section 25 of the Evidence Act wasenacted to subserve high purpose and that is to prevent thepolice from obtaining confessions by force, torture or inducement.The salutary principle underlying the section would apply equallyto other officers, by whatever designation they may be known,who have the power and duty to detect and investigate into crimesand is for that purpose in position to extract confessions fromthe accused.”

(at page 357)

“It is not the garb under which they function that matters, but thenature of the power they exercise or the character of the functionthey perform is decisive. The question, therefore, in each case is,does the officer under particular Act exercise the powers anddischarge the duties of prevention and detection of crime? If hedoes, he will be police officer.”

(at page 358)

95. After referring to various High Court judgments whichcontained the “broad view” – i.e. Bombay, Calcutta and Madras, whichwould include all three classes of police officers referred to, as againstthe “narrow view” of the Patna High Court, where only person who isdesignated as police officer under the Police Act, 1861 was acceptedto be police officer under section 25 of the Evidence Act, Subba Rao,J., then finally concluded that, given the functional test and the object ofsection 25, customs officer would be “police officer” properly socalled.

96. (1) The majority view in this judgment first emphasised thepoint that the Land Customs Act, 1924 and the Sea Customs Act, 1878were statutes primarily concerned with the levy of duties of customs,and ancillary to this duty, officers designated in those Acts are givencertain powers to check smuggling of goods for due realisation of customsduties.In significant sentence, the Court, therefore, stated that customsofficer is more concerned with the goods and customs duty than withthe offender. (2) The persons who are not enrolled as “police” under thePolice Act, 1861, would be included as “police” under the inclusivedefinition contained in that Act, leading to the acceptance of the “broadview” and rejection of the “narrow view” of the meaning of “police

Aofficer”.(3)The protection of section 25 of the Evidence Act is verywide, and applies to confession made to any member of the policewhatever his rank, and at whatever time it is made, whether before orafter being accused of an offence. (4)That the powers of search, seizure,etc. that are conferred under the Land Customs Act are of limitedcharacter, for the limited object of safeguarding the revenues of theBState.(5)That section 171A of the Sea Customs Act, 1878 whichempowers the customs officer to summon person to give evidence, orproduce document in an enquiry which he makes, is judicialenquiry– as result, customs officer can never be said to be police officeras police officer never acts judicially.(6)The precise question withCwhich we are concerned in this case, namely, whether officers ofdepartments other than the police on whom the powers of an officer-in-charge of police station under Chapter XIV of the CrPC have beenconferred are police officers within the meaning of section 25 of theEvidence Act, was expressly left open.

D97. In Raja Ram Jaiswal (supra), this time majority of 2:1 ofthis Court held that confession made to an Excise Inspector under theBihar and Orissa Excise Act of 1915, would be confession made to apolice officer for the purpose of section 25 of the Evidence Act. Themajority judgment of Mudholkar, J. referred to Barkat Ram(supra)andheld:E

“It has, however, been held in large number of cases, includingthe one decided by this court, The State of Punjab v. BarkatRam [(1962) 3 SCR p. 338] that the words “Police Officer” to befound in Section 25 of the Evidence Act are not to be construed ina narrow way but have to be construed in wide and popularFsense. Those words, according to this Court, are however not tobe construed in so wide sense as to include persons on whomonly some of the powers exercised by the police are conferred.”

(page 761)

G98. Barkat Ram (supra) was again referred to, stating that thequestion which was before the Court was expressly left open by themajority in that case, and it is precisely this question that arose in thiscase – see page 762. The Court then held:

“It is precisely this question which falls for consideration in thepresent appeal. For, under Section 78(3) of the Bihar and OrissaH

Excise Act, 1915 (2 of 1915) an Excise Officer empowered underSection 77, sub-section (2) of that Act shall, for the purpose ofSection 156 of the Code of Criminal Procedure be deemed to bean officer in charge of police station with respect to the area towhich his appointment as an Excise Officer extends. Sub-section(1) of Section 77 empowers the Collector of Excise to investigatewithout the order of Magistrate any offence punishable underthe Excise Act committed within the limits of his jurisdiction. Sub-section (2) of that section provides that any other Excise Officerspecially empowered behalf in this by the State Government inrespect of all or any specified class of offences punishable underthe Excise Act may, without the order of Magistrate, investigateany such offence which court having jurisdiction within the localarea to which such officer is appointed would have power toenquire into or try under the aforesaid provisions. By virtue ofthese provisions the Lieutenant Governor of Bihar and Orissa byNotification 470-F dated 15-1-1919 has specially empoweredInspectors of Excise and Sub-Inspectors of Excise to investigateany offence punishable under the Act. It is not disputed before usthat this notification is still in force. By virtue of the provisions ofSection 92 the Act it shall have effect as if enacted in the Act. Itwould thus follow that an Excise Inspector or Sub-Inspector inthe State of Bihar shall be deemed to be an officer in charge of apolice station with respect to the area to which he is appointedand is in that capacity entitled to investigate any offence underthe Excise Act within that area without the order of Magistrate.Thus he can excise all the powers which an officer in charge of apolice station can exercise under Chapter XIV of the Code ofCriminal Procedure. He can investigate into offences, recordstatements of the persons questioned by him, make searches, seizeany articles connected with an offence under the Excise Act,arrest an accused person, grant him bail, send him up for trial-before Magistrate, file chargesheet and so on. Thus his positionin so far as offences under the Excise Act committed within thearea to which his appointment extends are concerned is nodifferent from that of an officer in charge of police station. Asregards these offences not only is he charged with the duty ofpreventing their commission but also with their detection and isfor these purposes empowered to act in all respects as an officer

DEF

Ain charge of police station. No doubt unlike an officer in chargeof police station he is not charged with the duty of themaintenance of law and order nor can he exercise the powers ofsuch officer with respect to offences under the general law orunder any other special laws. But all the same, in so far as offencesunder the Excise Act are concerned, there is no distinctionBwhatsoever in the nature of the powers he exercises and thosewhich police officer exercises in relation to offences which it ishis duty to prevent and bring to light. It would be logical, therefore,to hold that confession recorded by him during an investigationinto an excise offence cannot reasonably be regarded as anythingCdifferent from confession to police officer. For, in conductingthe investigation he exercises the powers of police officer andthe act itself deems him to be police officer, even though hedoes not belong to the police force constituted under the PoliceAct.It has been held by this court that the expression “policeofficer” in Section 25 of the Evidence Act is not confined to personsDwho are members of the regularly constituted police force. Theposition of an Excise Officer empowered under Section 77(2) ofthe Bihar and Orissa Excise Act is not analogous to that of aCustoms Officer for two reasons. One is that the Excise Officer,does not exercise any judicial powers just as the Customs OfficerEdoes under the Sea Customs Act, 1878. Secondly, the CustomsOfficer is not deemed to be an officer in charge of police stationand therefore can exercise no powers under the Code of CriminalProcedure and certainly not those of an officer in charge of apolice station. No doubt, he too has the power to make search,to seize articles suspected to have been smuggled and arrestFpersons suspected of having committed an offence under the SeaCustoms Act. But that is all. Though he can make an enquiry, hehas no power to investigate into an offence under Section 156 ofthe Code of Criminal Procedure. Whatever powers he exercisesare expressly set out in the Sea Customs Act. Though some ofGthose set out in Chapter XVII may be analogous to those of apolice officer under the Code of Criminal Procedure they are notidentical with those of police officer and are not derived from orby reference to the Code. In regard to certain matters, he doesnot possess powers even analogous to those of Police Officer.Thus he is not entitled to submit report to Magistrate underHSection 190 of the Code of Criminal Procedure with view that

cognizance of the offence be taken by the Magistrate. Section187(A) of the Sea Customs Act specially provides that cognizanceof an offence under the Sea Customs Act can be taken only upona complaint in writing made by the Customs Officers or otherofficer of the customs not below the rank of an Assistant Collectorof Customs authorised in this behalf by the Chief Customs Officer.

It may well be that statute confers powers and impose duties ona public servant, some of which are analogous to those of policeofficer. But by reason of the nature of other duties which he isrequired to perform he may be exercising various other powersalso. It is argued on behalf of the State that where such is thecase the mere conferral of some only of the powers of policeofficer on such person would not make him police officer and,therefore, what must be borne in mind is the sum total of thepowers which he enjoys by virtue of his office as also the dominantpurpose for which he is appointed. The contention thus is thatwhen an officer has to perform wide range of duties and exercisecorrespondingly wide range of powers, the mere fact that someof the powers which the statute confers upon him are analogousto or even identical with those of police officer would not makehim police officer and, therefore, if such an officer records aconfession it would not be hit by Section 25 of the Evidence Act.In our judgment what is pertinent to bear in mind for the purposeof determining as to who can be regarded “police officer” forthe purpose of this provision is not the totality of the powers whichan officer enjoys but the kind of powers which the law enableshim to exercise. The test for determining whether such personis “police officer” for the purpose of Section 25 of the EvidenceAct would, in our judgment, be whether the powers of policeofficer which are conferred on him or which are exercisable byhim because he is deemed to be an officer in charge of policestation establish direct or substantial relationship with theprohibition enacted by Section 25, that is, the recording of aconfession. In our words, the test would be whether the powersare such as would to facilitate the obtaining by him of confessionfrom suspect or delinquent. If they do, then it is unnecessary toconsider the dominant purpose for which he is appointed or thequestion as to what other powers he enjoys. These questions mayperhaps be relevant for consideration where the powers of the

Apolice officer conferred upon him are of very limited characterand are not by themselves sufficient to facilitate the obtaining byhim of confession.

(at pages 762-766)

99. In significant sentence, the Court held:B

“It is the power of investigation which establishes directrelationship with the prohibition enacted in Section 25.”

(at page 768)

100. After referring to the object sought to be achieved by sectionC25, the Court went on to hold:

“This provision was thus enacted to eliminate from considerationconfessions made to an officer who, by virtue of his position, couldextort by force, torture or inducement confession. An ExciseOfficer acting under Section 78(3) would be in the same positionDas an Officer in charge of police station making an investigationunder Chapter XIV of the Code of Criminal Procedure. He wouldlikewise have the same opportunity of extorting confession froma suspect. It is, therefore, difficult to draw rational distinctionbetween confession recorded by police officer strictly so calledand recorded by an Excise Officer who is deemed to be policeEofficer.”

(at page 769)

101. The Court abjured shortcuts to obtaining convictions underthe Act as follows:F

“We agree with the learned Judge that by and large it is the dutyof detection of offences and of bringing offenders to justice, whichrequiresan investigation to be made, that differentiates policeofficers from private individuals or from other agencies of State.Being concerned with the investigation, there is naturally desireGon the part of police officer to collect as much evidence aspossible against suspected offender apprehended by him and inhis zeal to do so he is apt to take recourse to an easy means, thatis, of obtaining confession by using his position and his powerover the person apprehended by him.”

(at page 776)

102. The majority ended the judgment by stating:

“There is one more reason also why the confession made to anExcise Sub-Inspector must be excluded, that is, it is statementmade during the course of investigation to person who exercisesthe powers of an officer in charge of police station. Suchstatement is excluded from evidence by Section 162 of the Codeof Criminal Procedure except for the purpose of contradiction.

Therefore, both by Section 25 of the Evidence Act as well as bySection 162 CrPC the confession of the appellant is inadmissiblein evidence. If the confession goes, then obviously the convictionof the appellant cannot be sustained. Accordingly we allow theappeal and set aside the conviction and sentences passed on theappellant.”

(page 778-779)

103. Raghubar Dayal, J. dissented. His dissent contains usefulsummary of Barkat Ram (supra) as follows:

“In State of Punjab v. Barkat Ram this Court held that customsofficer is not police officer within the meaning of Section 25 ofthe Evidence Act. The view was based on the followingconsiderations:

(1) The powers which police officer enjoys are powers for theeffective prevention and detection of crime in order to maintainlaw and order while customs officer is not primarily concernedwith the detection and punishment of crime committed by personbut is mainly interested in the detection and prevention of smugglingof goods and safeguarding the recovery of customs duties.

(2) The mere fact that customs officers possess certain powerssimilar to those of police officers in regard to detection of infractionsof customs laws, is not sufficient ground for holding them to bepolice officers within the meaning of Section 25 of the EvidenceAct, even though the word “police officer” are not to be construedin narrow way but have to be construed in wide and popularsense, as remarked in Queen v. Hurribole. The expression “policeofficer” is not of such wide meaning as to include persons onwhom certain police powers are incidentally conferred.

(3) confession made to any police officer, whatever be his rankand whatever be the occasion for making it, is inadmissible in

evidence but confession made to customs officer when he benot discharging any such duty which corresponds to the duty of apolice officer will be inadmissible even if the other view be correctthat he was police officer when exercising such powers.

(4) The Sea Customs Act itself refers to “police officer” incontradistinction to Customs Officer.

(5) Customs Officers act judicially when they act under the SeaCustoms Act to prevent smuggling of goods and imposingconfiscation and Penalties, and proceedings before them arejudicial proceeding for purpose of Sections 193 and 228 IPC.”

(at pages 779-780)

104. The minority judgment held:

“I therefore hold that the Excise Inspector and Sub-Inspectorempowered by the State Government under Section 77(2) of theDAct are not police officers within the meaning of Section 25 ofthe Evidence Act and that the aforesaid officers cannot be treatedto be police officers for the purposes of Section 162 of the Codeof Criminal Procedure. Section 162 does not confer any poweron police officer. It deals with the use which can be made of thestatements recorded by police officer carrying out investigationEunder Chapter XIV of the Code. The investigation which theaforesaid Excise Officer conducts is not under Chapter XIV ofthe Code, but is under the provisions of the Act and therefore thisis further reason for the non-applicability of Section 162 CrPCto any statements made by person to an Excise Officer duringFthe course of his investigating an offence under the Act.”

(at page 808)

105. The test laid down by the majority in Raja RamJaiswal(supra)for determining whether person is police officer undersection 25 of the Evidence Act, is whether direct or substantialGrelationship with the prohibition enacted by section 25 is established,namely, whether powers conferred are such as would tend to facilitatethe obtaining by such officer of confession from suspect or delinquent,and this happens if power of investigation, which culminates in policereport, is given to such officer.

106. Both these judgments came to be considered in theConstitution Bench judgment in Badku Joti Savant (supra). In thiscase, the appellant was prosecuted under the Central Excise and SaltAct, 1944. The Court expressly left open the question as to whether the“broader” or “narrower” meaning of police officer, as deliberated in theaforementioned two judgments, is correct.It proceeded on the footingthat the broad view may be accepted to test the statute in question – seepages 701, 702. The Court referred to the main purpose of the CentralExcise Act as follows:

“The main purpose of the Act is to levy and collect excise dutiesand Central Excise Officers have been appointed thereunder forthis main purpose. In order that they may carry out their duties inthis behalf, powers have been conferred on them to see that dutyis not evaded and persons guilty of evasion of duty are brought tobook.

xxx xxxxxx

Section 19 lays down that every person arrested under the Actshall be forwarded without delay to the nearest Central ExciseOfficer empowered to send persons so arrested to Magistrate,or, if there is no such Central Excise Officer within reasonabledistance, to the officer-in-charge of the nearest police station.These sections clearly show that the powers of arrest and searchconferred on Central Excise Officers are really in support of theirmain function of levy and collection of duty on excisable goods.”

(at page 702)

107. Section 21 of the Central Excise Act, 1944 was then set outas follows:

“21.(1) When any person is forwarded under section 19 to aCentral Excise Officer empowered to send persons so arrestedto Magistrate, the Central Excise Officer shall proceed to inquireinto the charge against him.

(2) For this purpose the Central Excise Officer may exercise thesame powers and shall be subject to the same provisions as theofficer-in-charge of police station may exercise and is subjectto under the Code of Criminal Procedure, 1898, when investigatinga cognizable case;

AProvided that-

(a) if the Central Excise Officer is of opinion that there is sufficientevidence or reasonable ground of suspicion against theaccused person, he shall either admit him to bail to appearbefore Magistrate having jurisdiction in the case, or forwardhim to custody of such Magistrate;

(b) if it appears to the Central Excise Officer that there is notsufficient evidence or reasonable ground of suspicion againstthe accused person, he shall release the accused person onhis executing bond, with or without sureties as the CentralExcise Officer may direct, to appear, if and when so requiredbefore Magistrate having jurisdiction, and shall make fullreport of all the particulars of the case to his official superior.”

108. The Court therefore held:

“It is urged that under sub-section (2) of Section 21 CentralDExcise Officer under the Act has all the powers of an officerincharge of police station under Chapter XIV of the Code ofCriminal Procedure and therefore he must be deemed to be apolice officer within the meaning of those words in Section 25 ofthe Evidence Act. It is true that sub-section (2) confers on theECentral Excise Officer under the Act the same powers as anofficer incharge of police station has when investigating acognizable case; but this power is conferred for the purpose ofsub-section (1) which gives power to Central Excise Officer towhom any arrested person is forwarded to inquire into the chargeagainst him. Thus under Section 21 it is the duty of the CentralFExcise Officer to whom an arrested person is forwarded to inquireinto the charge made against such person. Further under proviso(a) to sub-section (2) of Section 21 if the Central Excise Officeris of opinion that there is sufficient evidence or reasonable groundof suspicion against the accused person, he shall either admit himGto bail to appear before Magistrate having jurisdiction in thecase, or forward him in custody to such Magistrate. It does nothowever appear that Central Excise Officer under the Act haspower to submit charge-sheet under Section 173 of the Code ofCriminal Procedure. Under Section 190 of the Code of CriminalProcedure Magistrate can take cognizance of any offence eitherH(a) upon receiving complaint of facts which constitute such

offence, or (b) upon report in writing of such facts made by anypolice officer, or (c) upon information received from any personother than police officer, or upon his own knowledge or suspicion,that such offence has been committed. police officer forpurposes of clause (b) above can in our opinion only be policeofficer properly so-called as the scheme of the Code of CriminalProcedure shows and it seems therefore that Central ExciseOfficer will have to make complaint under clause (a) above ifhe wants the Magistrate to take cognizance of an offence, forexample, under Section 9 of the Act. Thus though under sub-section (2) of Section 21 the Central Excise Officer under theAct has the powers of an officer incharge of police stationwhen investigating cognizable case, that is for the purpose ofhis inquiry under sub-section (1) of Section 21. Section 21 is interms different from Section 78(3) of the Bihar and Orissa ExciseAct, 1915 which came to be considered in Raja Ram Jaiswal’scase [(1964) 2 SCR 752] and which provided in terms that “forthe purposes of Section 156 of the Code of Criminal Procedure,1898, the area to which an excise officer empowered under Section77, sub-section (2), is appointed shall be deemed to be police-station, and such officer shall be deemed to be the officer inchargeof such station”. It cannot therefore be said that the provision inSection 21 is on par with the provision in Section 78(3) of theBihar and Orissa Excise Act. All that Section 21 provides is thatfor the purpose of his enquiry, Central Excise Officer shall havethe powers of an officer incharge of police station wheninvestigating cognizable case. But even so it appears that thesepowers do not include the power to submit charge-sheet underSection 173 of the Code of Criminal Procedure for unlike theBihar and Orissa Excise Act, the Central Excise Officer is notdeemed to be an officer incharge of police station.”

(at pages 703-704)

109. Having regard to the statutory scheme contained in theCentral Excise Act, more particularly sections 21(1) and proviso (a) tosection 21(2), the Court held that Central Excise officer had no powerto submit charge-sheet under section173(2) of the CrPC, as such officeris only empowered to send persons who are arrested to Magistrateunder these provisions.

110. The Court distinguished Raja Ram Jaiswal (supra), and heldthat this case being under the Central Excise Act, which is revenuestatute like the Land Customs Act, 1924 and the Sea Customs Act, 1878,would be more in accord with the case of Barkat Ram (supra) – seepage 704.

B111. The next judgment in chronological order is Romesh ChandraMehta (supra).Here again, Constitution Bench was concerned withthe same question under section 25 of the Evidence Act when read withenquiries made under section 171-A of the Sea Customs Act, 1878. TheCourt had no difficulty in finding that such customs officer could not besaid to be police officer for the purpose of section 25 of the EvidenceCAct, holding:

“Under the Sea Customs Act, Customs Officer is authorised tocollect customs duty to prevent smuggling and for that purpose heis invested with the power to search any person on reasonablesuspicion(Section 169); to screen or X-ray the body of personDfor detecting secreted goods (Section 170-A); to arrest personagainst whom reasonable suspicion exists that he has been guiltyof an offence under the Act (Section 173); to obtain searchwarrant from Magistrate to search any place within the locallimits of the jurisdiction of such Magistrate (Section 172); to collectEinformation by summoning persons to give evidence and producedocuments (Section 171-A); and to adjudge confiscation underSection 182. He may exercise these powers for preventingsmuggling of goods dutiable or prohibited and for adjudgingconfiscation of those goods. For collecting evidence the CustomsOfficer is entitled to serve summons to produce document orFother thing or to give evidence, and the person so summoned isbound to attend either in person or by an authorized agent, assuch officer may direct, and the person so summoned is bound tostate the truth upon any subject respecting which he is examinedor makes statement and to produce such documents and otherGthings as may be required. The power to arrest, the power todetain, the power to search or obtain search warrant and thepower to collect evidence are vested in the Customs Officer forenforcing compliance with the provisions of the Sea Customs Act.For purpose of Sections 193 and 228 of the Indian Penal Code theenquiry made by Customs Officer is judicial proceeding. AnHorder made by him is appealable to the Chief Customs Authority

under Section 188 and against that order revisional jurisdictionmay be exercised by the Chief Customs Authority and also by theCentral Government at the instance of any person aggrieved byany decision or order passed under the Act. The Customs Officerdoes not exercise, when enquiring into suspected infringementof the Sea Customs Act, powers of investigation which policeofficer may in investigating the commission of an offence. He isinvested with the power to enquire into infringements of the Actprimarily for the purpose of adjudicating forfeiture and penalty.He has no power to investigate an offence triable by Magistrate,nor has he the power to submit report under Section 173 of theCode of Criminal Procedure. He can only make complaint inwriting before competent Magistrate.”

(at pages 466-467)

112. Barkat Ram (supra), Raja Ram Jaiswal (supra) and BadkuJoti Savant (supra) were all referred to. The Court then laid down,what according to it was the true test for determining whether an officerof customs is to be deemed to be police officer, as follows:

“But the test for determining whether an officer of customs is tobe deemed police officer is whether he is invested with all thepowers of police officer qua investigation of an offence, includingthe power to submit report under Section 173 of the Code ofCriminal Procedure. It is not claimed that Customs Officerexercising power to make an enquiry may submit report underSection 173 of the Code of Criminal Procedure.”

(at page 469)

113. This judgment was followed by the judgment in Illias (supra),in which the same question arose, this time under the Customs Act,1962. In significant passage, the Constitution Bench held that therewas no conflict between Raja Ram Jaiswal (supra) and Barkat Ram(supra) as follows:

“Indeed in recent decision of this court P. Shankar Lal v. Asstt.Collector of Customs, Madras [Cr. As 52 & 104/65 decided on12-12-1967] it has been reaffirmed that there is no conflict betweenthe cases of Raja Ram Jaiswal and Barkat Ram, the former beingdistinguishable from the latter.”

(at page 616)

A114. The Court then referred to the Sea Customs Act, 1878 andthe Customs Act, 1962, highlighting the fact that section 108 of theCustoms Act, 1962 confers power on gazetted officer of Customs tosummons persons for giving evidenceor producing documents - seepage 617. Section 104(3) of the Customs Act, 1962 was strongly reliedupon by learned counsel appearing on behalf of the appellant in thatBcase, which section provided that where an officer of customs has arrestedany person under sub-clause (1) of section 104, he shall for the purposeof releasing such person on bail or otherwisehave the same power andbe subject to the same provisions as an officer-in-charge of policestation has and is subject to under the CrPC. It was noticed that theCoffences under the Customs Act were non-cognizable – see section104(4). It was then held that the expression “otherwise” clearly relatesto releasing person who has been arrested and cannot encompassanything beyond that – see page 617. Raja Ram Jaiswal (supra) wasreferred to, including the test laid down in that judgment at page 766 –see pages 619, 620. Badku Joti Savant (supra) was then referredDto.The Court concluded:

“It was reiterated that the appellant could not take advantage ofthe decision in Raja Ram Jaiswal’s case and that Barkat Ram’scase was more apposite. The ratio of the decision in Badku JotiSavant is that even if an officer under the special Act has beenEinvested with most of the powers which an officer in charge of apolice station exercises when investigating cognizable offencehe does not thereby became police officer within the meaningof Section 25 of the Evidence Act unless he is empowered to filea charge-sheet under Section 173 of the Code of CriminalFProcedure.

Learned counsel for the appellant when faced with the abovedifficulty has gone to the extent of suggesting that by necessaryimplication the power to file charge-sheet flows from some ofthe powers which have already been discussed under the newGAct and that customs officer is entitled to exercise even thispower. It is difficult and indeed it would be contrary to all rules ofinterpretation to spell out any such special power from any of theprovisions contained in the new Act.”

(at pages 621-622)

115. Two other judgments of this Court, this time under theRailways Property (Unlawful Possession) Act, 1966 held that membersof the Railway Protection Force could not be said to be police officerswithin the meaning of section 25 of the Evidence Act.

116. In State of U.P. v. Durga Prasad (1975) 3 SCC 210, aDivision Bench of this Court referred to section 8 of the said Act, whichis similar to section 21 of the Central Excise Act, as follows:

“6. Section 8 of the Act reads thus:

“8. (1) When any person is arrested by an officer of the Force foran offence punishable under this Act or is forwarded to him underSection 7, he shall proceed to inquire into the charge against suchperson.

(2) For this purpose the officer of the Force may exercise thesame powers and shall be subject to the same provisions as theofficer in charge of police station may exercise and is subject tounder the Code of Criminal Procedure, 1898, when investigatinga cognizable case;

Provided that—

(a) if the officer of the Force is of opinion that there is sufficientevidence or reasonable ground of suspicion against the accusedperson, he shall either admit him to bail to appear before aMagistrate having jurisdiction in the case, or forward him in custodyto such Magistrate;

(b) if it appears to the officer of the Force that there is no sufficientevidence or reasonable ground of suspicion against the accusedperson, he shall release the accused person on his executing abond, with or without sureties as the officer of the Force maydirect, to appear, if and when so required before the Magistratehaving jurisdiction, and shall make full report of all the particularsof the case to his official superior.”

117. The Court held:

“18. The right and duty of an Investigating Officer to file policereport or charge-sheet on the conclusion of investigation is thehallmark of an investigation under the Code. Section 173(1)(a) ofthe Code provides that as soon as the investigation is completed

Athe officer-in-charge of the police-station shall forward to aMagistrate empowered to take cognizance of the offence on apolice report, report in the form prescribed by the StateGovernment. The officer conducting an inquiry under Section 8(1)cannot initiate court proceedings by filing police report as isevident from the two Provisos to Section 8(2) of the Act. UnderBProviso (a), if the officer of the Force is of the opinion that thereis sufficient evidence or reasonable ground of suspicion againstthe accused, he shall either admit the accused to bail to appearbefore Magistrate having jurisdiction in the case or forward himin custody to such Magistrate. Under Proviso (b), if it appears toCthe officer that there is no sufficient evidence or reasonable groundof suspicion against the accused, he shall release him on bond toappear before the Magistrate having jurisdiction and shall make afull report of all the particulars of the case to his superior officer.The duty cast by Proviso (b) on an officer of the Force to make afull report to his official superior stands in sharp contrast with theDduty cast by Section 173(1)(a) of the Code on the officer-in-chargeof police station to submit report to the Magistrate empoweredto take cognizance of the offence. On the conclusion of an inquiryunder Section 8(1), therefore, if the officer of the Force is of theopinion that there is sufficient evidence or reasonable ground ofEsuspicion against the accused, he must file complaint underSection 190(1)(a) of the Code in order that the Magistrateconcerned may take cognizance of the offence.

19. Thus an officer conducting an inquiry under Section 8(1) ofthe Act does not possess all the attributes of an officer-in-chargeof police station investigating case under Chapter XIV of theCode. He possesses but part of those attributes limited to thepurpose of holding the inquiry.

20. That the Inquiry Officers cannot be equated generally withpolice officers is clear from the object and purpose of The RailwayGProtection Force Act, XXIII of 1957, under which theirappointments are made. The short title of that Act shows that itwas passed in order “to provide for the constitution and regulationof Force called the Railway Protection Force for the betterprotection and security of Railway property”. Section 3(1) of theAct of 1957 empowers the Central Government to constitute andHmaintain the Railway Protection Force for the better protectionand security of Railway property. By Section 10, the InspectorGeneral and every other superior officer and member of the Force“shall for all purposes be regarded as Railway servants within themeaning of the Indian Railways Act, 1890, other than ChapterVI-A thereof, and shall be entitled to exercise the powers conferredon Railway servants by or under that Act”. Section 11 whichdefines duties of every superior officer and member of the Forceprovides that they must promptly execute all orders lawfully issuedto them by their superior authority; protect and safeguard Railwayproperty; remove any obstruction in the movement of Railwayproperty and do any other act conducive to the better protectionand security of Railway property. Section 14 imposes duty onthe superior officers and members of the Force to make overpersons arrested by them to police officer or to take them to thenearest police station. These provisions are incompatible with theposition that member of the Railway Protection Force holdingan inquiry under Section 8(1) of the Act can be deemed to be apolice officer-in-charge of police station investigating into anoffence. Members of the Force are appointed under the authorityof the Railway Protection Force Act, 1957, the prime object ofwhich is the better protection and security of Railway property.Powers conferred on members of the Force are all directedtowards achieving that object and are limited by it. It is significantthat the Act of 1957, by Section 14, makes distinction betweena member of the Force and police officer properly so called.”

118. Reference was then made to Barkat Ram (supra) andBadku Joti Savant (supra), the decision in Raja Ram Jaiswal (supra)being distinguished, as follows:

“23. The decision in Raja Ram Jaiswal v. State of Bihar on whichthe respondent relies was considered and distinguished in BadkuJoti Savant’s case. Raja Ram Jaiswal case involved theinterpretation of Section 78(3) of the Bihar and Orissa ExciseAct, 1915 which provided in terms that:

“For the purposes of Section 156 of the Code of CriminalProcedure, 1898, the area to which an Excise Officer empoweredunder Section 7,7 sub-section (2), is appointed, shall be deemed tobe police station, and such officer shall be deemed to be theofficer-in-charge of such station.”

ABC

There is no provision in the Act before us corresponding to Section78(3) of the Bihar Act and therefore the decision is distinguishablefor the same reasons for which it was distinguished in BadkuJoti Savant’s case.”

119. In Balkishan A. Devidayal (supra), the same question asBarose in Durga Prasad (supra) arose before Division Bench of thisCourt. This Court held in paragraph18 that Durga Prasad (supra) reallyconcluded the question posed before the Court. It then held:

“20. From the above survey, it will be seen that the primary objectof constituting the Railway Protection Force is to secure betterC“protection and security of the railway property”. The restrictedpower of arrest and search given to the officers or members ofthe Force is incidental to the efficient discharge of their basicduty to protect and safeguard railway property. No generalpower to investigate all cognizable offences relating to railwayproperty, under the criminal procedure code has been conferredDon any superior officer or member of the Force by the 1957 Act.Section 14 itself makes it clear that even with regard to an offencerelating to “railway property”, the superior officer or member ofthe Force making an arrest under Section 13 shall forthwith makeover the person arrested to police officer, or cause his production,Ein the nearest police station.”

120. The Court noticed that offences under this Act were non-cognizable – see paragraph 27 – and concluded:

“30. Section 7 of the Act provides that the procedure forinvestigation of cognizable offence has to be followed by theFofficer before whom the accused person is produced.

31. Reading Section 7 of the 1966 Act with that of Section 14 ofthe 1957 Act, it is clear that while in the case of person arrestedunder Section 12 of the 1957 Act the only course open to thesuperior officer or member of the Force was to make over theGperson arrested to police officer, in the case of person arrestedfor suspected offence under the 1966 Act, he is required to beproduced without delay before the nearest officer of the Force,who shall obviously be bound [in view of Article 22(1) of theConstitution] to produce him further before the Magistrateconcerned.”

121. The Court then referred to section 8 of the Act, making itclear that the enquiry under section 8(1) shall be deemed to be judicialproceeding – see paragraph 34.Differences between sections 161-162of the CrPC and sections 9(3) and (4) of the Act were then pointed outas follows:

“35. The fourth important aspect in which the power and duty ofan officer of the RPF conducting an inquiry under the 1966 Act,differs from police investigation under the Code, is this. Sub-section (3) of Section 161 of the Code says that the police officermay reduce into writing any statement made to him in the courseof investigation. Section 162(1), which is to be read in continuationof Section 161 of the Code, prohibits the obtaining of signature ofthe person on his statement recorded by the investigating officer.But no such prohibition attaches to statements recorded in thecourse of an inquiry under the 1966 Act; rather, from the obligationto state the truth under pain of prosecution, enjoined by Section9(3) and (4), it follows as corollary, that the officer conductingthe inquiry may obtain signature of the person who made thestatement.

36. Fifthly, under the proviso to sub-section (1) of Section 162 ofthe Code, oral or recorded statement made to police officerduring investigation may be used by the accused and with thepermission of the court by the prosecution to contradict thestatement made by the witness in court in the manner provided inSection 145 of the Evidence Act, or when the witnesses statementis so used in cross-examination, he may be re-examined if anyexplanation is necessary. The statement of witness made to apolice officer during investigation cannot be used for any otherpurpose, whatever, except of course when it falls within Section32 or 27 of the Evidence Act. The prohibition contained in Section162 extends to all statements, confessional or otherwise, during apolice investigation made by any person whether accused or not,whether reduced to writing or not, subject to the proviso. In contrastwith the Code, in the 1966 Act, there is no provision analogous tothe proviso to Section 162(1) of the Code, which restricts orprohibits the use of statement recorded by an officer in thecourse of an inquiry under Sections 8 and 9 of the Act.”

122. Most importantly, it was then held:

“37. Sixthly, the primary duty of member/officer of the RPF isto safeguard and protect railway property. Only such powers ofarrest and inquiry have been conferred by the 1966 Act on membersof the RPF as are necessary and incidental to the efficient andeffective discharge of the basic duty of watch and ward. Unlike apolice officer who has general power under the Code toinvestigate all cognizable cases the power of an officer of theRPF to make an inquiry is restricted to offences under the 1966Act.

xxx xxxxxx

38…An officer of the RPF making an inquiry under the 1966Act, cannot, by any stretch of imagination, be called an “officer incharge of police station” within the meaning of Sections 173and 190(b) of the Code. The mode of initiating prosecution bysubmitting report under Section 173 read with clause (b) ofSection 190 of the Code is, therefore, not available to an officerof the RPF who has completed an inquiry into an offence underthe 1966 Act. The only mode of initiating prosecution of the personagainst whom he has successfully completed the inquiry, availableto an officer of the RPF, is by making complaint under Section190(1)(a) of the Code to the Magistrate empowered to try theoffence. That an officer of the Force conducting an inquiry underSection 8(1) cannot initiate proceedings in court by report underSections 173/190(1)(b) of the Code, is also evident from theprovisos to sub-section (2) of Section 8 of the 1966 Act. Underproviso (a), if such officer is of opinion that there is sufficientevidence or reasonable ground of suspicion against the accused,he shall either direct him (after admitting him to bail) to appearbefore the Magistrate having jurisdiction or forward him in custodyto such Magistrate. Under proviso (b), if it appears to the officerthat there is no sufficient evidence or reasonable ground ofsuspicion against the accused, he shall release him on bond toappear before the Magistrate concerned “and shall make fullreport of all the particulars of the case to his superior officer”.Provisos (a) and (b) put it beyond doubt that where after completingan inquiry, the officer of the Force is of opinion that there issufficient evidence or reasonable ground of suspicion against theaccused, he must initiate prosecution of the accused by making

complaint under Section 190(1)(a) of the Code to the Magistratecompetent to try the case.

39. From the comparative study of the relevant provisions of the1966 Act and the Code, it is abundantly clear that an officer of theRPF making an inquiry under Section 8(1) of the 1966 Act doesnot possess several important attributes of an officer in charge ofa police station conducting an investigation under Chapter XIV ofthe Code. The character of the “inquiry” is different from that ofan “investigation” under the Code. The official status and powersof an officer of the Force in the matter of inquiry under the 1966Act differ in material aspects from those of police officerconducting an investigation under the Code.”

123. This Court then referred to all the earlier judgments of thisCourt, including that of Durga Prasad (supra), and concluded:

“58. In the light of the above discussion, it is clear that an officerof the RPF conducting an inquiry under Section 8(1) of the 1966Act has not been invested with all the powers of an officer incharge of police station making an investigation under ChapterXIV of the Code. Particularly, he has no power to initiateprosecution by filing charge-sheet before the Magistrateconcerned under Section 173 of the Code, which has been held tobe the clinching attribute of an investigating “police officer”. Thus,judged by the test laid down in Badku Joti Savant, which hasbeen consistently adopted in the subsequent decisions noticedabove, Inspector Kakade of the RPF could not be deemed to be a“police officer” within the meaning of Section 25 of the EvidenceAct, and therefore, any confessional or incriminating statementrecorded by him in the course of an inquiry under Section 8(1) ofthe 1966 Act, cannot be excluded from evidence under the saidsection.”

124. In State of Gujarat v. Anirudhsing and Anr. (1997) 6 SCC514, one of the questions which arose before this Court was as to whethera member of the State Reserve Police Service acting under the BombayState Reserve Police Force Act, 1951 could be said to be police officerwithin the meaning of section 25 of the Evidence Act. The Court analysedthe aforesaid Bombay Act, and set out section 11(1) thereof, which states:

A“When employed on active duty at any place under sub-section(1) of Section 10, the senior reserve police officer of highest rank,not being lower than that of Naik present, shall be deemed to bean officer-in-charge of police station for the purposes of ChapterIX of the Code of Criminal Procedure, 1898, Act V of 1898.”

B125. Since Chapter IX of the Code of Criminal Procedure, 1898,which is the equivalent of Chapter X of the CrPC, deals with ‘maintenanceof public order and tranquillity’, the Court held:

“19. It would, thus, be clear that senior reserve police officerappointed under the SRPF Act, though is police officer underCthe Bombay Police Act and an officer-in-charge of police station,he is in charge only for the purpose of maintaining law and orderand tranquillity in the society and the powers of investigationenvisaged in Chapter XII of the CrPC have not been investedwith him.”

DAs result, it was held that such officer could not be said to be a“police officer” within the meaning of section 25 of the EvidenceAct.

126. The golden thread running through all these decisions –someof these being decisions of five-Judge Benches which are binding uponEus –beginning with Barkat Ram (supra), is that where limited powersof investigation are given to officers primarily or predominantly for somepurpose other than the prevention and detection of crime, such personscannot be said to be police officers under section 25 of the EvidenceAct. What must be remembered is the discussion in Barkat Ram (supra)that “police officer” does not have to be police officer in the narrowFsense of being person who is police officer so designated attached toa police station. The broad view has been accepted, and never dissentedfrom, in all the aforesaid judgments, namely, that where person who isnot police officer properly so-called is invested with all powers ofinvestigation, which culminates in the filing of police report, such officersGcan be said to be police officers within the meaning of section 25 of theEvidence Act, as when they prevent and detect crime, they are in aposition to extort confessions, and thus are able to achieve their objectthrough shortcut method of extracting involuntary confessions.

127. Shri Lekhi’s assault on Raja Ram Jaiswal (supra), statingthat it is wrongly decided and ought to be held to be per incuriam,H

cannot be countenanced. Raja Ram Jaiswal (supra) correctly decidedthat the Court in Barkat Ram (supra) had held that the words “policeofficer” to be found in section 25 of the Evidence Act are not to beconstrued in narrow way, but in wide and popular sense. It is whollyincorrect to say, from strained reading of Barkat Ram (supra) that, inreality, Barkat Ram (supra) preferred the “narrow” view over the“broad” view. This is also contrary to the understanding of severaljudgments of this Court which refer to Barkat Ram (supra), and whichcontinued to adopt the broad, and not narrow, test laid down in the saidjudgment. Also, Raja Ram Jaiswal (supra) has been referred to byseveral Constitution Benches of this Court, as has been pointed out byus hereinabove, as also other Division Benches, and has never beendoubted. In fact, it has always been distinguished in the revenue statutecases as well as the railway protection force cases as being case inwhich allpowers of investigation, which would lead to the filing of apolice report, were invested with excise officers, who therefore, despitenot belonging to the police force properly so-called, must yet be regardedas police officers for the purpose of section 25 of the Evidence Act. Thevital link between section 25 and such officers then gets established,namely, that in the course of investigation it is possible for such officersto take shortcut by extorting confessions from an accused person.

128. At this point, we come to the decision in Raj Kumar Karwal(supra). In this case, the very question that arises before us arose beforea Division Bench of this Court. The question was set out by the DivisionBench as follows:

“1. Are the officers of the Department of Revenue Intelligence(DRI) who have been invested with the powers of an officer-in-charge of police station under Section 53 of Narcotic Drugs andPsychotropic Substances Act, 1985 (hereinafter called ‘the Act’),“police officers” within the meaning of Section 25 of the EvidenceAct? If yes, is confessional statement recorded by such officerin the course of investigation of person accused of an offenceunder the said Act, admissible in evidence as against him? Theseare the questions which we are called upon to answer in theseappeals by special leave.”

129. The Court analysed the NDPS Act, and “conceded” that thepunishments prescribed for the various offences under the NDPS Actare very severe. It then went on to hold:

A“11…We, therefore, agree that as Section 25, Evidence Act,engrafts wholesome protection it must not be construed in anarrow and technical sense but must be understood in broadand popular sense. But at the same time it cannot be construed inso wide sense as to include persons on whom only some of thepowers exercised by the police are conferred within the categoryBof police officers. See State of Punjab v. Barkat Ram and RajaRam Jaiswal v. State of Bihar. This view has been reiterated insubsequent cases also.”

130. After referring to all the cases that have been cited by ushereinabove, the Court noticed the difference between the NDPS ActCand the revenue statutes and railway statute previously considered insome of the judgments of thisCourt, in that section 37 of the NDPS Actmakes offences punishable under the Act cognizable. The judgment thenwent on to state:

“20… Section 52 deals with the disposal of persons arrested andDarticles seized under Sections 41, 42, 43 or 44 of the Act. It enjoinsupon the officer arresting person to inform him of the groundsfor his arrest. It further provides that every person arrested andarticle seized under warrant issued under sub-section (1) of Section41 shall be forwarded without unnecessary delay to the MagistrateEby whom the warrant was issued. Where, however, the arrest orseizure is effected by virtue of Section 41(2), 42, 43 or 44 thesection enjoins upon the officer to forward the person arrestedand the article seized to the officer-in-charge of the nearest policestation or the officer empowered to investigate under Section 53of the Act. Special provision is made in Section 52-A in regard toFthe disposal of seized narcotic drugs and psychotropic substances.Then comes Section 53 which we have extracted earlier. Section55 requires an officer-in-charge of police station to take chargeof and keep in safe custody, pending the orders of the Magistrate,all articles seized under the Act within the local area of that policeGstation and which may be delivered to him. Section 57 enjoinsupon any officer making an arrest or effecting seizure under theAct to make full report of all the particulars of such arrest orseizure to his immediate official superior within 48 hours nextafter such arrest or seizure. These provisions found in Chapter Vof the Act show that there is nothing in the Act to indicate that all

the powers under Chapter XII of the Code, including the powerto file report under Section 173 of the Code have been expresslyconferred on officers who are invested with the powers of anofficer-in-charge of police station under Section 53, for thepurpose of investigation of offences under the Act.”

131. After referring to sections 41, 42, 43, 44, 52, 52A and 57 ofthe NDPS Act, the Court concluded that these powers are more or lesssimilar to the powers conferred on customs officers under the CustomsAct, 1962 – see paragraph 21. The Court then concluded:

22…The investigation which so commences must be concluded,without unnecessary delay, by the submission of report underSection 173 of the Code to the concerned Magistrate in theprescribed form. Any person on whom power to investigate underChapter XII is conferred can be said to be ‘police officer’, nomatter by what name he is called. The nomenclature is notimportant, the content of the power he exercises is thedeterminative factor. The important attribute of police power isnot only the power to investigate into the commission of cognizableoffence but also the power to prosecute the offender by filing areport or charge-sheet under Section 173 of the Code. That iswhy this Court has since the decision in Badku JotiSavant accepted the ratio that unless an officer is invested underany special law with the powers of investigation under the Code,including the power to submit report under Section 173, he cannotbe described to be ‘police officer’ under Section 25, EvidenceAct. Counsel for the appellants, however argued that since theAct does not prescribe the procedure for investigation, the officersinvested with power under Section 53 of the Act must necessarilyresort to the procedure under Chapter XII of the Code whichwould require them to culminate the investigation by submitting areport under Section 173 of the Code. Attractive though thesubmission appears at first blush, it cannot stand close scrutiny. Inthe first place as pointed out earlier there is nothing in the provisionsof the Act to show that the legislature desired to vest in the officersappointed under Section 53 of the Act, all the powers of ChapterXII, including the power to submit report under Section 173 ofthe Code. But the issue is placed beyond the pale of doubt by sub-section (1) of Section 36-A of the Act which begins with non-

DEF

Aobstante clause — notwithstanding anything contained in the Code— and proceeds to say in clause (d) as under:

“36-A. (d) Special Court may, upon perusal of policereport of the facts constituting an offence under this Act orupon complaint made by an officer of the CentralBGovernment or State Government authorised in this behalf,take cognizance of that offence without the accused beingcommitted to it for trial.”

This clause makes it clear that if the investigation is conducted bythe police, it would conclude in police report but if the investigationCis made by an officer of any other department including the DRI,the Special Court would take cognizance of the offence upon aformal complaint made by such authorised officer of the concernedgovernment. Needless to say that such complaint would have tobe under Section 190 of the Code. This clause, in our view, clinchesthe matter. We must, therefore, negative the contention that anDofficer appointed under Section 53 of the Act, other than policeofficer, is entitled to exercise ‘all’ the powers under Chapter XIIof the Code, including the power to submit report or charge-sheet under Section 173 of the Code. That being so, the casedoes not satisfy the ratio of Badku Joti Savant and subsequentEdecisions referred to earlier.”132. Despite the fact that Raj Kumar Karwal (supra) noticesthe fact that the NDPS Act prescribes offences which are “very severe”and that section 25 is wholesome protection which must be understoodin broad and popular sense, yet it arrives at conclusion that theFdesignated officer under section 53 of the NDPS Act cannot be said tobe police officer under section 25 of the Evidence Act. The DivisionBench also notices that, unlike all the revenue and railway protectionstatues where offences are non-cognizable, the NDPS Act offencesare cognizable.It also notices that the NDPS Act deals with preventionand detection of crimes of very serious nature. However, Raj KumarGKarwal (supra) did not properly appreciate the following distinctionsthat arise between the investigative powers of officers who are designatedin statutes primarily meant for revenue or railway purposes, as againstofficers who are designated under section 53 of the NDPS Act: first,that section 53 is located in statute which contains provisions for theHprevention, detection and punishment of crimes of very serious nature.

Even if the NDPS Act is to be construedas statute which regulatesand exercises control over narcotic drugs and psychotropic substances,the prevention, detection and punishment of crimes related thereto cannotbe said to be ancillary to such object, but is the single most important andeffective means of achieving such object. This is unlike the revenuestatutes where the main object was the due realisation of customs dutiesand the consequent ancillary checking of smuggling of goods (as in theLand Customs Act, 1924, the Sea Customs Act, 1878 and the CustomsAct, 1962); the levy and collection of excise duties (as in the CentralExcise Act, 1944); or as in the Railway Property (Unlawful PossessionAct), 1966, the better protection and security of Railway property.Second, unlike the revenue statutes and the Railway Act, all the offencesto 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 toinvestigate an offence under the Act, and therefore, it is clear that alltheinvestigative powers vested in an officer in charge of police stationunder the CrPC – including the power to file charge-sheet – are vestedin these officers when dealing with an offence under the NDPS Act.This is wholly distinct from the limited powers vested in officers underthe aforementioned revenue and railway statutes for ancillary purposes,which have already been discussed by this Court in Barkat Ram (supra),with reference to the Land Customs Act; Badku Joti Savant (supra),with reference to the Central Excise Act; Romesh Chandra Mehta(supra), with reference to the Sea Customs Act; Illias(supra), withreference to the Customs Act; and Durga Prasad (supra) andBalkishan(supra) with reference to the Railway Act, to be in aid of thedominant object of the statutes in question, which – as already alluded to– were not primarily concerned with the prevention and detection ofcrime, unlike the NDPS Act. Also, importantly, none of those statutesrecognised the power of the State police force to investigate offencesunder those Acts together with the officers mentioned in those Acts, asis the case in the NDPS Act. No question of manifest arbitrariness ordiscrimination on the application of Article 14 of the Constitution of Indiawould therefore arise in those cases, unlike cases which arise under theNDPS Act, as discussed in paragraphs 67 to 70 hereinabove.

133. The Bench also failed to notice section 53A of the NDPSAct and, therefore, falls into error when it states that the powers conferred

Aunder the NDPS Act can be assimilated with powers conferred oncustoms officers under the Customs Act. When sections 53 and 53Aare seen together in the context of statute which deals with preventionand detection of crimes of very serious nature, it becomes clear thatthese sections cannot be construed in the same manner as sectionscontained in revenue statutes and railway protection statutes.B

134. The language of section 53(1) is crystal clear, and investsthe officers mentioned therein with the powers of “an officer-in-chargeof police station for the investigation of the offences under this Act”.The expression “officer in charge of police station” is defined in theCrPC as follows:C

“(o) “officer in charge of police station” includes, when theofficer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties,the police officer present at the station-house who is next in rankto such officer and is above the rank of constable or, when theDState Government so directs, any other police officer so present;”The expression “police report” is defined in section 2(r) of theCrPC as follows:

“(r) “police report” means report forwarded by police officerEto Magistrate under sub-section (2) of section 173;”135. Section 173(2) of the Code of Criminal Procedure, thenprovides as follows:

“173. Report of police officer on completion ofinvestigation.—Fxxx xxxxxx

(2) (i) As soon as it is completed, the officer in charge of thepolice station shall forward to Magistrate empowered to takecognizance of the offence on police report, report in the formprescribed by the State Government, stating—

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted withthe circumstances of the case;

(d) whether any offence appears to have been committed and, ifso, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whetherwith or without sureties;

(g) whether he has been forwarded in custody under section 170.

(h) whether the report of medical examination of the woman hasbeen attached where investigation relates to an offence undersections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DBor section 376E of the Indian Penal Code (45 of 1860).

(ii) The officer shall also communicate, in such manner as may beprescribed by the State Government, the action taken by him, tothe person, if any, by whom the information relating to thecommission of the offence was first given.”

136. Section 36A of the NDPS Act provides as follows:

“36A. Offences triable by Special Courts.—(1)Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974),—

(a) all offences under this Act which are punishable withimprisonment for term of more than three years shall be triableonly by the Special Court constituted for the area in which theoffence has been committed or where there are more SpecialCourts than one for such area, by such one of them as may bespecified in this behalf by the Government;

(b) where person accused of or suspected of the commission ofan offence under this Act is forwarded to Magistrate undersub-section (2) or sub-section (2A) of section 167 of the Code ofCriminal Procedure, 1973 (2 of 1974), such Magistrate mayauthorise the detention of such person in such custody as he thinksfit for period not exceeding fifteen days in the whole wheresuch Magistrate is Judicial Magistrate and seven days in thewhole where such Magistrate is an Executive Magistrate:

Provided that in cases which are triable by the Special Court wheresuch Magistrate considers—

A(i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detentionauthorised by him,

that the detention of such person is unnecessary, he shall ordersuch person to be forwarded to the Special Court havingBjurisdiction;

(c) the Special Court may exercise, in relation to the personforwarded to it under clause (b), the same power which aMagistrate having jurisdiction to try case may exercise undersection 167 of the Code of Criminal Procedure, 1973 (2 of 1974),in relation to an accused person in such case who has beenforwarded to him under that section;

(d) Special Court may, upon perusal of police report of the factsconstituting an offence under this Act or upon complaint made byan officer of the Central Government or State GovernmentDauthorised in his behalf, take cognizance of that offence withoutthe accused being committed to it for trial.

(2) When trying an offence under this Act, Special Court mayalso try an offence other than an offence under this Act withwhich the accused may, under the Code of Criminal Procedure,E1973 (2 of 1974), be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect thespecial powers of the High Court regarding bail under section 439of the Code of Criminal Procedure, 1973 (2 of 1974), and theHigh Court may exercise such powers including the power underFclause (b) of sub-section (1) of that section as if the reference to“Magistrate” in that section included also reference to “SpecialCourt” constituted under section 36.

(4) In respect of persons accused of an offence punishable undersection 19 or section 24 or section 27A or for offences involvingcommercial quantity the references in sub-section (2) of section167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereofto “ninety days”, where they occur, shall be construed as referenceto “one hundred and eighty days”:

Provided that, if it is not possible to complete the investigationHwithin the said period of one hundred and eighty days, the SpecialCourt may extend the said period up to one year on the report of

the Public Prosecutor indicating the progress of the investigationand the specific reasons for the detention of the accused beyondthe said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974), the offences punishable under thisAct with imprisonment for term of not more than three yearsmay be tried summarily.”

137. What is clear, therefore, is that the designated officer undersection 53, invested with the powers of an officer in charge of policestation, is to forward police report stating the particulars that arementioned in section 173(2) CrPC. Because of the special provisioncontained in section 36A(1) of the NDPS Act, this police report is notforwarded to Magistrate, but only to Special Court under section36A(1)(d). Raj Kumar Karwal (supra), when it states that the designatedofficer cannot submit police report under section 36A(1)(d), but wouldhave to submit “complaint” under section 190 of the CrPC misses theimportance of the non obstante clause contained in section 36A(1),which makes it clear that the drill of section 36A is to be followednotwithstanding anything contained in section 2(d) of the CrPC. It isobvious that section 36A(1)(d) is inconsistent with section 2(d) and section190 of the CrPC and therefore, any complaint that has to be made canonly be made under section 36A(1)(d) to Special Court, and not to aMagistrate under section 190. Shri Lekhi’s argument, that the procedureunder section 190 has been replaced only in part, the police report andcomplaint procedure under section 190 not being displaced by section36A(1)(d), cannot be accepted. Section 36A(1)(d) specifies schemewhich is completely different from that contained in the CrPC. Whereasunder section 190 of the CrPC it is the Magistrate who takes cognizanceof an offence, under section 36A(1)(d) it is only Special Court thattakes cognizance of an offence under the NDPS Act. Secondly, the“complaint” referred to in section 36A(1)(d) is not private complaintthat is referred to in section 190(1)(a) of the CrPC, but can only be byan authorised officer. Thirdly, section 190(1)(c) of the CrPC isconspicuous by its absence in section 36A(1)(d) of the NDPS Act – theSpecial Court cannot, upon information received from any person otherthan police officer, or upon its own knowledge, take cognizance of anoffence under the NDPS Act. Further, Special Court under section36A is deemed to be Court of Session, for the applicability of theCrPC, under section 36C of the NDPS Act. Court of Session under

Asection 193 of the CrPC cannot take cognizance as Court of originaljurisdiction unless the case has been committed to it by Magistrate.However, under section 36A(1)(d) of the NDPS Act, Special Courtmay take cognizance of an offence under the NDPS Act without theaccused being committed to it for trial. It is obvious, therefore, that inview of section 36A(1)(d), nothing contained in section 190 of the CrPCBcan be said to apply to Special Court taking cognizance of an offenceunder the NDPS Act.

138. Also, the officer designated under section 53 by the CentralGovernment or State Government to investigate offences under the NDPSAct, need not be the same as the officer authorised by the CentralCGovernment or State Government under section 36A(1)(d) to make acomplaint before the Special Court. As matter of fact, if the CentralGovernment is to invest an officer with the power of an officer in chargeof police station under sub-section (1) of section 53, it can only do soafter consultation with the State Government, which requirement isDconspicuous by its absence when the Central Government authorises anofficer under section 36A(1)(d). Also, both section 53(1) and (2) referto officers who belong to particular departments of Government. Section36A(1)(d) does not restrict the officer that can be appointed for thepurpose of making complaint to only an officer belonging to departmentof the Central/State Government. There can also be situation whereEofficers have been designated under section 53 by the Government, butnot so designated under section 36A(1)(d). It cannot be that in the absenceof the designation of an officer under section 36A(1)(d), the culminationof an investigation by designated officer under section 53 ends up bybeing an exercise in futility.F

139. Take the anomalous position that would arise as result ofthe judgment in Raj Kumar Karwal (supra). Suppose designatedofficer under section 53 of the NDPS Act investigates particular caseand then arrives at the conclusion that no offence is made out. Unlesssuch officer can give police report to the Special Court stating that noGoffence had been made out, and utilise the power contained in section169 CrPC to release the accused, there would be major lacuna in theNDPS Act which cannot be filled.

140. second anomaly also results from the judgment in RajKumar Karwal (supra). Ordinarily, after the police report under sectionH173(2) of the CrPC is forwarded to the Magistrate (the Special Court in

the NDPS Act), the police officer can undertake “further investigation”of the offence under section 173(8) of the CrPC. Section 173(8) readsas follows:

“(8) Nothing in this section shall be deemed to preclude furtherinvestigation in respect of an offence after report under sub-section (2) has been forwarded to the Magistrate and, where uponsuch investigation, the officer in charge of the police station obtainsfurther evidence, oral or documentary, he shall forward to theMagistrate further report or reports regarding such evidence inthe form prescribed; and the provisions of sub-sections (2) to (6)shall, as far as may be, apply in relation to such report or reportsas they apply in relation to report forwarded under sub-section(2).”141. three-Judge Bench of this Court in Vinubhai HaribhaiMalviya and Ors. v. State of Gujarat and Anr. 2019 SCC OnLine SC1346 held that the power to further investigate an offence would beavailable at all stages of the progress of criminal case before the trialactually commences – see paragraph 49. If, as is contended by ShriLekhi, that the officer designated under section 53 can only file a“complaint” and not “police report”, then such officer would be denudedof the power to further investigate the offence under section 173(8)after such “complaint” is filed. This is because section 173(8) makes it-clear that the further report can only be filed after report under subsection (2)(i.e. police report) has been forwarded to the Court.However, police officer, properly so-called, who may be investigatingan identical offence under the NDPS Act, would continue to have suchpower, and may, until the trial commences, conduct further investigationso that, as stated by this Court in Vinubhai (supra), an innocent personis not wrongly arraigned as an accused, or that prima facie guiltyperson is not so left out. Such anomaly – resulting in violation of Article14 of the Constitution of India – in that there is unequal treatment betweenidentically situated persons accused of an offence under the NDPS Actsolely due to the whether the investigating officer is police officer oran officer designated under section 53 of the NDPS Act, would ariseonly if the view in Raj Kumar Karwal (supra) is correct.

142. third anomalous situation would arise, in that under section36A(1)(a) of the NDPS Act, it is only offences which are punishablewith imprisonment for term of more than three years that are exclusively

Atriable by the Special Court. If, for example, an accused is tried for anoffence punishable under section 26 of the NDPS Act, he may be triedby Magistrate and not the Special Court. This being the case, thespecial procedure provided in section 36A(1)(d) would not apply, theresult being that the section 53 officer who investigates this offence, willthen deliver police report to the Magistrate under section 173 of theBCrPC. Absent any provision in the NDPS Act truncating the powers ofinvestigation for prevention and detection of crimes under the NDPSAct, it is clear that an offence which is punishable for three years andless can be investigated by officers designated under section 53, leadingto the filing of police report.However, in view of Raj Kumar KarwalC(supra), section 53 officer investigating an offence under the NDPSActcan end up only by filing complaint under section 36A(1)(d) of theNDPS Act. Shri Lekhi’s only answer to this anomaly is that under section36A(5) of the NDPS Act, such trials will follow summary procedure,which, in turn, will relate to complaint where investigation is undertaken-by narcotics officer. First and foremost, trial procedure is postDinvestigation, and has nothing to do with the manner of investigation orcognizance, as was submitted by Shri Lekhi himself. Secondly, evenassuming that the mode of trial has some relevance to this anomaly,section 258 of the CrPC makes it clear that summons case can beinstituted “otherwise than upon complaint”, which would obviously referEto summons case being instituted on police report – see John Thomasv. Dr. K. Jagadeesan (2001) 6 SCC 30 (at paragraph 8).

143. Section 59 of the NDPS Actis an important pointer to whencognizance of an offence can take place onlyon complaint, and not byway of police report.By section 59(3), both in the case of an offence

Funder section 59(1) [which is punishable for term which may extend toone year] or in the case of an offence under section 59(2) [which ispunishable for term which shall not be less than10 years, but whichmay extend to 20 years], no Court shall take cognizance of any offenceunder section 59(1) or (2), except on complaint in writing made with

the previous sanction of the Central Government, or, as the case mayGbe, the State Government.Thus, under section 59, in either case i.e. in acase where the trial takes place by Magistrate for an offence undersection 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 complaint in writing. This provision is in terms markedlyHdifferent from section 36A(1)(d), which provides two separate procedures

for taking cognizance of offences made out under the NDPS Act. Forall these reasons, it is clear that Raj Kumar Karwal (supra) cannotpossibly have laid down the law correctly.

144. At this juncture, it is important to state that we do not acceptthe submission of Shri S.K. Jain that the “complaint” referred to in section36A(1)(d) refers only to section 59 of the NDPS Act.A complaint canbe made by designated officer qua offences which arise under theNDPS Act – it is not circumscribed by provision which requires previoussanction for an offence committed under section 58, as that would doviolence to the plain language of section 36A(1)(d).This argument is,therefore, rejected. It is always open, therefore, to the designated officer,designated this time for the purpose of filing complaint under section36A(1)(d), to do so before the Special Court, which is separateprocedure provided for under the special statute, in addition to theprocedure to be followed under section 53, as delineated hereinabove.

145. Shri Lekhi, however, argued that section 53 does not use theexpression “deemed” and that therefore, the power contained in section53(1) is only truncated power to investigate which does not culminatein police report being filed.We cannot agree.The officer who isdesignated under section 53 can, by legal fiction, be deemed to be anofficer incharge of police station, or can be given the powers of anofficer incharge of police station to investigate the offences under theNDPS Act. Whether he is deemed as an officer incharge of policestation, or given such powers, are only different sides of the same coin –the aforesaid officer is not, in either circumstance, police officer whobelongs to the police force of the State.To concede that deeming fictionwould give full powers of investigation, including the filing of finalreport,to the designated officer,as against the powers of an officerincharge of police station being given to designated officer havingonly limited powers to investigate, does not stand to reason, and wouldbe contrary to the express language and intendment of section 53(1).

146. Another argument of Shri Lekhi is that police officers orpolicemen who belong to the police force are recognised in the NDPSAct as being separate and distinct from the officers of the Departmentof Narcotics, etc. This argument has no legs on which to stand when itis clear that the expression “police officers” does not only mean policeofficer who belongs to the State police force, but includes officers whomay belong to other departments, such as the Department of Excise in

ARaja Ram Jaiswal (supra), who are otherwise invested with all powersof investigation so as to attract the provisions of section 25 of the EvidenceAct. Further, if the distinction between police officer as narrowly definedand the officers of the Narcotics Control Bureau is something that is tobe stressed, then any interpretation which would whittle down thefundamental rights of an accused based solely on the designation of aBparticular officer, would fall foul of Article 14, as the classificationbetween the two types of officers would have no rational relation to theobject sought to be achieved by the statute in question, which is theprevention and detection of crime.

147. What remains to be considered is Kanhaiyalal (supra). InCthis judgment, the question revolved around conviction on the basis ofa confessional statement made under section 67 of the NDPS Act.ThisCourt, after setting out section 67, then drew parallel between theprovisions ofsection 67 of the NDPS Act and sections 107 and 108 ofthe Customs Act, 1962,section 32 of the Prevention of Terrorism Act,D2002 (“POTA”) and section 15 of the TADA – see paragraph 41. Theseprovisions are as follows:

Customs Act, 1962

“107. Power to examine persons.—Any officer of customsempowered in this behalf by general or special order of theEPrincipal Commissioner of Customs or Commissioner of Customsmay, during the course of any enquiry in connection with thesmuggling of any goods,—

(a) require any person to produce or deliver any document orthing relevant to the enquiry;

(b) examine any person acquainted with the facts andcircumstances of the case.

108. Power to summon persons to give evidence andproduce documents.—(1) Any Gazetted Officer of customsshall have power to summon any person whose attendance heGconsiders necessary either to give evidence or to produce adocument or any other thing in any inquiry which such officer ismaking under this Act.

(2) summons to produce documents or other things may be forthe production of certain specified documents or things or for the

production of all documents or things of certain description inthe possession or under the control of the person summoned.

(3) All persons so summoned shall be bound to attend either inperson or by an authorised agent, as such officer may direct; andall persons so summoned shall be bound to state the truth uponany subject respecting which they are examined or makestatements and produce such documents and other things as maybe required: Provided that the exemption under section 132 of theCode of Civil Procedure, 1908 (5 of 1908), shall be applicable toany requisition for attendance under this section.

(4) Every such inquiry as aforesaid shall be deemed to be judicialproceeding within the meaning of section 193 and section 228 ofthe Indian Penal Code, 1860 (45 of 1860).”

POTA

32. Certain confessions made to police officers to be takeninto consideration.- (1) Notwithstanding anything in the Codeor in the Indian Evidence Act, 1872 (1 of 1872), but subject to theprovisions of this section, confession made by person before apolice officer not lower in rank than Superintendent of Policeand recorded by such police officer either in writing or on anymechanical or electronic device like cassettes, tapes or soundtracks from out of which sound or images can be reproduced,shall be admissible in the trial of such person for an offence underthis Act or the rules made thereunder.(2) police officer shall, before recording any confession madeby person under sub-section (1), explain to such person in writingthat he is not bound to make confession and that if he does so, itmay be used against him: Provided that where such person prefersto remain silent, the police officer shall not compel or induce himto make any confession.

(3) The confession shall be recorded in an atmosphere free fromthreat or inducement and shall be in the same language in whichthe person makes it.

(4) The person from whom confession has been recorded undersub-section (1), shall be produced before the Court of ChiefMetropolitan Magistrate or the Court of Chief Judicial Magistrate

along with the original statement of confession, written or recordedon mechanical or electronic device within forty-eight hours.

(5) The Chief Metropolitan Magistrate or the Chief JudicialMagistrate, shall, record the statement, if any, made by the personso produced and get his signature or thumb impression and if thereBis any complaint of torture, such person shall be directed to beproduced for medical examination before Medical Officer notlower in rank than an Assistant Civil Surgeon and thereafter, heshall be sent to judicial custody.”

TADA

“15. Certain confessions made to police officers to be takeninto consideration.—(1) Notwithstanding anything in the Codeor in the Indian Evidence Act, 1872 (1 of 1872), but subject to theprovisions of this section, confession made by person before apolice officer not lower in rank than Superintendent of Policeand recorded by such police officer either in writing or on anymechanical device like cassettes, tapes or sound tracks from outof which sounds or images can be reproduced, shall be admissiblein the trial of such person or co-accused, abettor or conspiratorfor an offence under this Act or Rules made thereunder:

Provided that co-accused, abettor or conspirator is charged andtried in the same case together with the accused.

(2) The police officer shall, before recording any confession undersub-section (1), explain to the person making it that he is not boundto make confession and that, if he does so, it may be used asFevidence against him and such police officer shall not record anysuch confession unless upon questioning the person making it, hehas reason to believe that it is being made voluntarily.”

148. Even cursory look at the provisions of these statutes wouldshow that there is no parallel whatsoever between section 67 of theNDPS Act and these provisions. In fact, section 108 of the CustomsAct, 1962 expressly states that the statements made therein are evidence,as opposed to section 67 which is only section which enables an officernotified under section 42 to gather information in an enquiry in whichpersons are “examined”.

149. Equally, section 32 of POTA and section 15 of TADA areexceptions to section 25 of the Evidence Act in terms, unlike the provisionsof the NDPS Act. Both these Acts, vide section 32 and section 15respectively, have non-obstante clauses by which the Evidence Acthas to give way to the provisions of these Acts. Pertinently, confessionalstatements made before police officers under the provisions of the POTAand TADA are made “admissible” in the trial of such person – seesection 32(1), POTA, and section 15(1), TADA. This is distinct from theevidentiary value ofstatements made under the NDPS Act, wheresection53A states that, in the circumstances mentioned therein, statements madeby person beforeany officer empowered under section 53 shall merelybe “relevant” for the purpose of proving the truth of any facts containedin the said statement. Therefore, statements made before the officerunder section 53, even when “relevant” under section 53A, cannot,without corroborating evidence, be the basis for the conviction of anaccused.150. Also, when confessional statements are used under the TADAand POTA, they are used with several safeguards which are containedin these sections themselves. So far as TADA is concerned, for example,in Kartar Singh (supra) the following additional safeguards/guidelineswere issued by the Court to ensure that the confession obtainedin the course of investigation by police officer “is not tainted with anyvice but is in strict conformity with the well-recognised and acceptedaesthetic principles and fundamental fairness”:

“263…(1) The confession should be recorded in free atmospherein the same language in which the person is examined and asnarrated by him;

(2) The person from whom confession has been recorded underSection 15(1) of the Act, should be produced before the ChiefMetropolitan Magistrate or the Chief Judicial Magistrate to whomthe confession is required to be sent under Rule 15(5) along withthe original statement of confession, written or recorded onmechanical device without unreasonable delay;

(3) The Chief Metropolitan Magistrate or the Chief JudicialMagistrate should scrupulously record the statement, if any, madeby the accused so produced and get his signature and in case ofany complaint of torture, the person should be directed to be

produced for medical examination before Medical Officer notlower in rank than of an Assistant Civil Surgeon;

(4) Notwithstanding anything contained in the Code of CriminalProcedure, 1973, no police officer below the rank of an AssistantCommissioner of Police in the Metropolitan cities and elsewhereBof Deputy Superintendent of Police or police officer ofequivalent rank, should investigate any offence punishable underthis Act of 1987.

This is necessary in view of the drastic provisions of this Act.More so when the Prevention of Corruption Act, 1988 underCSection 17 and the Immoral Traffic Prevention Act, 1956 underSection 13, authorise only police officer of specified rank toinvestigate the offences under those specified Acts.

(5) The police officer if he is seeking the custody of any personfor pre-indictment or pre-trial interrogation from the judicial custody,Dmust file an affidavit sworn by him explaining the reason not onlyfor such custody but also for the delay, if any, in seeking the policecustody;

(6) In case, the person, taken for interrogation, on receipt of thestatutory warning that he is not bound to make confession andEthat if he does so, the said statement may be used against him asevidence, asserts his right to silence, the police officer must respecthis right of assertion without making any compulsion to give astatement of disclosure;

The Central Government may take note of these guidelines andFincorporate them by appropriate amendments in the Act and theRules.”

151. Insofar as POTA is concerned, procedural safeguards whilerecording confessions have been discussed by this Court in State (NCTof Delhi) v. Navjot Sandhu (2005) 11 SCC 600 as follows:

G“Procedural safeguards in POTA and their impact onconfessions

156. As already noticed, POTA has absorbed into it the guidelinesspelt out in Kartar Singh and D.K. Basu in order to impart anelement of fairness and reasonableness into the stringent provisionsHof POTA in tune with the philosophy of Article 21 and allied

constitutional provisions. These salutary safeguards are containedin Sections 32 and 52 of POTA. The peremptory prescriptionsembodied in Section 32 of POTA are:

(a) The police officer shall warn the accused that he is not boundto make the confession and if he does so, it may be used againsthim [vide sub-section (2)].

(b) The confession shall be recorded in an atmosphere free fromthreat or inducement and shall be in the same language in whichthe person makes it [vide sub-section (3)].

(c) The person from whom confession has been recorded undersub-section (1) shall be produced before the Chief MetropolitanMagistrate or Chief Judicial Magistrate along with the originalstatement of confession, within forty-eight hours [vide sub-section(4)].

(d) The CMM/CJM shall record the statement, if any, made bythe person so produced and get his signature and if there is anycomplaint of torture, such person shall be directed to be producedfor medical examination. After recording the statement and aftermedical examination, if necessary, he shall be sent to judicialcustody [vide sub-section (5)].

The mandate of sub-sections (2) and (3) is not something new.Almost similar prescriptions were there under TADA also. In fact,the fulfilment of such mandate is inherent in the process ofrecording confession by statutory authority. What is necessarilyimplicit is, perhaps, made explicit. But the notable safeguards whichwere lacking in TADA are to be found in sub-sections (4) and(5).

157. The lofty purpose behind the mandate that the maker of theconfession shall be sent to judicial custody by the CJM beforewhom he is produced is to provide an atmosphere in which hewould feel free to make complaint against the police, if he sowishes. The feeling that he will be free from the shackles of policecustody after production in court will minimise, if not remove, thefear psychosis by which he may be gripped. The varioussafeguards enshrined in Section 32 are meant to be strictly observedas they relate to personal liberty of an individual. However, weadd caveat here. The strict enforcement of the provision as to

Ajudicial remand and the invalidation of the confession merely onthe ground of its non-compliance may present some practicaldifficulties at times. Situations may arise that even after theconfession is made by person in custody, police custody maystill be required for the purpose of further investigation. Sending aperson to judicial custody at that stage may retard the investigation.BSometimes, the further steps to be taken by the investigator withthe help of the accused may brook no delay. An attempt shallhowever be made to harmonise this provision in Section 32(5)with the powers of investigation available to the police. At thesame time, it needs to be emphasised that the obligation to sendCthe confession maker to judicial custody cannot be lightlydisregarded. Police custody cannot be given on the mere askingby the police. It shall be remembered that sending person whohas made the confession to judicial custody after he is producedbefore the CJM is the normal rule and this procedural safeguardshould be given its due primacy. The CJM should be satisfied thatDit is absolutely necessary that the confession maker shall berestored to police custody for any special reason. Such courseof sending him back to police custody could only be done inexceptional cases after due application of mind. Most often, sendingsuch person to judicial custody in compliance with Section 32(5)Esoon after the proceedings are recorded by the CJM subject tothe consideration of the application by the police after few daysmay not make material difference to the further investigation.The CJM has duty to consider whether the application is only aruse to get back the person concerned to police custody in casehe disputes the confession or it is an application made bona fide inFview of the need and urgency involved. We are therefore of theview that the non-compliance with the judicial custody requirementdoes not perse vitiate the confession, though its non-complianceshould be one of the important factors that must be borne in mindin testing the confession.

158. These provisions of Section 32, which are conceived in theinterest of the accused, will go long way to screen and excludeconfessions, which appear to be involuntary. The requirementsand safeguards laid down in sub-sections (2) to (5) are an integralpart of the scheme providing for admissibility of confession madeHto the police officer. The breach of any one of these requirements

would have vital bearing on the admissibility and evidentiaryvalue of the confession recorded under Section 32(1) and mayeven inflict fatal blow on such confession. We have another setof procedural safeguards laid down in Section 52 of POTA whichare modelled on the guidelines envisaged by D.K. Basu [(1997) 1SCC 416]. Section 52 runs as under:

“52. (1) Where police officer arrests person, he shallprepare custody memo of the person arrested.

(2) The person arrested shall be informed of his right to consulta legal practitioner as soon as he is brought to the policestation.

(3) Whenever any person is arrested, information of his arrestshall be immediately communicated by the police officer to afamily member or in his absence to relative of such personby telegram, telephone or by any other means and this factshall be recorded by the police officer under the signature ofthe person arrested.

(4) The person arrested shall be permitted to meet the legalpractitioner representing him during the course ofinterrogation of the accused person:

Provided that nothing in this sub-section shall entitle the legalpractitioner to remain present throughout the period ofinterrogation.”

Sub-sections (2) and (4) as well as sub-section (3) stem from theguarantees enshrined in Articles 21 and 22(1) of the Constitution.Article 22(1) enjoins that no person who is arrested shall bedetained in custody without being informed, as soon as may be, ofthe grounds for such arrest nor shall he be denied the right toconsult, and to be defended by, legal practitioner of his choice.They are also meant to effectuate the commandment of Article20(3) that no person accused of any offence shall be compelledto be witness against himself.”

152. Thus, to arrive at the conclusion that confessional statementmade before an officer designated under section 42 or section 53 can bethe basis to convict person under the NDPS Act, without any nonobstante clause doing away with section 25 of the Evidence Act, and

Awithout any safeguards, would be direct infringement of theconstitutional guarantees contained in Articles 14, 20(3) and 21 of theConstitution of India.

153. The judgment in Kanhaiyalal (supra) then goes on to followRaj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasonsBstated by us hereinabove, both these judgments do not state the lawcorrectly, and are thus overruled by us. Other judgments that expresslyrefer to and rely upon these judgments, or upon the principles laid downby these judgments, also stand overruled for the reasons given by us.

154. On the other hand, for the reasons given by us in this judgment,Cthe judgments of Noor Aga (supra) and Nirmal Singh Pehlwan v.Inspector, Customs (2011) 12 SCC 298 are correct in law.

155. We answer the reference by stating:

(i)That the officers who are invested with powers under section53 of the NDPS Act are “police officers” within the meaningDof section 25 of the Evidence Act, as result of which anyconfessional statement made to them would be barred underthe provisions of section 25 of the Evidence Act, and cannotbe taken into account in order to convict an accused underthe NDPS Act.

E(ii)That statement recorded under section 67 of the NDPSAct cannot be used as confessional statement in the trialof an offence under the NDPS Act.

156. I.A. No. 87826 of 2020 for intervention is dismissed. I.A.No. 81061 of 2020 in Criminal Appeal No. 433 of 2014 is dismissed asFwithdrawn, with liberty to the applicant to avail of such remedies as areavailable in law.

157. These Appeals and Special Leave Petitions are now sentback to Division Benches of this Court to be disposed of on merits, in thelight of this judgment.G

INDIRA BANERJEE, J.

1. I have gone through the draft judgment prepared by myesteemed brother, Rohinton F. Nariman, J. but have not been able topersuade myself to agree that the officers invested with powers underSection 53 of the Narcotic Drugs and Psychotropic Substances ActH

(NDPS Act) are police officers within the meaning of Section 25 of theindian Evidence Act, 1872 or that any confessional statement made tothem would be barred under the provisions of Section 25 or 26 of theEvidence Act. In my view, any statement made or document or otherthing given to an authorised officer referred to in Section 42 of the NDPSAct or an officer invested under Section 53 with the powers of an Officerin Charge for the purpose of investigation of an offence under the saidAct, in the course of any inquiry, investigation or other proceeding, maybe tendered in evidence in the trial of an offence under the said Act andproved in accordance with law. I am also unable to agree that statementrecorded under Section 67 of the NDPS Act cannot be used against anaccused offender in the trial of an offence under the NDPS Act.

2. The illicit production, distribution, sale and consumption of drugsand psychotropic substances, is crime of multi-dimensional magnitude,that imposes staggering burden on the society. In an Article “NarcoticAggression and Operation Counter Attack” published in the Mainstreamdated March 7, 1992, V.R. Krishna Iyer, J. said:-

“Religion is opium of the people, but today opium is thereligion of the people, and like God, is omnipresent,omnipotent and omniscient. Alas! Opium makes you slowly illand eventually kills, makes you new criminal to rob andbuy the stuff, tempts you to smuggle at risk to become richquick, makes you invisible trafficker of psychotropicsubstances and operator of parallel international illicitcurrency and sub rosa evangelist mafia culture. Drug businessmakes you if not killed betimes, the possessor of pleasure,power and empire. What noxious menace is this mostinescapable evil that benumbs the soul of student, teacher,doctor, politician, artists and professional, and corruptsinnocent millions of youth and promising intellectualseverywhere.”

3. In the words of Krishna Iyer, J., “the global scenario in itssombre macabre, devouring delinquency, is dominated by drug abuseand narcotic trade. Trafficking in drugs and psychotropic substances isnot any local or regional crime confined only to India and third-worldcountries, but is worldwide phenomenon. All nations including India,had huge drug abuse as threat to the survival of human beings.”

A4. Illicit drug trafficking is an organised crime, highly sophisticatedand complex. This illicit traffic, cleverly carried out by hardened criminalswith dexterity and skill, not only violates national drug laws andinternational conventions, but also involves many other criminal activities,including racketeering, conspiracy, bribery and corruption of publicofficials, tax evasion, banking law violations, illegal money transfers,Bimport/export violations, crimes of violence and terrorism.

5. Narcotics are often supplied for money and also in exchangefor weapons. There are numerous drug trafficking mafia yielding,immense power in various regions of the world, including India. Thefar-reaching consequences of illicit drug trade, even threatens the integrityCand stability of governments and renders law enforcement actionvulnerable.

6. Considering the huge profits derived by drug barons fromrampant consumption of opium and other narcotic drugs, tycoons of thedrug cartels, who have international links, go to any extent, to exploit andDmanipulate unhealthy economic conditions, as well as corruption andweaknesses in the administration, to push drugs into the society, incomplete disregard of the health, morality and well-being of the people.

7. India has been directly engulfed in drug trafficking by virtue ofits geographical location, flanked on three sides by illicit narcotic drugEproduction regions. To the West lies the Golden Crescent, comprisingIran, Afghanistan and Pakistan, which illegally produce huge volumeof opium, converted into heroin in illicit factories. In the East, the GoldenTriangle is made up of Burma, Thailand and Laos, which producethousands of tons of opium, cultivated over thousands of hectares ofFland. The third flank is along the 1,568 km border with Nepal in theNorth. The Himalayan foot hills and the Terrai regions of Nepal produceinter alia ‘cannabis restin’. The long land border with Pakistan and anetwork of airports and seaports linking India to other countries hasfacilitated illegal trafficking in drugs.

G8. India is not only transit point for the export of narcotic drugsfrom the regions surrounding it, to Western and other countries. Indiaalso provides lucrative market for narcotic drugs and psychotropicsubstances. That apart, there is widespread illicit cultivation of plantsyielding narcotic drugs, like opium and ganja in India.

9. Illicit drugs from the Golden Crescent, the Golden Triangle, aswell as from Nepal and China, are smuggled into India for consumptionand sale and also onward transmission to other countries. Illicit drugsfind their way, inter alia, into metropolitan cities of India like Delhi,Mumbai, Bengaluru etc. The amount of illicit narcotic drugs that areseized in India by law enforcement authorities, only constitute the tip ofthe iceberg.

10. The menace of illicit, manufacture and sale of narcotic drugsand psychotropic substances has been of international concern. As earlyas in July 1906, Reverend Brent wrote letter to President Rooseveltexpressing his anxiety over the increasing illicit traffic in opium and thenecessity of curbing the same. That was followed by series of meetingsamongst various nations of the world, at regular intervals, leading to theenactment of several Drug Laws in those nations.

11. An International Convention was held at Hague in 1912, tointer alia regulate the preparation and sale of raw and prepared opiumand other derivatives like Morphine and Cocaine etc. However, theenforcement of the said Convention was kept in abeyance for nearly sixyears, presumably due to the first World War, and came into force in themiddle of 1919.

12. In 1920-1923, the Council of the League of Nations, entrustedthe control, manufacture, trade and traffic in drugs inter alia to theAssembly and Council of the League of Nations, the Advisory Committeeon the subject relating to traffic in opium and other dangerous drugs, theHealth Committee of the League of Nations and its Supervisory Body.

13. The second International Opium Convention, held in Greecein 1925 led to the Geneva Opium Agreement, 1925 which came intoforce in 1926. The Geneva Opium Agreement made elaboraterecommendations in respect, of the problems relating to intake and illicittraffic of opium. The next Convention was held at Geneva in 1931 forlimiting the manufacture as well as regulating the distribution of Narcoticdrugs. In 1936, another Convention for the suppression of illicit traffic indangerous drugs was held in Geneva. The Resolutions adopted in theconvention came into force in 1939.

14. In 1946, the United Nations established the Commission forNarcotic Drugs as functional Commission of the Economic and theSocial Council. In 1953, the Commission formulated Protocols for limiting

Aand regulating the cultivation of opium plant, international whole-saletrade in opium and the use of opium.

15. In 1961 Single Convention of Narcotic Drugs was adoptedby the United Nations with the objects of: -

1. Codification of the existing multilateral Convention on drugs.

2. Simplification of the International Control Machinery.

3. Extension of the Control System to the cultivation of othernatural products like Cannabis, Resin and Coca leaves in additionto opium and poppy straw and

C4. Adoption of appropriate measures for the treatment andrehabilitation of drug addicts.

16. Schedules I to IV of the said Convention included almost alldrugs and Narcotics substances, as well as preparations thereof, whichwere then in use. The Convention was signed in New York on MarchD31, 1961 and came into force on December 13, 1964.

17. Convention of Psychotropic Substances was held at Viennafrom 11th January, 1971 to 21[st] February, 1971. The Resolutions adoptedin the Convention of Psychotropic Drugs, which came into force witheffect from August, 1971, contemplated restriction of the use andEpreparation of psychotropic substances. It was also resolved that stringentpenal provisions be made to control the use of psychotropic substances.

18. In 1981, the General Assembly of the United Nations adoptedan International Drug Abuse Control Strategy and five-year ActionPlan for 1982-86. In 1984 the U.N. General Assembly adopted theFdeclaration on the Control of Drug Trafficking and Drug Abuse. Again,there was an International Conference on drug abuse and illicit traffickingheld in Vienna from June 17 to June 26, 1987. The principal documentprepared before the Conference by the United Nations was acomprehensive multi-disciplinary plan of future activities to control drugabuse.G

19. The United Nations Conference held at Vienna from 25[th]November to 20[th] December, 1988 expressed concern at the magnitudeof and rising trends in the illicit production of, demand for and traffic inNarcotic Drugs and Psychotropic Substances all over the world and

therefore adopted the Convention against illicit traffic in Narcotic Drugsand Psychotropic Substances, 1988. The purpose of the Conventionwas as follows:

“1. The purpose of this Convention is to promote co-operationamong the parties so that they may address more effectivelythe various aspects of illicit traffic in narcotic drugs andpsychotropic substances having an international dimension.In carrying out their obligations under the Convention, theparties shall take necessary measure, including legislativeand administrative measures, in conformity with thefundamental provisions of their respective domestic legislativesystems.

2. The parties shall carry out their obligations under thisConvention in manner consistent with the principles ofsovereign equality and territorial integrity of States and affairsof other States.

3. Party shall not undertake in the territory of another Partythe exercise of jurisdiction and performance of functionswhich are exclusively reserved for the authorities of that otherparty by its domestic law”.

20. The Resolutions passed in the said Convention pertained tooffences and sanctions relating to illicit trafficking in narcotic drugs andpsychotropic substances, exercise of Jurisdiction, confiscation, extradition,mutual legal assistance, transfer of proceedings, co-operation and training,international cooperation and assistance, controlled delivery, enactmentof provisions to prevent diversion of trade, materials and equipment forillicit production of narcotic drugs and psychotropic substances, measuresto eradicate illicit cultivation of narcotic plants and elimination of illicitdemand for narcotic drugs and psychotropic substances.

21. India participated in many of the international conferencesand/or conventions. India had participated in the Second InternationalOpium Conference at Geneva on 17th November, 1924 and again on19th February, 1925, and adopted the convention relating to dangerousdrugs. Being signatory to the said Convention, which resolved to takefurther measure to suppress the contraband traffic in and abuse ofDangerous Drugs especially those derived from Opium, Indian Hempand Coca Leaf, the Indian Legislature passed the Dangerous Drugs

AAct, 1930 to control certain operations relating to dangerous drugs andprovide for increased penalties for the offences relating to suchoperations. The said Act was amended from time to time by variouslegislations.

22. It may be pertinent to point out that, even before the enactmentBof the Dangerous Drugs Act of 1930, there was statutory control overNarcotic Drugs in India through enactments like the Opium Acts of1857 and 1878.

23. With the developments in the field of illicit drug traffic anddrug abuse at the National and International level, many flaws wereCnoticed in the laws. It was realised that the provisions of the Acts werenot stringent enough to effectively control drug abuse and related crimeslike preparation, transport, sale etc. of narcotic drugs and psychotropicsubstances. The laws in existence were not deterrent to illicit businessin narcotic drugs and psychotropic substances. An urgent need was,therefore, felt for introducing comprehensive legislation on NarcoticDDrugs and Psychotropic Substances.

24. The NDPS Act has been enacted, inter alia, to implementInternational Conventions relating to narcotic drugs and psychotropicsubstances to which India has been party and also to implement theConstitutional policy enshrined in Article 47 of the Constitution of India,Ewhich casts duty upon the State to improve public health and also toprohibit consumption, except for medicinal purposes, of drugs which areinjurious to health.

25. As stated in its Preamble, the NDPS Act has been enacted toconsolidate and amend the law relating to narcotic drugs, to make stringentFprovisions for the control and regulation of operations relating to narcoticdrugs and psychotropic substances, to provide for the forfeiture ofproperty derived from, or used in, illicit traffic in narcotic drugs andpsychotropic substances, to implement the provisions of the InternationalConventions on Narcotic Drugs and Psychotropic Substances and forGmatters connected therewith. It is not penal statute like the IndianPenal Code (IPC).

26. The Statement of Objects and Reasons for the NDPS Act aslaid before Parliament is as under:

“The statutory control over narcotic drugs is exercised in IndiaHthrough number of Central and State enactments. The

Principal Central Acts, namely, the Opium Act, 1857, theOpium Act, 1878 and the Dangerous Drugs Act, 1930 wereenacted long time ago. With the passage of time and thedevelopments in the field of illicit drug traffic and drug abuseat national and international level many deficiencies in theexisting laws have come to notice, some of which are indicatedbelow:

(i) The scheme of penalties under the present Acts is notsufficiently deterrent to meet the challenge of well organisedgangs of smugglers. The Dangerous Drugs Act, 1930 providesfor maximum term of imprisonment of three years with orwithout fine and four years imprisonment with or without finewith repeat offences. Further, no minimum punishment isprescribed in the present laws, as result of which drugtraffickers have been sometimes let off by the courts withnominal punishment. The country has for the last few yearsbeen increasingly facing the problem of transit traffic of drugscoming mainly from some of our neighbouring countries anddestined mainly to western countries.

(ii) The existing central laws do not provide for investing theofficers of number of important central enforcement agencieslike narcotics, customs, central excise etc., with the power ofinvestigation of offences under the said laws.

(iii) Since the enactment of the aforesaid three Central Acts avast body of international law in the field of narcotics controlhas evolved through various international treaties andprotocols. The Government of India has been party to thesetreaties and conventions which entail several obligationswhich are not covered or are only partly covered by the presentActs.

(iv) During the recent years new drugs of addiction whichhave come to be known as psychotropic substances haveappeared on the scene and posed serious problems to nationalgovernments. There is no comprehensive law to enableexercise of control over psychotropic substances in India inthe manner as envisaged in the Convention on PsychotropicSubstances, 1971 to which also India has acceded.”

A27. The NDPS Act was prompted by an urgent need to enact acomprehensive legislation to, inter alia, consolidate and amend theexisting laws relating to narcotic drugs and psychotropic substances,strengthen the existing controls over drug abuses, prevent the funding ofillicit trade in narcotic drugs and psychotropic substances enhance thepenalties particularly for trafficking offences, make provisions forBexercising effective control over psychotropic substances and to makeprovisions for the implementation of international conventions relating tonarcotic drugs and psychotropic substances, which India has endorsed.The NDPS Act also envisages the Constitution of National Fund forthe control of drug abuse.C28. There are two main enactments on the subject, the NDPSAct and the Prevention of Illicit Traffic in Narcotic Drugs andPsychotropic Substances Act, 1988, hereinafter refered to as the 1988Act.

29. The NDPS Act consolidated and amended the existing lawsDrelating to narcotic drugs, strengthened the existing control over drugabuse, considerably enhanced the punishments particularly for traffickingoffences, made provision for exercising effective control overpsychotropic substances and provided for the implementation of the thenexisting international conventions.E30. The NDPS Act with Chapters I to VIII, comprises 83 sections.Chapter I contains the short title of the Act, definitions of various wordsand expressions used therein and provision enabling addition to anddeletion from the list of psychotropic substances.

31. Chapter II of the NDPS Act enables the Central GovernmentFto take measures for preventing and combating the abuse of narcoticdrugs and psychotropic substances and the illicit traffic therein and alsoempowers the Central and/or State Government to appoint inter alia aCommission, Consultative Committee, other authorities and officersfor the purposes of the said Act. Chapter IIA inter alia provides forGthe constitution of National Fund for control of drug abuse.

32. In exercise of power conferred by Section 4(3) of the NDPSAct, the Central Government constituted the Narcotics Control Bureau,hereinafter referred to as NCB. The officers of the NCB are not policeofficers, but are from different departments of the Government, including

officers of the Directorate of Revenue Intelligence, Customs Officersand Central Excise Officers.

33. The Narcotics Control Bureau (NCB)has been combating drugtrafficking in India. Moreover, in view of India’s commitment tointernational cooperation for suppression of drug trafficking, NCB hasalso been playing key role in assisting authorities in foreign countries tosuppress illicit drug trade.

34. Chapter III of the NDPS Act comprising Sections 8 to 14prohibits and/or controls and/or regulates certain operations and activitiesrelating to narcotic drugs and psychotropic substance, and also relatingto property derived from an offence under the NDPS Act, as well asproperty including any building, warehouse or vehicle used in connectionwith an offence under the NDPS Act.

35. Sections 15 to 32B in Chapter IV provide for punishment forcontraventions in relation to poppy straw, coca plant and coca leaves,prepared opium, opium poppy and opium, cannabis plant, manufactureddrugs and preparations, psychotropic substances, illegal import or exportof narcotic drugs and psychotropic substances, external dealings innarcotic drug and psychotropic substances, etc.

36. Section 35(1) of the NDPS Act provides that in “anyprosecution for an offence under this Act which requires culpablemental state of the accused, the court shall presume the existence ofsuch mental state but it shall be defence for the accused to provethe fact that he had no such mental state with respect to the actcharged as an offence in that prosecution.” As per the Explanationto Section 35(1) “culpable mental state includes intention motive,knowledge of fact and belief in, or reason to believe, fact.”Section 35(2) provides that for the purpose of Section 35 fact is saidto be proved only when the court believes it to exist beyond areasonable doubt and not merely when its existence is establishedby preponderance of probability.”

37. The constitutional vires of Section 35 of the NDPS Act hasbeen upheld by this Court in Noor Aga v. State of Punjab and Anr.[3].This Court held:-

"23. Section 35 of the Act provides for presumption of culpable

Amental state. It also provides that an accused may prove thathe had no such mental state with respect to the act chargedas an offence under the prosecution. Section 54 of the Actplaces the burden of proof on the accused as regardspossession of the contraband to account for the samesatisfactorily.

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34. The Act contains draconian provisions. It must, however,be borne in mind that the Act was enacted having regard tothe mandate contained in International Conventions onCNarcotic Drugs and Psychotropic Substances. Only becausethe burden of proof under certain circumstances is placed onthe accused, the same, by itself, in our opinion, would notrender the impugned provisions unconstitutional.

35. right to be presumed innocent, subject to theDestablishment of certain foundational facts and burden ofproof, to certain extent, can be placed on an accused. Itmust be construed having regard to the other internationalconventions and having regard to the fact that it has beenheld to be constitutional. Thus, statute may be constitutionalbut prosecution thereunder may not be held to be one.EIndisputably, civil liberties and rights of citizens must beupheld.

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55. The provisions of Section 35 of the Act as also Section 54Fthereof, in view of the decisions of this Court, therefore, cannotbe said to be ex facie unconstitutional. We would, however,keeping in view the principles noticed hereinbefore examinethe effect thereof, vis-‘-vis the question as to whether theprosecution has been able to discharge its burden hereinafter."

38. Section 36 of the NDPS Act provides for the constitution ofGSpecial Courts for speedy trial of offences under the said Act. Section36A(1) inter alia provides that notwithstanding anything contained inthe Code of Criminal Procedure, 1973 all offences under the NDPSAct, which are punishable with imprisonment for term of more thanthree years are to be triable only by the Special Court constituted underHthe said Act.

39. Section 36A(5) of the NDPS Act provides that notwithstandinganything contained in the Code of Criminal Procedure, 1973, the offencespunishable under NDPS Act, with imprisonment for term of not morethan three years, may be tried summarily.

40. Chapter V of the NDPS Act comprising Sections 41 to 68prescribes the procedures to be followed by the officers appointed underthe NDPS Act, for exercise of the powers of entry, search, seizurearrest, disposal of seized materials, inquiry and investigation forimplementation of the provisions of the said Act.

41. Chapter VA consisting of 25 sections, inserted in the NDPSAct by the NDPS Amendment Act, 1988, provides for forfeiture ofincome, earnings or assets derived from or attributable to thecontravention of the NDPS Act.

42. Chapter VI being the last chapter contains miscellaneousprovisions including Sections 79, 80 and 81 set out hereinbelow:-

“79. Application of the Customs Act, 1962.—All prohibitionsand restrictions imposed by or under this Act on the importinto India, the export from India and transhipment of narcoticdrugs and psychotropic substances shall be deemed to beprohibitions and restrictions imposed by or under the CustomsAct, 1962 (52 of 1962) and the provisions of that Act shallapply accordingly: Provided that, where the doing of anythingis an offence punishable under that Act and under this Act,nothing in that Act or in this section shall prevent the offenderfrom being punished under this Act.

80. Application of the Drugs and Cosmetics Act, 1940 notbarred.—The provisions of this Act or the rules madethereunder shall be in addition to, and not in derogation of,the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rulesmade thereunder.

81. Saving of State and special laws.—Nothing in this Act orin the rules made thereunder shall affect the validity of anyProvincial Act or an Act of any State Legislature for the timebeing in force, or of any rule made thereunder which imposesany restriction or provides for punishment not imposed byor provided for under this Act or imposes restriction orprovides for punishment greater in degree than

Acorresponding restriction imposed by or correspondingpunishment provided for by or under this Act for the cultivationof cannabis plant or consumption of, or traffic in, anynarcotic drug or psychotropic substance within India.”

43. The scheme of the NDPS Act makes it patently clear that itBessentially makes provisions, as are deemed necessary, for preventingand combating the abuse of and illicit trade and trafficking in narcoticdrugs and psychotropic substances, including the financing of (i) thecultivation of coca plant; (ii) cultivation of opium poppy or any cannabisplant; (iii) the production, manufacture, possession, sale, purchase,transportation, warehousing, concealment, use, consumption, import inter-CState, export inter-State, import into India, export from India ortranshipment of narcotic drugs or psychotropic substances; (iv) dealingin any activities in narcotic drugs or psychotropic substances other thanthose referred to above or (v) the hiring or letting out any premises forthe carrying on of any of the activities referred to above.

44. The NDPS Act has been amended by the NDPS (Amendment)Act, 1988, to provide for some stringent measures, including provisionfor death penalty in certain cases of commission of offence after previousconviction and most of the offences under the Act have been made non-bailable. It also introduced new Chapter V to the NDPS Act, basedEon the Vienna Convention of 1988, which provided for forfeiture ofproperty derived from or used in illicit traffic.

45. The object of the aforesaid amendment as stated in the Objectsand Reasons of the NDPS (Amendment) Act, 1988 placed beforeParliament is as follows:-F“

“6. Statement of objects and reasons of the Narcotic Drugsand Psychotropic Substances (Amendment) Act, 1988.- (1)In recent years, India has been facing problem of transittraffic in illicit drugs.The spill over from such traffic hascaused problems of abuse and additction. The Narcotic DrugsGand Psychotropic Substances Act, 1985 provides deterrentpunishments for drug trafficing offences. Even though themajor offences are non-bailable by virtue of the level ofpunishments, on technical grounds, drug offenders were beingreleased on bail. In the light of certain difficulties faced inthe enforcement of the Narcotic Drugs and Psychotropic

Substances Act, 1985, the need to amend the law to furtherstrengthen it, has been felt.

(2) Cabinet Sub-Committee, which was constituted forcombating drug traffic and preventing drug abuse, alsomade number of recommendations of the Cabinet Sub-Committee and the working of the Narcotic Drugs andPsychotroipc Substances Act, in the last three years, it isproposed to amend the said Act.

The amendments, inter alia, provide for the following :

(i) to constitute National Fund for control of Drugs abuse tomeet the expenditure incurred in connection with the measuresfor combating illicit traffic and preventing drug abuse;

(ii) to bring certain controlled substances, which are used formanufacture of Narcotic drugs and Psychotropic Substances,under the ambit of Narcotic Drugs and PsychotropicSubstances Act and to provide deterrent punishment for violationthereof;

(iii) to provide that no sentence awarded under the Act shallbe suspended, remitted or commuted;

(iv) to provide that no sentence awarded under the Act shallbe suspended, remitted or commuted;

(iv) to provide for pre-trial disposal of seized drugs;

(v) to provide death penalty on second conviction in respect ofspecified quantities of certain drugs;

(vi) to provide for forfeiture of property and detailed procedurerelating to the same; and

(vii) to provide that the offences shall be cognizable and non-bailable.

(3) The Bill seeks to achieve the above objectives.”

46. The NDPS Act was further amended by the NDPS(Amendment) Act, 2001, to rationalize the sentence structure to ensurethat drug traffickers who traffic in significant quantities of drugs arepunished with deterrent sentences, but addicts and others who commitless serious offences, are sentenced to less severe punishment. There

Awere further amendments by the NDPS (Amendment) Act 2014 andthe Finance Act 2016 (28 of 2016).

47. However, despite an elaborate statutory framework, the NDPSAct is not being effectively implemented. It is difficult to check theexpanding network of drug-traffickers. To evade the enforcementBauthorities, the drug traffickers take recourse to the most ingenious anddevious ways of trading illicitly in narcotic drugs and psychotropicsubstances. Investigations are often half-hearted, for various reasonsincluding underhand deals.

48. Illicit business in and consumption of narcotic drugs andCpsychotropic substances is endangering the social and economic stabilityof India and the developing countries, adversely affecting the health ofthe people, causing malnutrition related ailments, causing spurt in crimesand increase in the spread of communicable diseases such as AIDS(Acquired Immuno Deficiency Syndrome), caused by sharing of needlesfor administration of narcotic drugs. The lure of money, vulnerability ofDadolescents, poverty and other facets of socio-economic deprivationsaggravate this menace and provide sustenance to the racketeers involvedin this flourishing illicit business.

49. The Law Commission of India, in its 155[th] Report on NarcoticDrugs and Psychotropic Substances Act, 1985, submitted in July, 1997,Einter alia, stated: -

“The crimes are generally of two kinds:

(a) Traditional crimes affecting individual persons, likemurder, theft, assault, etc.;

F(b) White-Collar Crimes or Socio Economic Crimes affectingthe public at large like smuggling, hoardings, adulteration,illicit trafficking and sale of narcotic drugs and psychotropicsubstances etc. White-collar crimes are of recent origin andmay be defined as all illegal acts committed by unlawful means— the purpose being to obtain money or property or businessGor personal gain or profit. Such crimes are committed by theorganised gangs having influence. Some of the salient featuresof the white-collar crimes are as under:

(a) there is no social sanction against such white-collarcrimes;H

(b) these crimes are committed by organised gangsequipped with most modern technology;

(c) there is generally nexus between the politicians, lawenforcing agencies and the offenders indulging directlyin such crimes;

(d) there is no organised public opinion against suchcrimes; and

(e) the traditional crimes are isolated crimes, while thewhite-collar crimes are part and parcel of the society.

1.3. Drug Trafficking and illicit use of Narcotic Drugs andPsychotropic Substances.—The genesis and development ofthe Indian drug trafficking scenario are closely connectedwith the strategic and geographical location of India whichhas massive inflow of heroin and hashish from across the Indo-Pak border originating from “Golden Crescent” comprisingof Iran, Afghanistan and Pakistan which is one of the majorillicit drug supplying areas of the world. On the North Easternside of the country is the “Gold Triangle” comprising ofBurma, Loas and Thailand which is again one of the largestsources of illicit opium in the world. Nepal also is traditionalsource of cannabis, both herbal and resinous. Cannabis isalso of wide growth in some states of India. As far as illicitdrug trafficking from and through India is concerned, thesethree sources of supply have been instrumental in drugtrafficking. Prior to the enactment of the Narcotic Drugs andPsychotropic Substances Act, 1985, the statutory control overnarcotic drugs was exercised in India through number ofCentral and State enactments. The principal Central Acts were(a) the Opium Act, 1857, (b) the Opium Act, 1878 and (c) theDangerous Drugs Act, 1930.”

50. Socio-economic crimes such as trafficking in narcotic drugsand psychotropic substances, food adulteration, black marketing,profiteering and hoarding, smuggling, tax evasion and the like, which are“white collar crimes” affect the health and material welfare of thecommunity as whole, as against that of an individual victim, and are, byand large, committed not by disadvantaged low class people, but by veryaffluent and immensely powerful people, who often exploit the less

Aadvantaged, to execute their nefarious designs. Such crimes have to bedealt with firmly and cannot be equated with other crimes, committed byindividual offenders against individual victims.

51. There can be no doubt at all, that the right to fair trial,encompassing fair procedure is guaranteed under Article 21 ofBthe Constitution of India. It is too late in the day to contendotherwise. The safeguards provided in statute, are alwaysscrupulously to be adhered to, more so when the punishment isvery severe. However, in my view, each case has to be decidedtaking into account all relevant factors, particularly, the evidenceagainst the accused.C

52. It is well settled principle of criminal jurisprudence that anaccused is presumed innocent, unless proved guilty beyond reasonabledoubt, except where the statute, on existence of certain circumstances,casts reverse burden on the accused, to dispel the presumption of guilt,as in the case of Section 304B of the Indian Penal Code and many otherDstatutes, particularly those dealing with socio economic offences. TheLegislature may, in public interest, create an offence of strict liabilitywhere mens rea is not necessary. There are presumptive provision inthe NDPS Act, such as Sections 35, 54 and 66. Under Section 54 of theNDPS Act presumption of commission of an offence may, inter alia, beEdrawn from the possession of any narcotic drug or psychotropicsubstance, or any apparatus for manufacture or preparation thereof.The presumption is rebuttable.53. The punishments prescribed for many of the offences underthe NDPS Act are very severe, as observed by my esteemed brother,FNariman J. Sections 21(b), 22(b), 23(b) and 25A prescribe punishmentof rigorous imprisonment, which may extend to ten years. Sections21(c) and 23(c), 24 and 27A prescribe the punishment of rigorousimprisonment for term which shall not be less than ten years but mayextend to twenty years. Offences under Section 27B are punishablewith rigorous imprisonment of not less than 3 years which may extend toG10 years. Under Section 28, attempts to commit an offence entailpunishment for the offence. Section 29 makes abetment of and criminalconspiracy to commit an offence, under the NDPS Act punishable withthe punishment for the offence. Section 30 prescribes punishment ofrigorous imprisonment for preparation for offences, for term which isHnot to be less than one half of the minimum term if any, but might extend

to one half of the maximum term of imprisonment, which might havebeen awarded for committing the offence. Section 31 provides forenhanced punishment for offences repeated after previous convictionincluding death sentence in some exceptional cases. Certain provisions,such as Sections 35, 54 and 66 for presumptions, though rebuttable, alsooperate against the accused under the NDPS Act. When statutehas drastic penal provisions, the authorities investigating thecrime under such law, have greater duty of care, and theinvestigation must not only be thorough, but also of very highstandard.

54. There are inbuilt safeguards in the NDPS Act to protect aperson accused of an offence under the said Act, from unnecessaryharassment, or malicious or wrongful prosecution. Reference may inparticular be made to Section 58, set out hereinafter, which provides forpunishment of any person, authorized under Section 42 or 43 or 44 forvexatious entry, search, seizure, or arrest.

“58. Punishment for vexatious entry, search, seizure orarrest.—(1) Any person empowered under section 42 orsection 43 or section 44 who— (a) without reasonable groundof suspicion enters or searches, or causes to be entered orsearched, any building, conveyance or place; (b) vexatiouslyand unnecessarily seizes the property of any person on thepretence of seizing or searching for any narcotic drug orpsychotropic substance or other article liable to beconfiscated under this Act, or of seizing any document orother article liable to be seized under section 42, section 43or section 44; or (c) vexatiously and unnecessarily detains,searches or arrests any person, shall be punishable withimprisonment for term which may extend to six months orwith fine which may extend to one thousand rupees, or withboth. (2) Any person wilfully and maliciously giving falseinformation and so causing an arrest or search being madeunder this Act shall be punishable with imprisonment for aterm which may extend to two years or with fine or with both.

55. As argued by Mr. Sushil Kumar Jain, Senior Advocateappearing for the Appellant, the process under the NDPS Act begins,when competent officer, as specified in Section 41(2), empowered bya general order of the Central Government or the State Government,

Ahas reason to believe, either from his personal knowledge or frominformation given by any person, whose name need not be disclosed,and taken down in writing, that any person has committed an offencepunishable under the NDPS Act or any narcotic drug, psychotropicsubstance or any document, article etc. as mentioned in Section 41(2) iskept concealed in any building conveyance or place.B

56. The power of an officer empowered under Section 41(2) toauthorize arrest or search, is subject to his having reason to believefrom personal knowledge or information given by any person and takenin writing, that the person has committed an offence punishable underthe NDPS Act or that any narcotic drug or psychotropic substance orCcontrolled substance in respect of which any offence under the NDPSAct has been committed, or any document or other article which mayfurnish evidence of the commission of such offence or any illegallyacquired property or any document or other article which may furnishevidence of holding any illegally acquired property which is liable forDseizure or freezing or forfeiture under Chapter VA of this Act, is kept orconcealed in any building, conveyance or place.

57. Section 42 enables duly empowered officer to enter anybuilding, conveyance or place, conduct search, seize narcotic drugs,psychotropic substances, and other articles in accordance with SectionE42(1)(c), and detain, search or even arrest any person, subject to hishaving “the reason to believe, from personal knowledge orinformation given by any person and taken down in writing thatany narcotic drug, or psychotropic substance, or controlledsubstance in respect of which an offence punishable under this Acthas been committed or any document or other article which mayFfurnish evidence of the commission of such offence or any illegallyacquired property or any document or other article which mayfurnish evidence of holding any illegally acquired property whichis liable for seizure or freezing or forfeiture under Chapter V-A ofthis Act is kept or concealed in any building, conveyance or enclosedGplace.”

58. Section 42(2) requires the officer taking down informationand/or recording the grounds of his belief, to send copy thereof to hisimmediate superior within 72 hours. Section 43 enables any officer ofany of the departments mentioned in Section 42 to make arrests and

seizures of inter alia narcotic drugs and psychotropic substances inpublic places, subject to his having reason to believe that an offenceunder the NDPS Act has been committed, and along with such drug orsubstance, any animal or conveyance or article liable to confiscationunder the NDPS Act, any document or other article, which he has reasonto believe may furnish evidence of the commission of an offencepunishable under the NDPS Act, or any document or other article whichmay furnish evidence of holding any illegally acquired property, which isliable for seizure or freezing or forfeiture under Chapter VA of the NDPSAct. The safeguards in Sections 41(2), 42 and 43 also apply to theexercise of powers under Section 44 of entry, search, seizure and arrestin relation to coca plant, opium, poppy and cannabis plant by officersempowered and/or authorized under Section 42. The Power of an officerempowered under Section 42 to attach opium, poppy, cannabis plant orcoca plant under Section 48 is subject to his having reason to believethat the same have illegally been cultivated.

59. The condition precedent for exercise of power under Sections41(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 actionthereunder exist. The use of the words “reason to believe” in Sections41, 42, 43 and 48 is in contradistinction with use of the phrase “Reasonto Suspect”, in Section 49 of the NDPS Act.

60. In A. S. Krishnan and Ors. v. State of Kerala[4], cited by Mr.Sushil Kumar Jain, this Court held:-

“9. ….”Reason to believe” is another facet of the state of mind.“Reason to believe” is not the same thing as “suspicion” or“doubt” and mere seeing also cannot be equated to believing.“Reason to believe” is higher level of state of mind. Likewise“knowledge” will be slightly on higher plane than “reasonto believe”. person can be supposed to know where there isa direct appeal to his senses and person is presumed tohave reason to believe if he has sufficient cause to believethe same.

61. In Income Tax Officer, I Ward, District VI, Calcutta andOrs. v. Lakhmani Mewal Das[5]cited by Mr. Jain, this court held:-

4 (2004) 11 SCC 576

5 (1976) 3 SCC 757

A“8. ……..The expression “reason to believe” does not mean apurely subjective satisfaction on the part of the Income TaxOfficer. The reason must be held in good faith. It cannot hemerely pretence. It is open to the court to examine whetherthe reasons for the formation of the belief have rationalconnection with or relevant bearing on the formation of theBbelief and are not extraneous or irrelevant for the purpose ofthe section.”

62. The absence of “reasons to believe” would render entry, search,seizure or arrest, Sections 41(2) 42, 43 and 44 of the NDPS Act bad inlaw and also expose the officer concerned to disciplinary action as alsoCpunishment under Section 58 for “vexatious” entry, search, seizure orarrest, as argued by Mr. Jain.

63. The power of an officer authorised under Section 42, to stopand search conveyance under Section 49, is subject to his having reasonsto suspect that any animal or conveyance is, or is about to be, used forDthe transport of any narcotic drug or psychotropic substance or controlledsubstance, in respect of which he suspects that any provision of theNDPS Act has been, or is being, or is about to be, contravened.

64. Section 50(1) gives the option to person, to be personallysearched under Section 41/42, to require that he be taken before theEnearest Magistrate or Gazetted Officer, in whose presence he might besearched. If he cannot be taken to the nearest Magistrate or GazettedOfficer, for the reasons contained in Section 50(5), the officer authorizedunder Section 42 may proceed to search him, as provided under Section100 of the Cr.P.C.F

65. Section 50(5), inserted by amendment in 2001, does not dilutethe safeguards in the preceding sub-sections for search of person inthe presence of Magistrate or Gazetted Officer, if such person sorequires. It is only in very urgent cases, that person can be examinedin accordance with Section 50(5). After the search is so conducted inGterms of Section 50(5), the Officer would have to record the reasons forthe belief, which necessitated such search, in the absence of Magistrateor Gazetted Officer, and send copy thereof to his immediate superiorofficer within 72 hours. [Section 50(6)]. Section 51 makes theprovisions of the Cr.P.C. applicable to all warrants, arrests, searchesand seizures under the NDPS Act, insofar as they are not inconsistentHwith the NDPS Act.

66. Section 52(1) of the NDPS Act provides that any officerarresting person under Section 41, Section 42, Section 43 or Section 44shall, as soon as may be, inform him of the grounds for such arrest.Section 52(2) requires that every person arrested and article seized underwarrant issued under sub-section (1) of Section 41, shall be forwardedwithout unnecessary delay to the Magistrate by whom the warrant wasissued. Sub-section (3) of Section 52 requires that every person arrestedand article seized under sub-section (2) of Section 41, Section 42, Section43 or Section 44 shall be forwarded without unnecessary delay to—

(a) the Officer-in-Charge of the nearest Police Station, or

(b) the officer empowered under Section 53.

67. For imposing punishment higher than the minimum term ofimprisonment or amount of fine prescribed, the Court is required to takeinto account, in addition to such factors as it deems fit, the followingfactors:

(a) the use or threat of use of violence or arms by the offender;

(b) the fact that the offender holds public office and that hehas taken advantage of that office in committing the offence;

(c) the fact that the minors are affected by the offence or theminors are used for the commission of an offence;

(d) the fact that the offence is committed in an educationalinstitution or social service facility or in the immediate vicinityof such institution or faculty or in other place to which schoolchildren and students resort for educational, sports and socialactivities;

(e) the fact that the offender belongs to organisedinternational or any other criminal group which is involvedin the commission of the offence; and

(f) the fact that the offender is involved in other illegalactivities facilitated by commission of the offence.

68. The NDPS Act is complete code. The NDPS Act specificallymakes some provisions of the Cr.P.C applicable to proceedings underthe NDPS Act. The Act is very specific on which of the provisions ofthe Cr.P.C. are to apply to proceedings under the NDPS Act.

A69. careful reading of the provisions of the NDPS Act show:(i) Words and expressions used in the NDPS Act and notdefined in the said Act, but defined in the Cr.P.C. would, unlessthe context otherwise requires, have the meanings assignedto such words and expressions in the Cr.P.C. [Section 2(xxix)]

(ii) Nothing contained in section 360 of the CriminalProcedure Code, 1973 or in the Probation of Offenders Act,1958 is to apply to person convicted under the NDPS Act,unless such person is under 18 years of age. [Section 33].

(iii) Notwithstanding anything contained in the Cr.P.C, SpecialCourts constituted under Section 36 of the NDPS Act are totry all offences punishable with imprisonment for term ofmore than three years. [Section 36A(1)(a)].

(iv) The Cr.P.C does not apply to the power of JudicialMagistrate to authorize the detention of person accused orsuspected of an offence under the NDPS Act, produced beforehim, in such custody as he thinks fit, for period not exceeding15 days, and that of an Executive Magistrate to do so for aperiod not exceeding 7 days. [Section 36A(1)(b)].

(v) Where person accused or suspected of an offence underEthe NDPS Act, is forwarded to Special Court under Clause(b) of Section 36A of the NDPS act, the Special Court shallhave the same power which Magistrate, having jurisdictionto try case, may exercise under Section 167 of the Cr.P.C.,notwithstanding anything to the contrary in the Cr.P.C.F[Section 36A(1)(c)].

(vi) While trying an offence under the NDPS Act, the SpecialCourt may also try an offence other than an offence underthe NDPS Act, with which the accused may under the Cr.P.C.be charged at the same trial. [Section 36A(2)].

(vii) Nothing contained in Section 36A of the NDPS Act is tobe deemed to affect the special powers of the High Courtregarding bail under Section 439 of Cr.P.C. [Section 36A(3)].

(viii) In respect of offences under the NDPS Act punishableunder Sections 19 or 24 or 27A thereof involving commercialHquantity, the references in Section 167(2) of the Cr.P.C. to

“90 days” where they occur, are to be construed as referenceto 180 days. [Section 36A(4)].

(ix) Notwithstanding anything contained in the Cr.P.C.,offences punishable under NDPS Act, with imprisonment notexceeding three years might be tried summarily. [Section 36A(5)]

(x) The High Court might exercise, so far as may be, all thepowers of Appeal and Revision conferred by Chapter XXIXand XXX of the Cr.P.C. as if Special Court within the limitsof its territorial jurisdiction were Court of Session. [Section36 B]

(xi) Save as otherwise provided in the NDPS Act, the provisionsof the Cr.P.C., (including provisions as to bails and bonds)are to apply to proceedings before Special Court and forthe purpose of the said provisions, the Special Court is deemedto be Court of Session and the person conductingprosecution before Special Court is deemed to be PublicProsecutor. [Section 36 C]

(xii) Until Special Court is constituted as per the NDPS(Amendment) Act, 1988, any offence triable by SpecialCourt, is, notwithstanding anything in the Cr.P.C., triable bya Court of Session. [Section 36 D]

(xiii) The power of the High Court under Section 407 of theCr.P.C. to transfer cases is not affected by Section 36 (2) inview of the proviso thereto.

(xiv) Notwithstanding anything in the Cr.P.C. every offencepunishable under the NDPS Act is cognizable. [Section37(1)(a)]

(xv) Notwithstanding anything in the Cr.P.C., no personaccused of the offences specified in section 37(1)(b) is to bereleased on bail, on his own bond, unless the PublicProsecutor has been given the opportunity to oppose therelease on bail, or where the Public Prosecutor has opposedthe release on bail, the Court is satisfied that there arereasonable grounds for believing that the person is not guiltyof such offence and that he is not likely to commit any offence,while on bail.

(xvi) The limitations in the Cr.P.C. on grant of bail, are inaddition to the limitations in Section 37(1)(b) of the NDPSAct. [Section 37(2)]

(xvii) Personal search is to be made in accordance with Section100 of Cr.P.C. if the person to be searched cannot be takenBto the nearest Magistrate or Gazetted Officer inspite ofexercise of option to be searched before such Magistrate orGazetted Officer. [Section 50(5)]

(xviii) The provisions of the Cr.P.C. are to apply to all warrantsissued and searches and seizures made under the NDPS ActCin so far as they are not inconsistent with any provision of theNDPS Act. [Section 51]

(xix) Notwithstanding anything contained in the IndianEvidence Act, 1872 or the Cr.P.C., every Court is to treat theinventory, photographs of narcotic drugs, psychotropicDsubstances etc. as primary evidence of offence under theNDPS Act. [Section 52A(4)]

70. Under Section 4 of the Cr.P.C all offences under the IndianPenal Code, 1960, hereinafter referred to as ‘IPC’ are to be investigated,inquired into and tried or otherwise dealt with according to the provisionsEof the Cr.P.C. Offences under any other law might also be investigated,inquired into, tried and otherwise dealt with according to the sameprovisions, but subject to any other enactment in force regulating themanner or place of investigating, inquiring into, trying or otherwise dealingwith such offences. Section 4 of the Cr.P.C. is set out hereinbelow:F4. Trial of offences under the Indian Penal Code and otherlaws.—(1) All offences under the Indian Penal Code (45 of1860) shall be investigated, inquired into, tried, and otherwisedealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated,inquired into, tried, and otherwise dealt with according toGthe same provisions, but subject to any enactment for the timebeing in force regulating the manner or place of investigating,inquiring into, trying or otherwise dealing with such offences.

71. Referring to Section 4(2) of the Cr.P.C Mr. Sushil KumarJain, argued that provisions of the Cr.P.C would apply to all proceedingsH

under the NDPS Act, unless intention to the contrary was shown. Mr.Jain also referred to Section 2(xxix) of the NDPS Act in support of hisaforesaid submission.

72. However, Section 5 of the Cr.P.C., set out hereinbelow forconvenience, provides:-

“5. Saving.—Nothing contained in this Code shall, in theabsence of specific provision to the contrary, affect anyspecial or local law for the time being in force, or any specialjurisdiction or power conferred, or any special form ofprocedure prescribed, by any other law for the time being inforce.”

73. Mr. Jain’s argument that the Cr.P.C. would apply to allproceedings under the NDPS Act, unless contrary intention is shown,by reference to Section 4(2) of the Cr.P.C., cannot be sustained, asSection 5 specifically provides that nothing in the Cr.P.C shall, in theabsence of specific provision to the contrary, affect any special law inforce or any special jurisdiction or power conferred by any other law.The NDPS Act being special enactment, nothing in the Cr.P.C canaffect any investigation or inquiry under the NDPS Act, in the absenceof any provision to the contrary in the NDPS Act.

74. Section 2(xxix) of the NDPS Act does not make the provisionsof the Cr.P.C. applicable to any investigation or enquiry under the NDPSAct. The said Section only provides that words and expressions used inthe NDPS Act, and not defined, but defined in the Cr.P.C. have themeanings assigned in the Cr.P.C., unless the context otherwise requires.

75. Section 53 of the NDPS Act provides:

53. Power to invest officers of certain departments with powersof an officer-in-charge of police station.—(1) The CentralGovernment, after consultation with the State Government,may, by notification published in the Official Gazette, investany officer of the department of central excise, narcotics,customs, revenue intelligence or any other department of theCentral Government including para-military forces or armedforces or any class of such officers with the powers of anofficer-in-charge of police station for the investigation ofthe offences under this Act.

A(2) The State Government may, by notification published inthe Official Gazette, invest any officer of the department ofdrugs control, revenue or excise or any other department orany class of such officers with the powers of an officer-in-charge of police station for the investigation of offencesunder this Act.B

76. Section 53 is an enabling provision, which enables the CentralGovernment or the State Government, by notification in the OfficialGazette, to invest any officer of the Departments mentioned in the saidSection, or any other Department of the Government, with the powersof an Officer in Charge of Police Station for the investigation of offencesCunder the said Act.

77. If the provisions of the Cr.P.C were to apply to investigationsunder the NDPS Act, it would not have been necessary to invest anyofficer under the NDPS Act with the powers of an Officer in Charge ofa Police Station, for the purpose of investigation of an offence under theDNDPS Act, by notification in the Official Gazette. The provisions ofSection 50(5) and 51 of the NDPS Act would also not have beennecessary.

78. There does not appear to be any bar in Section 53 or anywhereelse in the NDPS Act, to officers empowered under Sections 41(2) orE42, also being invested under Section 53, with the powers of an Officerin Charge of Police Station for investigation of offences under Section53 of the NDPS Act. There being no bar under the NDPS Act, thesame officer empowered under Section 42, who had triggered the processof an enquiry, and made any search seizure or arrest under Chapter VFof the NDPS Act, on the basis of information provided by an informant,or on the basis of his own personal knowledge, might investigate into theoffence if he is also invested under Section 53, with the powers ofinvestigation of an Officer in Charge of Police Station, for the purposeof investigation of an offence under the NDPS Act.

G79. There does not appear to be any provision in Chapter V orelsewhere in the NDPS Act, which can reasonably be construed to renderan officer under Section, 41(2) or 42(1) of the NDPS Act ‘functus officio’once the entry, search, seizure or arrest has been made. What Section42(2) requires is that, an officer who takes down any information inwriting under Section 42(1) or records the grounds of his belief underH

the proviso thereto, should send copy of the information with the groundsof belief to his immediate official superior, within 72 hours.

80. Section 53A of the NDPS Act provides:

53-A. Relevancy of statements under certain circumstances.—

(1) statement made and signed by person before any officerempowered under Section 53 for the investigation of offences,during the course of any inquiry or proceedings by suchofficer, shall be relevant for the purpose of proving, in anyprosecution for an offence under this Act, the truth of thefacts which it contains,—

(a) when the person who made the statement is dead or cannotbe found, or is incapable of giving evidence, or is kept out ofthe way by the adverse party, or whose presence cannot beobtained without an amount of delay or expense which, underthe circumstances of the case, the court considersunreasonable; or

(b) when the person who made the statement is examined as awitness in the case before the court and the court is of theopinion that, having regard to the circumstances of the case,the statement should be admitted in evidence in the interest ofjustice.

(2) The provisions of sub-section (1) shall, so far as may be,apply in relation to any proceedings under this Act or therules or orders made thereunder, other than proceedingbefore court, as they apply in relation to proceeding beforea court.

81. Section 53A of the NDPS Act is ex facie contradictory toSection 162 of the Cr.P.C, which provides that no statement made to apolice officer, in course of an investigation under Chapter XII of theCr.P.C shall, if reduced to writing, be signed by the person making it, orused for any purpose at any inquiry or trial in respect of the offencesunder investigation, except inter alia to confront him if he gives evidenceas witness.

82. Section 53A covers any statement made and signed by anyperson, before any officer empowered under Section 53 for theinvestigation of offences, during the course of any proceedings by such

Aofficer, under the NDPS Act, be it an inquiry or investigation. Thisprovision makes it abundantly clear that the principles embodied inSections 161/162 of the Cr.P.C have no application to any inquiry orother proceeding under the NDPS Act, which would include aninvestigation.

B83. The judgments of this Court in State of Delhi v. Shri RamLohia[6] and George v. State of Kerala and Anr.[7], cited by Mr. Jain,which were rendered in the context of statements under Section 164 ofthe Cr.P.C. The judgments are of no assistance to the Appellants as theyare not binding precedents in respect of the issues referred to this Bench.Sections 161 to 164 of the Cr.P.C. have no application to proceedingsCunder the NDPS Act, as discussed earlier.

84. The judgment of this Court in Munshi Prasad and Ors.v.State of Bihar[8]cited by Mr. Jain, in the context of reliance on postmortem report in murder trial, is also of no assistance to the appellant,as this Court had no occasion to deal with Section 52A(4) or 54 or 66 orDany other provision of the NDPS Act.

85. The NDPS Act, being special statute, and in any case alater Central Act, the provisions of the NDPS Act would prevail, in caseof any inconsistency between the NDPS Act and the Evidence Act.Section 52A(4) expressly provides:

“Notwithstanding anything contained in the Indian EvidenceAct, 1872 or the Code of Criminal Procedure, 1973, everyCourt trying an offence under this Act, shall treat theinventory, the photographs of narcotic drugs, psychotropicsubstances, controlled substances or conveyances and anyFlist of samples drawn under sub-section (2) and certified bythe Magistrate, as primary evidence in respect of suchoffence.”

86. The Evidence Act would however apply to trial under theNDPS Act in other respects, unless contrary intention appears fromGany specific provision of the NDPS Act. The previous statement of awitness, even if admissible in evidence cannot be used against the witnessunless the witness is confronted with the previous statement and given

6 AIR 1960 SC 4907 (1998) 4 SCC 605H8 (2002) 1 SCC 351

an opportunity to explain, as held by this Court in Murli and Anr. v.State of Rajasthan[9]cited by Mr. Jain. However, certain documents nototherwise admissible under the Evidence Act, unless proved by evidence,may be admissible under Section 52A(4) of the NDPS Act, subject tothe fulfilment of the conditions of that section.

87. Section 54 of the NDPS Act, the constitutional vires whereofhas been upheld in Noor Aga (supra) provides:

54. Presumption from possession of illicit articles.—In trialsunder this Act, it may be presumed, unless and until the contraryis proved, that the accused has committed an offence under thisAct in respect of—

(a) any narcotic drug or psychotropic substance or controlledsubstance;

(b) any opium poppy, cannabis plant or coca plant growing on anyland which he has cultivated;

(c) any apparatus specially designed or any group of utensilsspecially adopted for the manufacture of any narcotic drug orpsychotropic substance or controlled substance; or

(d) any materials which have undergone any process towards themanufacture of narcotic drug or psychotropic substance orcontrolled substance, or any residue left of the materials fromwhich any narcotic drug or psychotropic substance or controlledsubstance has been manufactured,

for the possession of which he fails to account satisfactorily.

88. Section 66 of the NDPS Act provides:-

“66. Presumption as to documents in certain cases.—Whereany document—

(i) is produced or furnished by any person or has been seizedfrom the custody or control of any person, in either case,under this Act or under any other law, or

(ii) has been received from any place outside India (dulyauthenticated by such authority or person and in such manneras may be prescribed by the Central Government) in the

9 (2009) 9 SCC 417

Acourse of investigation of any offence under this Act allegedto have been committed by person, and such document istendered in any prosecution under this Act in evidence againsthim, or against him and any other person who is tried jointlywith him, the court shall—

B(a) presume, unless the contrary is proved, that the signatureand every other part of such document which purports to bein the handwriting of any particular person or which the courtmay reason ably assume to have been signed by, or to be inthe handwriting of, any particular person, is in that person’shandwriting; and in the case of document executed orCattested, that it was executed or attested by the person bywhom it purports to have been so executed or attested;

(b) admit the document in evidence, notwithstanding that it isnot duly stamped, if such document is otherwise admissible inevidence;

(c) in case falling under clause (i), also presume, unless thecontrary is proved, the truth of the contents of such document.”

89. Section 67 of the NDPS Act provides that any officer referredto in Section 42, who is duly authorized in this behalf by the Central orEState Government, may during the course of any inquiry:

(i) call for information from any person for the purpose ofsatisfying himself whether there has been any contravention ofthe provisions of this Act or any rule or order made thereunder;

(ii) require any person to produce or deliver any document orFthing useful or relevant to the enquiry;

(iii) examine any person acquainted with the facts andcircumstances of the case.

90. Legislature has in its wisdom used the expression “investigationof the offence” in Section 53, and the term “inquiry” in Section 67.GEven though in common parlance “inquiry” and “investigation” are usedinterchangeably, “investigation” in Section 53 and “inquiry” in Section67 cannot be construed to mean the same.

91. It is well settled that, when different words are used in thesame statute, there is presumption that they are not used in the sameH

sense. Accordingly, in T.A. Krishnaswamy v. State of Madras[10], thisCourt held that the words “test” and “analysis” used in Rule 40 of theCentral Rules under the Drugs Act 1940 were to be given differentmeanings.

92. Of course, too much weight cannot be given to the presumptionarising out of use of different words in different parts of statute, whendealing with long complicated statute, for example consolidatingstatute, with incongruous provisions lumped together. Even otherwise,the context in which the words have been used is relevant, as lesscareful draftsman may use different words to convey the same meaning,in hurriedly enacted statute. This proposition finds support fromKanhaiyalal Vishindas Gidwani v. Arun Dattatreya Mehta[11]. Aconstruction deriving support from differing phraseology in differentsections of statute, may be negatived if it leads to unreasonable orirrational results.

93. In the NDPS Act, the Legislature appears to have consciouslyintended “inquiry” and “investigation” to convey different meaning.Accordingly Section 53A refers to statement before any officerempowered under Section 53 for the investigation of offences duringthe course of any inquiry or proceeding by such officer.

94. The NDPS Act does not define the expression “investigation”or the expression “inquiry”. However, Section 2(xxix) of the NDPS Actprovides:

“2(xxix). words and expressions used herein and not definedbut defined in the Code of Criminal Procedure, 1973 (2 of1974) have the meanings respectively assigned to them in thatCode.”

95. The definition of the terms ‘inquiry’ and ‘investigation’ ascontained in Sections 2(g) and 2(h) of the Cr.P.C. are as follows:

“2.(g) “inquiry” means every inquiry, other than trial,conducted under this Code by Magistrate or Court;

(h) “investigation” includes all the proceedings under thisCode for the collection of evidence conducted by policeofficer or by any person (other than Magistrate) who isauthorised by Magistrate in this behalf”

10 AIR 1966 SC 1022

11 (2001) 1 SCC 78

A96. The meaning of word or expression used in statute can beconstrued and understood as per its definition, unless the “contextotherwise requires”. The definition of inquiry in Section 2(g) of theCr.P.C. does not help to interpret the word inquiry in Section 67 of theNDPS Act or in any other provision of Chapter V thereof, since aninquiry under Chapter V of the NDPS Act is not by any Magistrate orBCourt.

97. It is well settled that word not specifically defined in statutemay be interpreted as per its ordinary meaning, which may be ascertainedby reference to dictionary. As per the Concise Oxford EnglishDictionary (Eleventh Edition) the word investigate means ‘carry out aCsystematic or formal enquiry into an incident or allegation as to establishthe 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 anofficial investigation. Words and phrases in statute have to be construedDin the context in which they have been used. The statute has to be readas whole.

98. The words “inquiry” and “investigation” have also been usedin statutes such as the Central Excise Act 1944, the Customs Act 1962,the Railway Property (Unlawful Possession) Act 1966, and the Cr.P.C.Ewhich also prescribe procedure for proceeding against offenders.These statutes may be taken into consideration to construe the meaningof the expression “inquiry” in Section 67 of the NDPS Act and thedifference, if any, between the expression “inquiry” as used in Section67 of the NDPS Act and the expression “investigation” as used in Section53 of the said Act. While Sections 155-157 of the Cr.P.C. speak ofFinvestigation of cognizable offences, Section 8 of the Railway Property(Unlawful Possession) Act, speaks of inquiry into the charge ofcommission of an offence under that Act, Section 14 of the CentralExcise Act contemplates inquiry for the purposes of the Central ExciseAct which could also include inquiry for the prosecution of an offenceGunder the said Act and Section 107 of the Customs Act speaks of inquiryin connection with smuggling.

99. It seems that the word ‘inquiry’ has been used in the RailwayProperty (Unlawful Possession) Act, Customs Act, Central Excise Actin the same sense as the word ‘investigation’ in the Cr.P.C. in respect ofHan offence. The choice of the expression ‘inquiry’ in preference to

investigation, in the statutes named above, except the Cr.P.C., mayperhaps be linked to the definition of ‘inquiry’ in the Cr.P.C. to mean aninquiry other than trial by Magistrate or Court, since inquiry underthose statutes enjoy the status of judicial proceedings, for the purposesof Sections 193 and 228 of the IPC. However, it is patently clear thatthe two expressions do not convey the same meaning in the NDPS Act.

100. Having regard to the meaning of the expressions investigate/investigation and enquire/enquiry given in the Dictionary referred toabove, the use of the expressions in the statutes referred to above andhaving regard to the language and tenor of Sections 53, 53A, and Section67 of the NDPS Act, the expression “inquiry” may reasonably beconstrued as generic expression, which could include the investigationof an offence. An inquiry as contemplated in Section 67 is the collectionof information generally, to find out if there has been any contraventionof the NDPS Act, whereas investigation is the probing of an offenceunder the NDPS Act and collection of materials to find out the truth ofthe case sought to be made out against an accused offender. Howeverinvestigation may follow an enquiry or be part of an enquiry. This isevident from reading of the NDPS Act as whole.

101. The difference between the terms “investigation” and“inquiry” is, however, not really material to the issue of whether an officerinvested under Section 53 with the powers of the Officer in Charge of aPolice Station for investigation of an offence under the NDPS Act, is apolice officer within the meaning of Section 25 of the Evidence Act orwhether statement made in an inquiry as contemplated in Section 67,can be used against an accused offender in the trial of an offence underthe NDPS Act.

102. An officer empowered under Section 53 with the powers ofan Officer in Charge of Police Station for the investigation of an offence,also has the power to make an inquiry. This is clear from the languageused in Section 53A(1) of the NDPS Act. The words “A statementmade and signed by person before any officer empowered underSection 53 for the investigation of offences, during the course ofany inquiry or proceedings by such officer” clinches the issue. Theofficer empowered under Section 53, with the power of an Officer inCharge of Police Station, can obviously make an inquiry within themeaning of Section 67 to find out whether there has been anycontravention of the NDPS Act. statement made before such an

Aofficer in course of any inquiry or other proceeding, which is taken downin writing and signed by the person making it, may in certaincircumstances, be relevant for the purpose of proving, in any prosecutionfor an offence under the NDPS Act, the truth of the facts it contains.

103. The power of an officer to investigate is not derived fromBSection 53, which as observed earlier in this judgment, is an enablingprovision, which empowers the Central/State Government to invest anofficer with the powers of an Officer in Charge of Police Station, forthe purpose of investigation of an offence under the NDPS Act. Thepower to invest an officer with the powers of an Officer in Charge of aPolice Station flows from Section 53. The authority to investigate intoCan offence is implicit in the wider power to make an inquiry in connectionwith the contravention of any provision of the NDPS Act.

104. An enquiry may be carried out by an officer referred to inSection 42 of the NDPS Act, if empowered in this behalf. This is clearfrom Section 67. The same officer can also investigate an offenceDunder the NDPS Act, if he is also invested under Section 53, with thepowers of an Officer in Charge of Police Station, for the purpose ofinvestigation of an offence under the NDPS Act.

105. The power of an authorized officer referred to in Section 42,to make an inquiry is not derived from Section 67. This is clear from theElanguage used in Section 67, which reads “any officer referred to inSection 42 who is authorised in this behalf by the CentralGovernment or State Government may, during the course of anyenquiry in connection with the contravention of any provisions ofthis Act call for information etc.” The power to make an enquiryFflows from the various provisions of Chapter V of the NDPS Act.

106. Section 67 empowers an authorized officer, referred to inSection 42, to do the following acts during the course of an enquiry:

“(a) call for information from any person for the purpose ofsatisfying himself whether there has been any contravention ofGthe provisions of this Act or any rule or order made thereunder;

(b) require any person to produce or deliver any document orthing useful or relevant to the enquiry;

(c) examine any person acquainted with the facts andcircumstances of the case.”H

107. Investigation of an offence under the NDPS Act, is part ofan inquiry under Chapter V of the said Act. Investigation of an offenceunder the NDPS Act can be carried out by the same officer empoweredunder Section 42, who triggered the proceedings under Chapter V of theNDPS Act and carried out search, seizure and/or arrest, if that officer isalso invested under Section 53 of the NDPS Act, with the powers of anOfficer in Charge of Police Station, for the purpose of investigation.

108. In Mukesh Singh v. State (Narcotic Branch of Delhi)[12] aConstitution Bench of this Court, unanimously held that an investigationis not vitiated only because the same officer, who was the complainantagainst the accused offender also investigated into the offence asInvestigating Officer. The investigation may also be carried out by adifferent officer, invested under Section 53 with the powers of an Officerin Charge of the Police Station for the purpose of investigation under theNDPS Act. Section 52(3) of the NDPS Act, thus, provides:-

“(3) Every person arrested and article seized under sub-section (2) of Section 41, Section 42, Section 43 or Section44 shall be forwarded without unnecessary delay to—

(a) the officer-in-charge of the nearest police station, or

(b) the officer empowered under Section 53.”

109. If the officer empowered under Section 53, is the same personas the officer empowered under Section 42, every arrested person andarticle seized under Sections 41(2), 42, 43 or 44 will have to be forwarded,without delay, to the Officer in Charge of the nearest Police Station. Ifthe officer referred to in Section 42, is not invested with powers underSection 53, persons arrested and the articles seized by him under Sections41(2), 42 etc. might be forwarded either to the Officer in Charge of thenearest Police Station or to the officer invested under Section 53 of theNDPS Act, with the powers of an Officer in Charge of Police Station,for the purpose of investigation of an offence.

110. The language and tenor of Section 67 or Sections 41/42 doesnot support the contention that an inquiry can only be made by an officerreferred to in Section 42, who is duly authorized, before exercise of thepowers of entry, search, seizure or arrest, or at the stage of entry, search,seizure and arrest, but not afterwards. The exercise of power under

ASections 41/42 of the NDPS Act does not necessarily have to be precededby an inquiry. If an inquiry were to be restricted to the stage prior to theexercise of the power of entry, search, seizure and arrest or to the stageof making an entry, search, seizure or arrest, the NDPS Act would havespecifically provided so. There is no such provision, either express orimplied. It is not permissible to read into Sections 41, 42 etc the wordsB“after an inquiry” which do not exist in those provisions. Nor is itpermissible to read the words “before or at the time of entry, search,seizure or arrest” after the words “during the course of any enquiry” inSection 67.

111. The power conferred by Section 67 on an officer referred toCin Section 42, duly authorised by the Central/State Government in thisbehalf, to call for information, require production of any document orthing or to examine any person, etc. is exercisable in course of anyinquiry. The power could be exercised at any stage of the enquiry, beforea complaint is filed. The powers can be exercised prior to or after exerciseDof powers under Sections 41/42 and would include the stage ofinvestigation of an offence by an officer referred to in Section 42, if heis also invested with powers under Section 50 of the NDPS Act.

112. An officer referred to in Section 42 of the NDPS Act, if notinvested with powers under Section 53 of the said Act, derives the powerEto call for information, require production of documents and things andto examine persons from Section 67 of the NDPS Act. The powers ofinvestigation of an Officer in Charge of Police Station include suchpowers. An officer invested with powers under Section 53 can alsomake an enquiry. This is clear from the use of the words “A statementmade and signed by person before any officer empowered underFSection 53 for the investigation of offences, during the course ofany inquiry or proceedings by such officer, shall be relevant...” inSection 53A(1). The benefit of Section 53A(1) would not be availablein the case of similar statement made before an officer empoweredunder Section 42, but not under Section 53 of the NDPS Act.G

113. If, after an inquiry or investigation, complaint is filed, andthe Special Court takes cognizance of the offence, any statements,documents or other things obtained in the inquiry/investigation may betendered and proved by the prosecution in the trial against the offenderunless the statement and/or document and/or thing has been obtained byHany 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 authorizedunder Section 42 or invested with powers under Section 53 arematters of trial. The Prosecution has to establish the chargesagainst the offender, in accordance with law, at the trial.

114. Chapter XII of the Cr.P.C governs information to the policeand the power of the police to investigate into offences. The relevantprovisions of the Chapter XII are set out hereinbelow:-

“154. Information in cognizable cases.—(1) Every informationrelating to the commission of cognizable offence, if givenorally to an officer in charge of police station, shall bereduced to writing by him or under his direction, and be readover to the informant; and every such information, whethergiven in writing or reduced to writing as aforesaid, shall besigned by the person giving it, and the substance thereof shallbe entered in book to be kept by such officer in such formas the State Government may prescribe in this behalf.

(3) Any person aggrieved by refusal on the part of an officerin charge of police station to record the information referredto in sub-section (1) may send the substance of suchinformation, in writing and by post, to the Superintendent ofPolice concerned who, if satisfied that such informationdiscloses the commission of cognizable offence, shall eitherinvestigate the case himself or direct an investigation to bemade by any police officer subordinate to him, in the mannerprovided by this Code, and such officer shall have all thepowers of an officer in charge of the police station in relationto that offence.

155. Information as to non-cognizable cases and investigationof such cases.—(1) When information is given to an officerin charge of police station of the commission within thelimits of such station of non-cognizable offence, he shallenter or cause to be entered the substance of the informationin book to be kept by such officer in such form as the StateGovernment may prescribe in this behalf, and refer theinformant to the Magistrate.

(2) No police officer shall investigate non-cognizable casewithout the order of Magistrate having power to try suchcase or commit the case for trial.

(3) Any police officer receiving such order may exercise thesame powers in respect of the investigation (except the powerto arrest without warrant) as an officer in charge of policestation may exercise in cognizable case.

(4) Where case relates to two or more offences of which atleast one is cognizable, the case shall be deemed to be acognizable case, notwithstanding that the other offences arenon-cognizable.

156. Police officer’s power to investigate cognizable case.—(1) Any officer in charge of police station may, without theorder of Magistrate, investigate any cognizable case whicha Court having jurisdiction over the local area within thelimits of such station would have power to inquire into or tryunder the provisions of Chapter XIII. (2) No proceeding of apolice officer in any such case shall at any stage be called inquestion on the ground that the case was one which suchofficer was not empowered under this section to investigate.(3) Any Magistrate empowered under section 190 may ordersuch an investigation as above-mentioned.

157. Procedure for investigation.—(1) If, from informationreceived or otherwise, an officer in charge of police stationhas reason to suspect the commission of an offence which heis empowered under section 156 to investigate, he shallforthwith send report of the same to Magistrate empoweredto take cognizance of such offence upon police report andshall proceed in person, or shall depute one of his subordinateofficers not being below such rank as the State Governmentmay, by general or special order, prescribe in this behalf, toproceed, to the spot, to investigate the facts and circumstancesof the case, and, if necessary, to take measures for thediscovery and arrest of the offender: Provided that—

(a) when information as to the commission of any such offenceis given against any person by name and the case is not of aserious nature, the officer in charge of police station need

not proceed in person or depute subordinate officer to makean investigation on the spot;

(b) if it appears to the officer in charge of police stationthat there is no sufficient ground for entering on aninvestigation, he shall not investigate the case.

158. Report how submitted.—(1) Every report sent to aMagistrate under section 157 shall, if the State Governmentso directs, be submitted through such superior officer ofpolice as the State Government, by general or special order,appoints in that behalf.

(2) Such superior officer may give such instructions to theofficer in charge of the police station as he thinks fit, andshall, after recording such instructions on such report,transmit the same without delay to the Magistrate.

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160. Police officer’s power to require attendance ofwitnesses.—(1) Any police officer making an investigationunder this Chapter may, by order in writing, require theattendance before himself of any person being within the limitsof his own or any adjoining station who, from the informationgiven or otherwise, appears to be acquainted with the factsand circumstances of the case; and such person shall attendas so required:

Provided that no male person under the age of fifteen yearsor above the age of sixty-five years or woman or mentallyor physically disabled person shall be required to attend atany place other than the place in which such male person orwoman resides.

(2) The State Government may, by rules made in this behalf,provide for the payment by the police officer of the reasonableexpenses of every person, attending under sub-section (1) atany place other than his residence.

161. Examination of witnesses by police.—(1) Any policeofficer making an investigation under this Chapter, or anypolice officer not below such rank as the State Governmentmay, by general or special order, prescribe in this behalf,

acting on the requisition of such officer, may examine orallyany person supposed to be acquainted with the facts andcircumstances of the case.

(2) Such person shall be bound to answer truly all questionsrelating to such case put to him by such officer, other thanquestions the answers to which would have tendency toexpose him to criminal charge or to penalty or forfeiture.

(3) The police officer may reduce into writing any statementmade to him in the course of an examination under this section;and if he does so, he shall make separate and true recordof the statement of each such person whose statement herecords.

Provided that statement made under this sub-section may alsobe recorded by audio-video electronic means.

162. Statement to police not to be signed- Use of statements inevidence.- (1) No statement made by any person to policeofficer in the course of an investigation under this Chapter,shall, if reduced to writing, be signed by the person makingit; nor shall any such statement or any record thereof, whetherin police diary or otherwise, or any part of such statementor record, be used for any purpose, save as hereinafterprovided, at any inquiry or trial in respect of any offenceunder investigation at the time when such statement was made:

Provided that when any witness is called for the prosecutionin such inquiry or trial whose statement has been reducedinto writing as aforesaid, any part of his statement, if dulyproved, may be used by the accused, and with the permissionof the Court, by the prosecution, to contradict such witnessin the manner provided by section 145 of the Indian EvidenceAct , 1872 (1 of 1872); and when any part of such statementis so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only ofexplaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to anystatement falling within the provisions of clause (1) of section32 of the Indian Evidence Act, 1872 (1 of 1872); or to affectthe provisions of section 27 of that Act.

Explanation.—An omission to state fact or circumstance inthe statement referred to in sub-section (1) may amount tocontradiction if the same appears to be significant andotherwise relevant having regard to the context in which suchomission occurs and whether any omission amounts to acontradiction in the particular context shall be question offact.

163. No inducement to be offered.—(1) No police officer orother person in authority shall offer or make, or cause to beoffered or made, any such inducement, threat or promise asis mentioned in section 24 of the Indian Evidence Act, 1872(1 of 1872).

(2) But no police officer or other person shall prevent, byany caution or otherwise, any person from making in thecourse of any investigation under this Chapter any statementwhich he may be disposed to make of his own free will:Provided that nothing in this sub-section shall affect theprovisions of sub-section (4) of section 164.

164. Recording of confessions and statements.—(1) AnyMetropolitan Magistrate or Judicial Magistrate may, whetheror not he has jurisdiction in the case, record any confessionor statement made to him in the course of an investigationunder this Chapter or under any other law for the time beingin force, or at any time afterwards before the commencementof the inquiry or trial:

Provided that any confession or statement made under thissub-section may also be recorded by audio-video electronicmeans in the presence of the advocate of the person accusedof an offence:

Provided further that no confession shall be recorded by apolice officer on whom any power of Magistrate has beenconferred under any law for the time being in force.

(2) The Magistrate shall, before recording any suchconfession, explain to the person making it that he is not boundto make confession and that, if he does so, it may be usedas evidence against him; and the Magistrate shall not recordany such confession unless, upon questioning the person

making it, he has reason to believe that it is being madevoluntarily.

(3) If at any time before the confession is recorded, the personappearing before the Magistrate states that he is not willingto make the confession, the Magistrate shall not authorisethe detention of such person in police custody.

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165. Search by police officer.—(1) Whenever an officer incharge of police station or police officer making aninvestigation has reasonable grounds for believing thatanything necessary for the purposes of an investigation intoany offence which he is authorised to investigate may be foundin any place within the limits of the police station of which heis in charge, or to which he is attached, and that such thingcannot in his opinion be otherwise obtained without unduedelay, such officer may, after recording in writing the groundsof his belief and specifying in such writing, so far as possible,the thing for which search is to be made, search, or causesearch to be made, for such thing in any place within thelimits of such station.

(2) police officer proceeding under sub-section (1), shall,if practicable, conduct the search in person.

(3) If he is unable to conduct the search in person, and thereis no other person competent to make the search present atthe time, he may, after recording in writing his reasons for sodoing, require any officer subordinate to him to make thesearch, and he shall deliver to such subordinate officer anorder in writing, specifying the place to be searched, and sofar as possible, the thing for which search is to be made; andsuch subordinate officer may thereupon search for such thingin such place.

(4) The provisions of this Code as to search-warrants and thegeneral provisions as to searches contained in section 100shall, so far as may be, apply to search made under thissection.

(5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate

empowered to take cognizance of the offence, and the owneror occupier of the place searched shall, on application, befurnished, free of cost, with copy of the same by theMagistrate.

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—168. Report of investigation by subordinate police officer.When any subordinate police officer has made anyinvestigation under this Chapter, he shall report the result ofsuch investigation to the officer in charge of the police station.

169. Release of accused when evidence deficient.—If, uponan investigation under this Chapter, it appears to the officerin charge of the police station that there is not sufficientevidence or reasonable ground of suspicion to justify theforwarding of the accused to Magistrate, such officer shall,if such person is in custody, release him on his executing abond, with or without sureties, as such officer may direct, toappear, if and when so required, before Magistrateempowered to take cognizance of the offence on policereport, and to try the accused or commit him for trial.

170. Cases to be sent to Magistrate, when evidence issufficient.—(1) If, upon an investigation under this Chapter,it appears to the officer in charge of the police station thatthere is sufficient evidence or reasonable ground as aforesaid,such officer shall forward the accused under custody to aMagistrate empowered to take cognizance of the offence upona police report and to try the accused or commit him for trial,or, if the offence is bailable and the accused is able to givesecurity, shall take security from him for his appearancebefore such Magistrate on day fixed and for his attendancefrom day to day before such Magistrate until otherwisedirected.

172. Diary of proceedings in investigation.—(1) Every policeofficer making an investigation under this Chapter shall dayby day enter his proceedings in the investigation in diary,setting forth the time at which the information reached him,the time at which he began and closed his investigation, theplace or places visited by him, and statement of thecircumstances ascertained through his investigation.

(1A) The statements of witnesses recorded during the courseof investigation under section 161 shall be inserted in thecase diary.

(1B) The diary referred to in sub-section (1) shall be volumeand duly paginated.

(2) Any Criminal Court may send for the police diaries of acase under inquiry or trial in such Court, and may use suchdiaries, not as evidence in the case, but to aid it in such inquiryor trial.

(3) Neither the accused nor his agents shall be entitled to callCfor such diaries, nor shall he or they be entitled to see themmerely because they are referred to by the Court; but, if theyare used by the police officer who made them to refresh hismemory, or if the Court uses them for the purpose ofcontradicting such police officer, the provisions of sectionD161 or section 145, as the case may be, of the Indian EvidenceAct, 1872 (1 of 1872), shall apply.

173. Report of police officer on completion of investigation.—(1) Every investigation under this Chapter shall be completedwithout unnecessary delay.

E(1A) The investigation in relation to rape of child may becompleted within three months from the date on which theinformation was recorded by the officer in charge of the policestation.

(2) (i) As soon as it is completed, the officer in charge of theFpolice station shall forward to Magistrate empowered totake cognizance of the offence on police report, report inthe form prescribed by the State Government, stating—

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquaintedwith the circumstances of the case;

(d) whether any offence appears to have been committed and,if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so,whether with or without sureties;

(g) whether he has been forwarded in custody under section170.

(h) whether the report of medical examination of the womanhas been attached where investigation relates to an offenceunder section 376, 376A, 376B, 376C 2 [376D or section376E of the Indian Penal Code (45 of 1860)].

(ii) The officer shall also communicate, in such manner asmay be prescribed by the State Government, the action takenby him, to the person, if any, by whom the information relatingto the commission of the offence was first given.

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(5) When such report is in respect of case to which section170 applies, the police officer shall forward to the Magistratealong with the report—

(a) all documents or relevant extracts thereof on which theprosecution proposes to rely other than those already sent tothe Magistrate during investigation;

(b) the statements recorded under section 161 of all the personswhom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of anysuch statement is not relevant to the subject-matter of theproceedings or that its disclosure to the accused is notessential in the interests of justice and is inexpedient in thepublic interest, he shall indicate that part of the statementand append note requesting the Magistrate to exclude thatpart from the copies to be granted to the accused and statinghis reasons for making such request.

(7) Where the police officer investigating the case finds itconvenient so to do, he may furnish to the accused copies ofall or any of the documents referred to in sub-section (5).

(8) Nothing in this section shall be deemed to preclude furtherinvestigation in respect of an offence after report under

Asub-section (2) has been forwarded to the Magistrate and,where upon such investigation, the officer in charge of thepolice station obtains further evidence, oral or documentary,he shall forward to the Magistrate further report or reportsregarding such evidence in the form prescribed; and theprovisions of sub-sections (2) to (6) shall, as far as may be,Bapply in relation to such report or reports as they apply inrelation to report forwarded under sub-section (2).”

115. Reference may also be made to Section 190 of the Cr.P.Cset out hereinbelow:-

“190. Cognizance of offences by Magistrates.—(1) Subjectto the provisions of this Chapter, any Magistrate of the firstclass, and any Magistrate of the second class speciallyempowered in this behalf under sub-section (2), may takecognizance of any offence—

D(a) upon receiving complaint of facts which constitute suchoffence;

(b) upon police report of such facts;

(c) upon information received from any person other than apolice officer, or upon his own knowledge, that such offenceEhas been committed.

(2) The Chief Judicial Magistrate may empower anyMagistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence toinquire into or try.”F

116. Chapter XII of the Cr.P.C comprising Sections 154 to 176relating to information to the police and their powers to investigate haveno application to any inquiry or investigation under the NDPS Act, exceptto the extent expressly provided in the NDPS Act. Sections 161 and 162of the Cr.P.C. are not attracted in the case of any inquiry or investigationGby the officer designated under the NDPS Act.

117. The provisions of the Cr.P.C. only apply to all warrants issuedand searches and seizures made under the NDPS Act, in so far as theyare not inconsistent with the provisions of the NDPS Act, as provided inSection 51 of the NDPS Act and to the search of person, withoutHcomplying with the requirement to take the person to be searched, to the

nearest Gazetted Officer or Magistrate, as provided in Section 50(5) ofthe NDPS Act. Of course, the principles of Section 163 of theCr.P.C. are implicit in the provisions of the NDPS Act relating toinquiry and investigation though the said Section may not applyto such inquiry or investigation. This is because the bar of Article20(3) of the Constitution of India has to be read into every statutein spirit and substance. There can be no question of obtainingany statement by any inducement, promise or threat.

118. The NDPS Act as observed above, is complete code. Acomparison of the various provisions of Chapter XII of the Cr.P.C withthose of Chapter V of the NDPS Act also makes it clear that the provisionsin Chapter V of the NDPS Act are independent of, and not controlled bythe provisions of the Cr.P.C except as provided in Sections 50(5) and 51of the NDPS Act. There are differences between the procedure ofinquiry/investigation under Chapter V of the NDPS Act and the procedureof investigation and/or enquiry under the Cr.P.C.

119. Some of the notable differences in the procedure of inquiry/investigation under Chapter V of the NDPS Act with the procedure ofinquiry/investigation under the Cr.P.C are as follows:

(i) Under Section 68 of the NDPS Act, the name of the informantis not to be disclosed. The officer who takes down the informationbecomes the complainant. However, under Section 154 of theCr.P.C information is required to be signed by the person giving it.(Section 154(1) Cr.P.C)

(ii) The power under Section 41(2) of the NDPS Act, to authorizearrest or search under the said Section as also the power of entry,search seizure and arrest under Section 42 and other similarprovisions is conditional upon reason to believe from personalknowledge or information given by any person and taken in writingthat any person has committed an offence punishable under thisAct, or that any narcotic drug or psychotropic substance orcontrolled substance in respect of which any offence under thisAct has been committed, or any document or other article whichmay furnish evidence of the commission of such offence or anyillegally acquired property or any document or other article whichmay furnish evidence of holding any illegally acquired propertywhich is liable for seizure or freezing or forfeiture under Chapter

VA of the NDPS Act, is kept or concealed in any building,conveyance or place. On the other hand, the powers of the policeunder Section 165 of the Cr.P.C to make search or authorize asearch are much wider.

(iii) In the case of an inquiry/investigation under the Cr.P.C it isnot necessary to send copy of the information as recorded, withthe grounds of belief of the necessity to take action, to superiorofficer.

(iv) The power to conduct personal search under the NDPS Actis circumscribed by Section 50. If the person to be searched, sorequires, he has to be taken to the nearest Magistrate. As observedabove, Section 50(5) specifically requires searches of person tobe made under Section 100 of the Cr.P.C. only in the circumstancesspecified in the said provisions.

(v) Section 53A of the NDPS Act, which expressly provides thatDa statement made and signed by person before any officerempowered 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 prosecutionunder the NDPS Act, the truth of the facts which it contains, inthe circumstances stated in the said Section, is patently contraryEto and/or inconsistent with Sections 161/162 of the Cr.P.C. UnderSection 162, statement made to police officer, if taken down inwriting, is not to be signed by the person making it, and not usedfor any purpose in any inquiry or trial in Court, except to confronthim if he appears as witness and gives evidence to the contrary.FSection 53 (2) makes it abundantly clear that the provision ofsub-section (1) of Section 53A, to the extent feasible, appliesto all proceedings under the NDPS Act or the Rules ororders thereunder, other than proceedings before Court,as they apply in relation to proceeding in Court.

(vi) Section 173(1) read with Section 173(2) of the Cr.P.C makesit obligatory for police officer to complete an investigation andfile report to the Magistrate empowered to take cognizance.Under the NDPS Act no report is required to be submitted to theSpecial Court, or to any Magistrate, after completion of an inquiryand/or investigation of an offence under the said Act. Officers

under the NDPS Act do not have the power to submit report tothe Magistrate/Special Court in terms of Section 173 of Cr.P.C.

120. Section 36A(1)(d) of the NDPS Act provides that “a SpecialCourt may, upon perusal of police report of the facts constituting anoffence under the NDPS Act or upon complaint made by an officer ofthe Central Government or State Government authorised in his behalf,take cognizance of that offence, without the accused being committedto it for trial”. Section 36A (1)(d) is similar to Section 190 of the Cr.P.C.

121. complaint, as defined in Section 2(d) of the Cr.P.C., meansany allegation made to Magistrate orally or in writing, to enable theMagistrate to take action under the Cr.P.C. complaint need not be ona Police Report. However, as per the Explanation to Section 2(d), areport of police officer, which discloses cognizable offence is to bedeemed to be complaint and the police officer who made the complaint,shall be deemed to be the complainant.

122. An inquiry and/or investigation is conducted under the NDPSAct to enable the concerned officer/officers to satisfy themselves,whether the information gathered or the materials obtained in course ofsuch inquiry/investigation warrant the filing of complaint.

123. If upon inquiry/investigation, the authorities concerned findthat there are materials in the form of any statements, documents, orother things which show prima facie that an offence has been committedunder the NDPS Act, complaint may be made. If the informationgathered and/or materials obtained do not make out an offence complaintmay not be made. Similarly complaint may not be made, if upon inquiry/investigation, the information of an offence received by the appropriateofficer is found false or frivolous.124. Section 36A(1)(d) enables the police to file report, beforethe 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 report forwarded under Section 173(2) of the Cr.P.C. Such apolice report is deemed to be complaint. Such police report can befiled after an investigation under Chapter XII of the Cr.P.C. There is noprovision in the NDPS Act, which makes it incumbent upon the concernedofficers who make any inquiry/investigation under the NDPS Act, toprepare or file any report.

A125. If the police investigate any offence under the NDPS Actand submit report before the Special Court, all the relevant provisionsof the Cr.P.C. would have to be complied with, including in particularSections 161, 162, 163, 164 and 173. statement before the police canneither be signed nor relied upon for any purpose in Court of law,except for the purpose specified in the said section, that is, inter alia toBconfront the person making the statement in cross examination in thetrial.

126. The Legislature has in its wisdom differentiated between apolice report, which is deemed to be complaint, and complaint madeby an officer of the Central or State Government, authorized in thisCbehalf. 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 complaint made by an officer of the Central or State Government,authorized in this behalf, and not report, as required in case of thepolice, also shows that an inquiry or investigation under the NDPS Act isDnot to be treated in the same way, as police investigation into an offence.

127. The argument advanced by the appellants represented byMr. Nagamuthu, that officers invested under Section 53 of the NDPSAct with the powers of an officer in charge of Police Station forinvestigation of an offence under the NDPS Act would necessarily haveEto file police report under Section 173 of the Cr.P.C. before Magistrate,in respect of an offence punishable with imprisonment of less than threeyears, which is not triable by the Special Court, but by Magistrate,since Section 36A(1)(d) would not apply, is flawed. In case of an offencepunishable with imprisonment of less than three years, triable by aMagistrate, the authorized officer under the NDPS Act would have toFfile complaint under Section 190(1)(a) of the Cr.P.C.

128. The expression “police” is ordinarily understood to meanthat executive civil force of the State, entrusted with the duty ofmaintenance of public order, and also the prevention and detection ofcrime.G

129. The expression “police” or “police officer” is not definedeither in the Evidence Act 1872 or in the Cr.P.C. Police officers aregoverned inter alia by the Police Act 1861, enacted to make the policean effective instrument for the prevention and detection of crime.

130. Some of the relevant provisions of the Police Act 1861 areHset out hereinbelow:

5. Powers of Inspector-General—Exercise of powers.—TheInspector General of Police shall have the full powers of aMagistrate throughout the general police district; but shallexercise those powers subject to such limitation as may fromtime to time be imposed by the [State Government].

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8. Certificates to police-officers.—Every police-officerappointed to the police force other than an officer mentionedin section 4 shall receive on his appointment certificate inthe form annexed to this Act under the seal of the Inspector-General or such other officer as the Inspector-General shallappoint by virtue of which the person holding such certificateshall be vested with the powers, functions and privileges of apolice officer.

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20. Authority to be exercised by police officers.—Police-officers, enrolled under this Act shall not exercise anyauthority, except the authority provided for police officerunder this Act and any Act which shall hereafter be passedfor regulating criminal procedure.

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23. Duties of police officers.- It shall be the duty of everypolice-officer promptly to obey and execute all filers andwarrants lawfully issued to him by any competent authority;to collect and communicate intelligence affecting the publicpeace; to prevent the commission of offences and publicnuisances, to detect and bring offenders to justice and toapprehend all persons whom he is legally authorised toapprehend and for whose apprehension sufficient groundexists; and it shall be lawful for every police officer, for anyof the purposes mentioned in this section, without warrant,to enter and inspect any drinking-shop gaming-house or otherplace of resort of loose and disorderly characters.

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24. Police-officers may lay Information, etc.—It shall belawful for any police officer to lay any information before

Magistrate, and to apply for summons, warrant, searchwarrant or such other legal process as may by law issueagainst any person committing an offence.”

131. The Police Act, 1888, an Act to amend the law relating to theregulation of Police, inter alia, provide:-

“3. Employment of police-officers beyond the State to whichthey belong.- Notwithstanding anything in any of the Actsmentioned or referred to in the last foregoing section, butsubject to any orders which the [Central Government] maymake in this behalf, member of the [police force] of anyC[State] may discharge the functions of police-officer in anypart of [any other State] and shall, while so discharging suchfunctions be deemed to be member of the [police-force] ofthat part and be vested with the powers, functions andprivileges and be subject to be liabilities, of police officerbelonging to [that police-force].

4. Consent of State Government to exercise powers andjurisdiction.— Nothing in this Act shall be deemed to enablethe police of one State to exercise powers and jurisdiction inany area within another State, not being railway area,without the consent of the Government of that other State.”

132. The Police Act 1949, enacted for the constitution of generalpolice-district embracing two or more Union Territories, and for theestablishment of police force therefor, extends the application of thePolice Act, 1861 to police officers in Union Territories.

F133. There are several other statutes such as the Delhi SpecialPolice Establishment Act 1947, enacted to investigate into offences and/or class of offences notified under the said Act, the Central ReservePolice Act, 1949, the Bombay Police Act 1951, the Calcutta Police Act1866, the Bengal Police Act, 1869, the Madras City Police Act 1888, theAssam Rifles Act, the Nagaland Armed Police Act, 1966, to name aGfew.

134. The powers of an Officer in Charge of Police Station arenot exhaustively specified in the Cr.P.C. in any specific chapter or anyset of provisions grouped together. The duties and powers of an Officerin Charge of Police Station are implicit in interspersed provisions ofHthe Cr.P.C., many of which relate to the duties and powers of all police

officers in general. It is however, axiomatic, that the Officer in Chargeof Police Station is, as police officer, entitled to exercise all thepowers of police officer, whether under any of the Police Acts, theCr.P.C or any other law, apart from the additional powers for dischargeof duties and responsibilities as Officer in Charge of Police Station.

135. Under Section 37 of the Cr.P.C. every person is bound toassist police officer reasonably demanding his aid (i) in taking orpreventing the escape of any other person, the police is authorized toarrest (ii) to prevent the breach of peace or (iii) in the prevention of anyinjury attempted to be committed to any railway, public property etc.

136. Section 41 of the Cr.P.C. confers on police officers, widepowers of arrest without an order of Magistrate or warrant. The powerextends to the arrest of any person, if amongst other reasons, the policeofficer has reason to believe on the basis of any complaint, information,or suspicion that such person has committed cognizable offencepunishable with imprisonment which may be less than or may extendupto seven years. Such powers can be exercised:

(i) if the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any furtheroffence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence ofthe offence to disappear or tampering with such evidencein any manner; or

(d) to prevent such person from making any inducement,threat or promise to any person acquainted with the factsof the case so as to dissuade him from disclosing such factsto the Court or to the police officer; or

(e) unless such person is arrested, his presence in the Courtwhenever required cannot be ensured,

(ii) against whom credible information has been received thathe has committed cognizable offence punishable withimprisonment for term which may extend to more than sevenyears whether with or without fine or with death sentenceand the police officer has reason to believe on the basis of

Athat information that such person has committed the saidoffence;

(iii) in whose possession anything is found which mayreasonably be suspected to be stolen property and who mayreasonably be suspected of having committed an offence withBreference to such thing; or

(iv) who obstructs police officer while in the execution ofhis duty, or who has escaped, or attempts to escape, fromlawful custody.

137. The Police officers have further powers and duties as specifiedCin Sections 47, 48, 51, 52, 91, 129 and 133 of the Cr.P.C., which includethe power of search of any place entered by person sought to bearrested (Section 47), the power to compel production of documents orother things (Section 91), dispersal of any assembly likely to causedisturbance of public peace including arrest and action for punishmentDof those who form part of it (Section 129). Under Section 133 of theCr.P.C. an order of Magistrate for removal of obstruction or nuisancecould be based on police report. This could even include an order tostop any construction, to remove construction, to desist from carrying onany trade or business etc.E138. Chapter XI of the Cr.P.C. empowers the police to take actionto prevent the commission of cognizable offence. Section 151 of theCr.P.C. confers on police officers the power of arrest without warrantor orders of Magistrate, to prevent the commission of cognizableoffence. These powers are capable of being misused.F139. The police officers have enormous powers. The powers ofa police officer are far greater than those of an officer under the NDPSAct invested with the powers of an Officer in Charge of Police Stationfor the limited purpose of investigation of an offence under the NDPSAct. The extensive powers of the police, of investigation of all kinds ofoffences, powers to maintain law and order, remove obstruction andGeven arrest without warrant on mere suspicion, give room to policeofficers to harass person accused or even suspected of committing anoffence in myriad of ways. The police are, therefore, in dominatingposition to be able to elicit statements by intimidation, by coercion, or bythreats either direct or veiled. The powers of NDPS officers beingrestricted to prevention and detection of crimes under the NDPS ActH

and no other crime, they do not have the kind of scope that the policehave, to exert pressure to extract tailored statements.

140. To summarize, the provisions of the Cr.P.C do not apply toany inquiry or investigation or other proceeding under the NDPS Act,except to the extent expressly provided by the NDPS Act, in view ofSection 4(2) read with Section 5 of the Cr.P.C.

141. Officers under the NDPS Act have the power to call forinformation, to require production of documents and other things, toexamine persons and record their statements by virtue of the powersconferred by Sections 53 and 67 read with Section 53A of the NDPSAct.

142. As Officers empowered under Section 53 have all thepowers of an Officer in Charge of Police Station to conduct investigationof an offence under the NDPS Act, which includes the powers of callingfor information, examining persons or requiring production of documentsand other things, such powers have expressly been conferred by Section67 to authorised officers referred to in Section 42, who may or may notbe invested with powers under Section 53.

143. Officers under the NDPS Act, invested under Section 53with the powers of an Officer in Charge of Police Station, for thepurpose of investigation of an offence under the NDPS Act, do notexercise all the powers of police officers. They do not have the powerto file police report under Section 173 Cr.P.C which might be deemeda complaint. There is no provision in the NDPS Act which requires anyofficer investigating an offence under the said Act or otherwise makingan inquiry under the said Act to file report.

144. Officers under the NDPS Act not being police officers,Sections 161/162 of the Cr.P.C have no application to any statementmade before any officer under the NDPS Act, in the course of anyinquiry or other proceedings under the NDPS Act.

145. In any case, Section 53A is clearly contrary to and thusoverrides 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 police officer, whenreduced to writing shall be signed by the person making it, or used forany 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 awitness, Section 53A(1) provides that “a statement made and signed

Aby person before any officer empowered under Section 53 for theinvestigation of offences, during the course of any inquiry orproceedings by such officer, shall be relevant for the purpose ofproving, in any prosecution for an offence under this Act” in certaincircumstances specified in the said section.B146. The statements made in any inquiry or investigation may berecorded in writing and even signed by the person making it. In theabsence of any provision similar to Section 162, in the NDPS Act, astatement made before an officer under the NDPS Act in the course ofany inquiry, investigation or other proceedings, may be tendered inevidence and proved in trial for prosecution of an offence under theCNDPS Act in accordance with law. statement confessional in natureis in the genre of extra judicial confessions.

147. Section 24 of the Indian Evidence Act, 1872 provides asfollows:-

D“24. Confession caused by inducement, threat or promise,when irrelevant in criminal proceeding.–– confession madeby an accused person is irrelevant in criminal proceeding,if the making of the confession appears to the Court to havebeen caused by any inducement, threat or promise havingreference to the charge against the accused person,Eproceeding from person in authority and sufficient, in theopinion of the Court, to give the accused person groundswhich would appear to him reasonable for supposing that bymaking it he would gain any advantage or avoid any evil ofa temporal nature in reference to the proceedings againsthim.”F

148. confession made by an accused person is irrelevant in acriminal proceeding, if it appears to the Court that the confessions mayhave been elicited by any inducement, threat or promise from personin authority and sufficient, in the opinion of the Court, to give the accusedGperson reasonable grounds, for supposing that by making the confession,he would gain any advantage or avoid any disadvantage in respect ofproceedings against him.

149. As observed by this Court in the State of Rajasthan v. RajaRam[13]"confessions may be divided into two classes i.e. judicial andH13 (2003) 8 SCC 180

extra-judicial. Judicial confessions are those which are made beforea Magistrate or Court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewherethan before Magistrate or Court. Extra-judicial confessions aregenerally those that are made by party to or before privateindividual which includes even judicial officer in his privatecapacity. It also includes Magistrate who is not especiallyempowered to record confessions under Section 164 of the Code ora Magistrate so empowered but receiving the confession at stagewhen Section 164 does not apply. As to extra-judicial confessions,two questions arise: (i) were they made voluntarily and (ii) are theytrue?”.

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“An extra-judicial confession, if voluntary and true and madein fit state of mind, can be relied upon by the Court. The confessionwill have to be proved like any other fact. The value of the evidenceas to confession, like any other evidence, depends upon the veracityof the witness to whom it has been made. The value of the evidenceas to the confession depends on the reliability of the witness whogives the evidence. It is not open to any court to start with apresumption that extra-judicial confession is weak type ofevidence. It would depend on the nature of the circumstances, thetime when the confession was made and the credibility of the witnesseswho speak to such confession.”

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“If the evidence relating to extra-judicial confession is foundcredible after being tested on the touchstone of credibility andacceptability, it can solely form the basis of conviction. Therequirement of corroboration as rightly submitted by the learnedcounsel for the respondent-accused, is matter of prudence andnot an invariable rule of law.”

150. In Gura Singh v. State of Rajasthan[14]this Court held:-

“6. It is settled position of law that extrajudicial confession,if true and voluntary, it can be relied upon by the court toconvict the accused for the commission of the crime alleged.

Despite inherent weakness of extrajudicial confession as anitem of evidence, it cannot be ignored when shown that suchconfession was made before person who has no reason tostate falsely and to whom it is made in the circumstances whichtend to support the statement. Relying upon an earlierjudgment in Rao Shiv Bahadur Singh v. State of VindhyaPradesh [AIR 1954 SC 322 : 1954 SCR 1098 : 1954 Cri LJ910] this Court again in Maghar Singh v. State of Punjab[(1975) 4 SCC 234 : 1975 SCC (Cri) 479 : AIR 1975 SC1320] held that the evidence in the form of extrajudicialconfession made by the accused to witnesses cannot be alwaystermed to be tainted evidence. Corroboration of suchevidence is required only by way of abundant caution. If thecourt believes the witness before whom the confession is madeand is satisfied that the confession was true and voluntarilymade, then the conviction can be founded on such evidencealone. In Narayan Singh v. State of M.P. [(1985) 4 SCC 26 :1985 SCC (Cri) 460 : AIR 1985 SC 1678] this Court cautionedthat it is not open to the court trying the criminal case to startwith presumption that extrajudicial confession is always aweak type of evidence. It would depend on the nature of thecircumstances, the time when the confession is made and thecredibility of the witnesses who speak for such confession.The retraction of extrajudicial confession which is usualphenomenon in criminal cases would by itself not weaken thecase of the prosecution based upon such confession. InKishore Chand v. State of H.P. [(1991) 1 SCC 286 : 1991SCC (Cri) 172 : AIR 1990 SC 2140] this Court held that anunambiguous extrajudicial confession possesses highprobative value force as it emanates from the person whocommitted the crime and is admissible in evidence provided itis free from suspicion and suggestion of any falsity. However,before relying on the alleged confession, the court has to besatisfied that it is voluntary and is not the result of inducement,threat or promise envisaged under Section 24 of the EvidenceAct or was brought about in suspicious circumstances tocircumvent Sections 25 and 26. The court is required to lookinto the surrounding circumstances to find out as to whethersuch confession is not inspired by any improper or collateral

consideration or circumvention of law suggesting that it maynot be true. All relevant circumstances such as the person towhom the confession is made, the time and place of makingit, the circumstances in which it was made have to bescrutinised. To the same effect is the judgment in Baldev Rajv. State of Haryana [1991 Supp (1) SCC 14 : 1991 SCC (Cri)659 : AIR 1991 SC 37] . After referring to the judgment inPiara Singh v. State of Punjab [(1977) 4 SCC 452 : 1977SCC (Cri) 614 : AIR 1977 SC 2274] this Court in MadanGopal Kakkad v. Naval Dubey [(1992) 3 SCC 204 : 1992SCC (Cri) 598 : JT (1992) 3 SC 270] held that the extrajudicialconfession which is not obtained by coercion, promise offavour or false hope and is plenary in character and voluntaryin nature can be made the basis for conviction even withoutcorroboration.”151. It is one thing to say that piece of evidence is inadmissibleand another thing to assess two or more pieces of evidence on theirprobative value. confession before Judicial Magistrate under Section164 of the Cr.PC may have higher probative value than other confessions.However, on that parameter alone other confessions for example, extrajudicial confession cannot be rendered inadmissible in law.

152. It is true that some statutes such as Terrorist and DisruptiveActivities (Prevention) Act, 1987 (TADA), Prevention of Terrorism Act,2002 (POTA) and Maharashtra Control of Organised Crime Act, 1999(MCOCA) expressly empower the authorized officers to recordconfession. Investigation under those statutes is however carried out bypolice officer, as pointed out by the learned Addl. Solicitor General Mr.Aman Lekhi.

153. Whether the officer concerned is duly empowered and/or authorised to make an enquiry/investigation, whether anystatement or document has improperly been procured, etc. arefactors which would have to be examined by the Court on caseto case basis. Needless to mention that , having regard to allrelevant facts and circumstances, the Court may not baseconviction solely on statement made in an inquiry which isconfessional, in the absence of other materials with which thestatement can be linked. It is for the Special Court to weigh thestatement and assess its evidentiary value, having regard to all

Arelevant factors. All statements and documents tendered inevidence have to be proved at the trial in accordance with law.

154. Section 25 of the Evidence Act reads “No confession madeto police officer shall be proved against person accused of anyoffence”, and Section 26 reads “No confession made by any personBwhilst he is in the custody of police officer, unless it be made in theimmediate presence of Magistrate, shall be proved as against suchperson”. Thus, confession made by any person to police officer, orwhile in police custody, unless made in the immediate presence of aMagistrate cannot be tendered in evidence, against person accused ofan offence.C

155. For long time, there had been differences of opinion injudicial verdicts, in construing the expression ‘police officer‘ in Section25 of the Evidence Act. While the expression ‘police officer’ has insome judgments been construed to include officers, whether or not policeofficers, but vested with the powers of police officer, in respect ofDoffences under specific enactments, other judgments have construedthe expression to mean police officer as ordinarily understood, and notofficers of other departments, with authority to exercise the powers of apolice officer for investigation of offences under special enactments.

156. In Amin Sharif v. Emperor[15], full Bench of Calcutta HighECourt held that an officer other than police officer, who in the conductof investigation of an offence exercise the powers conferred by theCr.P.C., upon an Officer in Charge of police station for investigation ofa cognizable offence, is police officer within the meaning of Section 25of the Evidence Act. Similar view was taken by the Full Bench ofFBombay High Court in Nanoo Sheikh Ahmed and Another v.Emperor[16]

157. On the other hand in Radha Kishun Marwari v. King-Emperor[17]a Special Bench of Patna High Court took contrary viewand held that Section 25 of the Evidence Act applies to police officerGalone and not any other person invested with powers of police officerfor limited purpose. Confession to an Excise Inspector with power tosearch and investigate was held to be inadmissible in evidence.

15 AIR 1934 Cal 58016 AIR 1927 Bom 4H17 AIR 1932 Patna 293

158. In the State of Punjab v. Barkat Ram[18], the majority of thejudges on the Bench held (Subba Rao, J., dissenting) that CustomsOfficer under the Land Customs Act 19 of 1924 or under the SeaCustoms Act 8 of 1878 is not police-officer for the purpose of Section25 of the Indian Evidence Act, 1872, and that conviction of the offenderon the basis of his statements to the Customs Officer for offences underSection 167(8) of Sea Customs Act, 1878, and Section 23(1) of theForeign Exchange Regulation Act, 1947, is not illegal. Raghubar Dayal,J., who delivered the majority judgment of this Court observed:

“... that the powers which the police officers enjoy are powersfor the effective prevention and detection of crime in order tomaintain law and order.

The powers of customs officers are really not for suchpurpose. Their powers are for the purpose of checking thesmuggling of goods and the due realisation of customs dutiesand to determine the action to be taken in the interests of therevenues of the country by way of confiscation of goods onwhich no duty had been paid and by imposing penalties andfines”.

159. In Barkat Ram(supra), Dayal, J. speaking for the majorityobserved.

18.We now refer to certain aspects which lead us to considerthat the expression “police officer” has not such widemeaning as to include persons on whom certain police powersare conferred.The object of enacting Section 25 of theEvidence Act, whose provisions formerly formed part of theCode of Criminal Procedure, was to exclude from evidenceconfessions made to the regular policewhich had very badreputation for the methods it employed in investigation,especially in forcibly extracting confessions with the objectof securing conviction. The past conduct of the members ofthe police organization justified the provision. It is too muchto suppose that the legislature did intend that all persons,who may have to investigate or arrest persons or seize articlesin pursuance of any particular law of which at the time it hadno conception, should be considered to be so unreliable that

Aany confession made to them must be excluded just as aconfession made to regular police officer. If it could notcontemplate the later creation of offences or of agencies totake action in respect to them under future legislation, it couldnot have intended the expression “police officer” to includeofficers entrusted in future with the duty of detecting andBpreventing smuggling and similar offences with the object ofsafeguarding the levying and recovery of Customs duties. Ifthe legislature had intended to use the expression “policeofficer” for such wide purpose, it would have used morecomprehensive expression.It could have expressed its intentionCmore clearly by making any confession made to any officerwhose duty is to detect and prevent the commission of offencesinadmissible in evidence.”160. In Raja Ram Jaiswal v. State of Bihar[19], the majority(Raghubar Dayal, J. dissenting) held that the test for determining whetherDa person was “police officer” for the purpose of Section 25 of theEvidence Act would be whether the powers of police officer whichwere conferred on him, or which were exercisable by him because hewas deemed to be an officer in charge of Police Station, established adirect or substantial relationship with the prohibition enacted by Section25 of the Evidence Act. This Court held that the object of enactingESection 25 of the Evidence Act was to eliminate from considerationconfession to an officer, who by virtue of his position could extract byforce, torture or inducement, confession. If the power of investigationestablished direct relationship with prohibition under Section 25 of theEvidence Act, the mere fact that the officer might possess some otherFpowers under some other law, would not make him any less policeofficer, for the purpose of Section 25 of the Evidence Act.

161. In Raja Ram Jaiswal (supra) this Court found it difficult todraw rational distinction between confession recorded by policeofficer strictly so called, and the evidence recorded by an Excise Officer,Gacting under Section 78(3) of the Bihar and Orissa Excise Act, 1915,who was deemed to be police officer. Section 78(3) provided that anExcise Officer empowered under Section 77(2) of the Bihar and OrissaExcise Act, 1915 shall for the purpose of Section 156 of the Cr.P.C., bedeemed to be an officer in charge of Police Station with respect to the

H19 AIR 1964 SC 828

area to which his appointment as an Excise Officer extends. This Court,therefore found such an officer to be in the same position as an officerin charge of Police Station, making an investigation under ChapterXIV of the Cr.P.C.

162. This Court held that officers under the Bihar and OrissaExcise Act, 1915 not only had the duty to prevent commission of offencesunder the said Act but were entrusted with the duty of detection ofoffences under the said Act, as well and for these purposes they wereempowered in all respects as an officer in charge of Police Station.

163. Drawing distinction with officers under the Sea CustomsAct, 1878 and/or the Customs Act, 1962, the Court held that though theCustoms Officer can make an inquiry, he has no power to investigateinto offences under Section 156 of the Cr.P.C. Whatever power heexercises are expressly those set out in Chapter XVII which might beanalogous to those of police officer under the Cr.P.C but not identicalwith those of police officer. Thus , the Customs Officer is not entitledto submit report to Magistrate under Section 190 of the Cr.P.C. witha view that cognizance of the offence be taken by the Magistrate. Section187(a) of the Sea Customs Act specifically provides that cognizance ofan offence under the Sea Customs Act can be taken only upon complaintin writing made by the Customs Officer or other officer of the Customs,not below the rank of an Assistant Collector of Customs authorised bythe Chief Customs Officer.

164. It is true that in drawing distinction between an ExciseOfficer under the Bihar and Orissa Excise Act and Custom Officerunder the Sea Customs Act, this Court noticed the following differences.

(i) The Excise Officer does not exercise any judicial power as theCustoms Officer does under the Sea Customs Act, 1878.

(ii) The Customs Officer is not deemed to be an Officer in chargeof police station and therefore can exercise no powers under the Cr.P.C.and certainly not those of an Officer in charge of police station.

(iii) Though he can make an inquiry he has no power to investigateinto an offence under Section 156 of the Cr.P.C. Whatever powers heexercises are expressly set out in the Sea Customs Act.

(iv) Though some of those powers set out in Chapter XVII mightbe analogous to those of police officer under the Cr.P.C., they were

Anot identical to those of police officer. The Customs Officer is notentitled to submit report to Magistrate under Section 190 of theCr.P.C. Section 187(a) of the Sea Customs Act specially provides thatcognizance of an offence under the Sea Customs Act can be taken upona complaint in writing made by the Customs Officer or other officer ofthe Customs of specified rank. ..B

165. In Badku Joti Savant v. State of Mysore[20]the question ofwhether Central Excise Officer under the Central Excise and Salt Act1944 was police officer within the meaning of Section 25 of the EvidenceAct, fell for consideration before five-Judge Constitution Bench, in thecontext of Section 21 of the Central Excise and Salt Act, 1944 (nowCknown as the Central Excise Act, 1944), set out hereinbelow forconvenience:

“21. (1) When any person is forwarded under Section 19 toa Central Excise Officer empowered to send persons soarrested to Magistrate, the Central Excise Officer shallDproceed to inquire into the charge against him.

(2) For this purpose the Central Excise Officer may exercisethe same powers and shall be subject to the same provisionsas the officer incharge of police station may exercise and issubject to under the Code of Criminal Procedure, 1898, whenEinvestigating cognizable case:

Provided that….”

166. In Badku Joti Savant (supra) the Constitution Benchdistinguished Raja Ram Jaiswal (supra) held:F“9. ….It is true that sub-section (2) confers on the Central

F“9. ….It is true that sub-section (2) confers on the CentralExcise Officer under the Act the same powers as an officerincharge of police station has when investigating acognizable case;…….A police officer for purposes of clause(b) above can in our opinion only be police officer properlyso-called as the scheme of the Code of Criminal ProcedureGshows and it seems therefore that Central Excise Officerwill have to make complaint under clause (a) above if hewants the Magistrate to take cognizance of an offence, forexample, under Section 9 of the Act. Thus though under sub-

20 AIR 1966 SC 1746H

section (2) of Section 21 the Central Excise Officer under theAct has the powers of an officer incharge of police stationwhen investigating cognizable case, that is for the purposeof his inquiry under sub-section (1) of Section 21. Section 21is in terms different from Section 78 (3) of the Bihar and OrissaExcise Act, 1915 which came to be considered in Raja RamJaiswal case (1964) 2 SCR 752 and which provided in termsthat “for the purposes of Section 156 of the Code of CriminalProcedure, 1898, the area to which an excise officerempowered under Section 77, sub-section (2), is appointedshall be deemed to be police-station, and such officer shallbe deemed to be the officer incharge of such station”. Itcannot therefore be said that the provision in Section 21 is onpar with the provision in Section 78 (3) of the Bihar and OrissaExcise Act. All that Section 21 provides is that for the purposeof his enquiry, Central Excise Officer shall have the powersof an officer incharge of police station when investigatinga cognizable case. But even so it appears that these powersdo not include the power to submit charge-sheet underSection 173 of the Code of Criminal Procedure for unlike theBihar and Orissa Excise Act, The Central Excise Officer isnot deemed to be an officer incharge of police station.

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11. In any case unlike the provisions of Section 78(3) of theBihar and Orissa Excise Act, 1915, Section 21(2) of the Actdoes not say that the Central Excise Officer shall be deemedto be an officer-in-charge of police station and the areaunder his charge shall be deemed to be police station. Allthat Section 21 does is to give him certain powers to aid himin his enquiry. In these circumstances we are of opinion thateven though the Central Excise Officer may have when makingenquiries for purposes of the Act powers which an officerincharge of police station has when investigating acognizable offence, he does not thereby become policeofficer even if we give the broader meaning to those words inSection 25 of the Evidence Act.”

ABC

167. In Romesh Chandra Mehta v. State of West Bengal[21] fivejudge Constitution Bench of this Court considered the question of whethera Customs Officer under the Sea Customs Act 1878, was police officerwithin the meaning of Section 25 of the Evidence Act and whetherconfessional statements made to the Customs Officer were inadmissiblein evidence. The Constitution Bench held:

“5. ….. The broad ground for declaring confessions made toa police officer inadmissible is to avoid the danger ofadmitting false confessional statements obtained by coercion,torture or ill-treatment. But Customs Officer is not memberof the police force. He is not entrusted with the duty to maintainlaw and order. He is entrusted with powers which specificallyrelate to the collection of customs duties and prevention ofsmuggling. There is no warrant for the contention raised bycounsel for Mehta that Customs Officer is invested in theenquiry under the Sea Customs Act with all the powers whicha police officer in charge of police station has under theCode of Criminal Procedure...”

10. Counsel for Mehta contended that Customs Officer whohas power to detain, to arrest, to produce the person arrestedbefore Magistrate, and to obtain an order for remand andEkeep him in his custody with view to examine the person soarrested and other persons to collect evidence, hasopportunities which police officer has of extractingconfessions from suspect, and if the expression police officerbe not narrowly understood, statement recorded by him ofa person who is accused of an offence is inadmissible byFvirtue of Section 25 of the Indian Evidence Act. But the testfor determining whether an officer of customs is to be deemeda police officer is whether he is invested with all the powersof police officer qua investigation of an offence, includingthe power to submit report under Section 173 of the Code ofGCriminal Procedure. It is not claimed that Customs Officerexercising power to make an enquiry may submit reportunder Section 173 of the Code of Criminal Procedure.

24.He is, it is true, invested with the powers of an officer incharge of police station for the purpose of releasing anyH21 AIR 1970 SC 940

person on bail or otherwise. The expression “or otherwise”does not confer upon him the power to lodge report before aMagistrate under Section 173 of the Code of CriminalProcedure. Power to grant bail, power to collect evidence,and power to search premises or conveyances without recourseto Magistrate, do not make him an officer in charge of apolice station.”

168. In Illias v. Collector of Customs, Madras[22 ]a ConstitutionBench of five judges examined the earlier decisions of this Court,compared the duties and functions of police officers and Customs Officersand held that statements of the nature of confession made before aCustoms Officer would not be inadmissible in evidence on the groundthat Customs Officers were Police Officers within the meaning of Section25 of the Evidence Act. The Constitution Bench held:

“...(1) The police is the instrument for the prevention anddetection of crime which can be said to be the main object ofhaving the police. The powers of customs officers are reallynot for such purpose and are meant for checking thesmuggling of goods and due realization of customs duties andfor determining the action to be taken in the interest of therevenue country by way of confiscation of goods on whichno duty had been paid and by imposing penalties and fines.

(2) The customs staff has merely to make report in relationto offences which are to be dealt with by Magistrate. Thecustoms officer, therefore, is not primarily concerned with thedetection and punishment of crime but he is merely interestedin the detection and prevention of smuggling of goods andsafeguarding the recovery of customs duties.

(3) The powers of search etc. conferred on the customsofficers are of limited character and have limited objectof safeguarding the revenues of the State and the statute itselfrefers to police officers in contradiction to customs officers;

(4) If customs officer takes evidence under Section 171-Aand there is an admission of guilt, it will be too much to saythat that statement is confession to police officer as apolice officer never acts judicially and no proceeding before

22 AIR 1970 SC 1065

822SUPREME COURT REPORTS

[2020] 12 S.C.R.

Ahim is deemed to be judicial proceeding for the purpose ofSections 193 and 228 of the Indian Penal Code or for anyother purpose.”

169. As found in Illias (supra) the main function of the police isprevention and detection of crime. The Police Officers have powersBwide enough to extract confessions by intimidation or use of force orveiled threats of implication in some other crime. On the other hand, thepowers of officers under the NDPS Act are not for the prevention anddetection of crimes generally. These officers are only concerned withdetection and prevention of trafficking of and/or illegal trade/business innarcotic drugs and psychotropic substances. Powers of search, seizureCetc. conferred on officers of the NCB or other officers under the NDPSAct are of limited character. The NDPS Act itself refers to policeofficers in contra distinction to other officers under the NDPS Act.

170. In the State of Uttar Pradesh v. Durga Prasad[23] this Courtconsidered the question of whether an enquiry under Section 8(1) of theDRailway Property(Unlawful Possession) Act 1966, was an investigationunder Section 156 of the Cr. P C, and if so, whether statements recordedin course of investigation were hit by Section 162 of Cr. P and ifconfessional in nature, inadmissible in evidence under Section 25 of theEvidence Act. This Court held:

E“The right and duty of an Investigating Officer to file policereport or charge-sheet on the conclusion of investigation isthe hallmark of an investigation under the Code. Section173(1)(a) of the Code provides that as soon as theinvestigation is completed the officer-in-charge of the policeFstation shall forward to Magistrate empowered to takecognizance of the offence on police report, report in theform prescribed by the State Government. The officerconducting an inquiry under Section 8(1) cannot initiate courtproceedings by filing police report as is evident from thetwo provisos to Section 8(2) of the Act..... On the conclusionGof an enquiry under Section 8(1), therefore, if the officer ofthe Force is of the opinion that there is sufficient evidence orreasonable ground of suspicion against the accused, he mustfile complaint under Section 190(1)(a) of the Code in order

that the Magistrate concerned may take cognizance of theoffence.

Thus an officer conducting an inquiry under Section 8(1)of the Act does not possess all the attributes of an officer-in-charge of police station investigating case under ChapterXIV of the Code. He possesses but part of those attributeslimited to the purpose of holding the inquiry”.

171. In Balkishan Devidayal vs State of Maharashtra[24], thisCourt considered the question of whether an Inspector of the RailwayProtection Force enquiring into an offence under Section 3 of the RailwayProperty (Unlawful Possession) Act, 1966, could be said to be “policeofficer” under Section 25, Evidence Act. This Court, after review ofthe case law, concluded as under:

“In the light of the above discussion, it is clear that an officerof the RPF conducting an enquiry under Section 8(1) of the1966 Act has not been invested with all the powers of anofficer-in-charge of police station making an investigationunder Chapter XIV of the Code. Particularly, he has no powerto initiate prosecution by filing charge-sheet before theMagistrate concerned under Section 173 of the Code, whichhas been held to be the clinching attribute of an investigating‘police officer’. Thus, judged by the test laid down in BadkuJoti Savant[6], which has been consistently adopted in thesubsequent decisions noticed above, Inspector Kakade of theRPF could not be deemed to be ‘police officer’ within themeaning of Section 25 of the Evidence Act...”. (emphasissupplied)

172. In Raj Kumar Karwal v. Union of India and Ors.[25] referredto this Court for reconsideration, this Court considered the judgments ofthis Court in Balbir Singh v. State of Haryana[26]; State of Punjab v.Barkat Ram[27]; Raja Ram Jaiswal v. State of Bihar[28], Badku JotiSavant v. State of Mysore[29], (Constitution Bench), Romesh Chandra

24 (1980) 4 SCC 600

25 (1990) 2 SCC 409

26 (1987) 1 SCC 533

27 AIR 1962 SC 276

28 AIR 1964 SC 828

29 AIR 1966 SC 176

AMehta v. State of West Bengal[30 ](Constitution Bench); State of U.P. v.Durga Prasad[31]; Balkishna Devidayal v. State of Maharashtra[32]and held that even if an officer is invested under any special statute withpowers analogous to those exercised by police Officer in Charge of aPolice Station investigating cognizable offence, he does not therebybecome police officer under Section 25 of the Evidence Act unless heBhas the power to lodge report under Section 173 of the Cr.P.C. ThisCourt held:

“22. ...That is why this Court has since the decision in BadkuJoti Savant [(1966) 3 SCR 698 : AIR 1966 SC 1746 : 1966Cri LJ 1353] accepted the ratio that unless an officer isCinvested under any special law with the powers of investigationunder the Code, including the power to submit report underSection 173, he cannot be described to be ‘police officer’under Section 25, Evidence Act. Counsel for the appellants,however argued that since the Act does not prescribe theDprocedure for investigation, the officers invested with powerunder Section 53 of the Act must necessarily resort to theprocedure under Chapter XII of the Code which would requirethem to culminate the investigation by submitting reportunder Section 173 of the Code. Attractive though thesubmission appears at first blush, it cannot stand closeEscrutiny. In the first place as pointed out earlier there isnothing in the provisions of the Act to show that the legislaturedesired to vest in the officers appointed under Section 53 ofthe Act, all the powers of Chapter XII, including the power tosubmit report under Section 173 of the Code. But the issueFis placed beyond the pale of doubt by sub-section (1) ofSection 36-A of the Act which begins with non-obstanteclause — notwithstanding anything contained in the Code —and proceeds to say in clause (d) as under:

“36-A. (d) Special Court may, upon perusal of policereport of the facts constituting an offence under this Actor upon complaint made by an officer of the CentralGovernment or State Government authorised in this

30 AIR 1970 SC 94031 (1975) 3 SCC 210H32 (1980) 4 SCC 600

behalf, take cognizance of that offence without the accusedbeing committed to it for trial.”

This clause makes it clear that if the investigation is conductedby the police, it would conclude in police report but if theinvestigation is made by an officer of any other departmentincluding the DRI, the Special Court would take cognizanceof the offence upon formal complaint made by suchauthorised officer of the concerned government. Needless tosay that such complaint would have to be under Section190 of the Code. This clause, in our view, clinches the matter.We must, therefore, negative the contention that an officerappointed under Section 53 of the Act, other than policeofficer, is entitled to exercise ‘all’ the powers under ChapterXII of the Code, including the power to submit report orcharge-sheet under Section 173 of the Code. That being so,the case does not satisfy the ratio of Badku Joti Savant [(1966)3 SCR 698 : AIR 1966 SC 1746 : 1966 Cri LJ 1353] andsubsequent decisions referred to earlier.

173. In Raj Kumar Karwal (supra), this Court further held:

“At least three Constitution Benches consisting of five Judgeshave clearly and unequivocally held that, the test of whetheran officer other than police officer properly so called, ofsome other departments, investigation of an offence under aSpecial Act such as the Customs Act, was to be deemed to bea police officer was whether he was invested with all the powersof police officer qua investigation, including the power tosubmit report under Section 173.”

174. In Kanhaiyalal v. Union of India[33] this Court followed theearlier judgment in RaJ Kumar Karwal v. Union of India and Ors.[34]and held that officers of the Department of Revenue Intelligence investedunder Section 53 with the powers of an Officer in Charge of PoliceStation for the purpose of investigation of an offence under the NDPSAct were not police officers within the meaning of Section 25 of theEvidence Act and statement made under Section 67 of the NDPS Actwas not the same as statement made to the police under Section 161of the Cr.P.C. The judgments do not require reconsideration.

33 (2008) 4 SCC 668

34 (1990) 2 SCC 409

A175. It is not in dispute that officers under the NDPS Act aredrawn from different Government Departments and are not necessarilypolice officers as such. The NDPS Act also specifically differentiatespolice officers from other officers entrusted with powers under the NDPSAct, as will be evident, inter alia, from Sections 41(2), 42(1), 52(3)(a),53(1) and (2), 55, 68T.B

176. As observed above, Section 53 of the NDPS Act conferspower on the Central Government to invest any officer of the Departmentof Central Excise, Narcotics, Customs, Revenue, Intelligence or anyother Department of the Central Government, including para military orarmed forces or any such class of officers with the powers of an OfficerCin Charge of Police Station for the investigation of offences under theNDPS Act.

177. Similarly Section 53(2) empowers the State Government toinvest any officer of the Department of Drugs Control, Revenue or Exciseor any other Department, or any class of officers with the powers of anDOfficer in Charge of Police Station for the investigation of offencesunder the NDPS Act.

178. The proposition of law which emerges from the threeConstitution Bench judgments referred to above is that, for determiningwhether an officer of any other department of the Government, such asEa Central Excise Officer or Customs Officer, conducting an inquiry and/or investigation of an offence, could be deemed to be police officer,the test is, whether such officer had been invested with all the powers ofa police officer qua investigation, including the power to submit policereport under Section 173 of the Cr.P.C.F179. In

179. In Badku Jyoti Savant (supra), the Constitution Bench ofthis Court clearly held in effect and substance that conferment of thepowers of an Officer in Charge of Police Station, on governmentofficer, for the purpose of investigation of an offence under specialact, would not include the power to submit report under Section 173 ofGthe Cr.P.C, which police officer has. This view was reiterated by theConstitution Bench in Romesh Chandra Mehta (supra).

180. The powers of investigation conferred on Central ExciseOfficers under Section 21(2) of the Central Excise Act and on officersof the Railway Protection Force under Section 8(2) of the RailwayProperty (Unlawful Possession) Act are almost identical to the powersH

of investigation, with which an officer may be invested under Section 53of the NDPS Act. In Badku Joti Savant (supra) the Constitution Benchinterpreted Section 21(2) of the Central Excise Act (then titled the CentralExcise and Salt Act) and held that the power did not include the powerto submit report under Section 173 of the Cr.P.C. The Central ExciseOfficers were, accordingly, held not to be Police Officers within themeaning of Section 25 of the Evidence Act. The judgment of this Courtin Raja Ram Jaiswal (supra) was distinguished by the ConstitutionBench of this Court in Badku Joti Savant (supra). In Raj KumarKarwal (supra) the Bench rightly followed the larger five Judge Benchdecision, following the established norms of judicial discipline.

181. In Abdul Rashid v. State of Bihar[35], this Court consideredthe admissibility of confessional statement to Superintendent of Exciseunder Bihar and Orissa Excise Act, 1915. The issue was covered byRaja Ram Jaiswal (supra), which has been distinguished by theConstitution Bench in Badku Joti Savant (supra) since the officer wasdeemed to be an Officer in Charge of police station. Officers underthe NDPS Act are not deemed to be Officers in Charge of policestation. They exercise the power of an Officer in Charge of policeStation for the limited purpose of investigation of an offence under theNDPS Act with no power to file Police Report.

182. In Pon Adithan v. Deputy Director, Narcotics ControlBureau, Madras[36], this Court held that it could not be laid down as aproposition of law that in the absence of independent evidence andsupporting documentary evidence, the oral evidence of witnessconducting the search could not be recorded as sufficient for establishingcompliance with the requirement of Section 50(1) of the NDPS Act.This Court also held that confessional statement made by the Appellantwhile in custody of Intelligence Officer, Narcotics Intelligence Bureauwas admissible in evidence in the absence of any complaint or threat orpressure made by the accused when produced before the Magistrate.

183. The NDPS Act may loosely have been described as penalstatute in some judgments of this Court in the sense that the NDPS Actcontains stringent penal provisions including punishment of imprisonmentof twenty years and even death sentence in certain exceptional cases ofoffence repeated after earlier conviction.

35 (2001) 9 SCC 57836 (1999) 6 SCC 1

A184. To quote V. Sudhish Pai form, his book ‘ConstitutionalSupremacy – Revisit’

“Judgments and observations in judgments are not to be readas Euclid’s theorems or as provisions of statute. Judicialutterances/pronouncements are in the setting of the facts ofBa particular case. To interpret words and provisions of astatute it may become necessary for judges to embark uponlengthy discussions, but such discussion is meant to explainnot define. Judges interpret statutes, their words are not to beinterpreted as statutes. Thus, precedents are not to be readas statutes.”C

185. Constitution benches are constituted to resolve constitutionalissue, harmonize conflicting views and settle the law. Constitution benchdecision might only be reconsidered by Constitution Bench of largerstrength and that too in exceptional and compelling circumstances. Aninterpretation which has held the field for over fifty years should not beDupset for the asking. Change in the legal position which has held thefield through judicial precedents over length of time can only beconsidered when such change is absolutely imperative.186. The dominant object of the NDPS Act is to control andregulate operations relating to narcotic drugs and psychotropic substances,Eto provide for forfeiture of property derived from or used in illicit trafficin narcotic drugs and psychotropic substances, to implement the provisionsof the International Convention on Drugs and Psychotropic Substances,and for matters connected therewith.

187. On the other hand, the dominant object of penal statute isFto provide for punishment of range of intentional acts and omissions ofdifferent types, enumerated in the statute. The Indian Penal Code is atypical penal statute. Statutes like the Prevention of Corruption Act1988 and the Protection of Children from Sexual Offences Act 2012,which mainly provide for punishment of specific offences are also penalstatutes.G

188. In any case, it is well settled that penal statutes enacted todeal with social evil should liberally be construed to give effect to theobject for which the statute has been enacted as held by Nariman, J. in

Rajindere Singh v. State of Punjab[37] In M. Narayanan Nambiar v.State of Kerala[38], Constitution Bench of this Court construed Section5(1) (d) of the Prevention of Corruption Act, 1947. In construing thesaid Act, penal statute, Subba Rao, J. stated:-

9. “The Preamble indicates that the Act was passed as it wasexpedient to make more effective provisions for the preventionof bribery and corruption. The long title as well as thePreamble indicate that the Act was passed to put down thesaid social evil i.e. bribery and corruption by public servant.Bribery is form of corruption. The fact that in addition tothe word ‘bribery’ the word ‘corruption’ is used shows thatthe legislation was intended to combat also other evil inaddition to bribery. The existing law i.e. the Penal Code wasfound insufficient to eradicate or even to control the growingevil of bribery and corruption corroding the public serviceof our country. The provisions broadly include the existingoffences under Sections 161 and 165 of the Penal Code, 1860

committed by public servants and enact new rule ofpresumptive evidence against the accused. The Act also createsa new offence of criminal misconduct by public servantsthough to some extent it overlaps on the pre-existing offencesand enacts rebuttable presumption contrary to the well-known principles of criminal jurisprudence. It also aims toprotect honest public servants from harassment by prescribingthat the investigation against them could be made only bypolice officials of particular status and by making the sanctionof the Government or other appropriate officer pre-condition for their prosecution. As it is socially usefulmeasure conceived in public interest, it should be liberallyconstrued so as to bring about the desired object i.e. to preventcorruption among public servants and to prevent harassmentof the honest among them.

10. decision of the Judicial Committee in Dyke v. Elliott,The Gauntlet [(1872) LR 4 PC 184] , cited by the learnedcounsel as an aid for construction neatly states the principleand therefore may be extracted: Lord Justice James speakingfor the Board observes at LR p. 191:

37 (2015) 6 SCC 477

38 AIR 1963 SC 1116

A‘… No doubt all penal statutes are to be construed strictly,that is to say, the Court must see that the thing charged as anoffence is within the plain meaning of the words used, andmust not strain the words on any notion that there has been aslip, that there has been casus omissus, that the thing is soclearly within the mischief that it must have been intended toBbe included if thought of. On the other hand, the personcharged has right to say that the thing charged, althoughwithin the words, is not within the spirit of the enactment. Butwhere the thing is brought within the words and within thespirit, there penal enactment is to be construed, like anyCother instrument, according to the fair commonsense meaningof the language used, and the Court is not to find or makeany doubt or ambiguity in the language of penal statute,where such doubt or ambiguity would clearly not be found ormade in the same language in any other instrument.’

DIn our view this passage, if we may say so, restates the rule ofconstruction of penal provision from correct perspective.”

189. In Standard Chartered Bank v. Directorate ofEnforcement[39] the majority Judges held:-

“23. The counsel for the appellant contended that the penalEprovision in the statute is to be strictly construed. Referencewas made to Tolaram Relumal v. State of Bombay [AIR 1954SC 496 : 1954 Cri LJ 1333 : (1955) 1 SCR 158] , SCR at p.164 and Girdhari Lal Gupta v. D.H. Mehta [(1971) 3 SCC189 : 1971 SCC (Cri) 279] . It is true that all penal statutesFare to be strictly construed in the sense that the court mustsee that the thing charged as an offence is within the plainmeaning of the words used and must not strain the words onany notion that there has been slip that the thing is so clearlywithin the mischief that it must have been intended to beincluded and would have been included if thought of. All penalGprovisions like all other statutes are to be fairly construedaccording to the legislative intent as expressed in theenactment. Here, the legislative intent to prosecute corporatebodies for the offence committed by them is clear and explicit

and the statute never intended to exonerate them from beingprosecuted. It is sheer violence to common sense that thelegislature intended to punish the corporate bodies for minorand silly offences and extended immunity of prosecution tomajor and grave economic crimes.

24. The distinction between strict construction and morefree one has disappeared in modern times and now mostly thequestion is ‘what is true construction of the statute?’ passagein Craies on Statute Law, 7th Edn. reads to the followingeffect:

‘The distinction between strict and liberal constructionhas almost disappeared with regard to all classes ofstatutes, so that all statutes, whether penal or not, are nowconstrued by substantially the same rules. “All modern Actsare framed with regard to equitable as well as legalprinciples.” “A hundred years ago”, said the court in Lyonscase [R. v. Lyons, 1858 Bell CC 38 : 169 ER 1158] , “statuteswere required to be perfectly precise and resort was nothad to reasonable construction of the Act, and therebycriminals were often allowed to escape. This is not thepresent mode of construing Acts of Parliament. They areconstrued now with reference to the true meaning and realintention of the legislature.”

190. In Balram Kumawat v. Union of India[40], three-JudgeBench of this Court held:-

“23. Furthermore, even in relation to penal statute anynarrow and pedantic, literal and lexical construction may notalways be given effect to. The law would have to be interpretedhaving regard to the subject-matter of the offence and theobject of the law it seeks to achieve. The purpose of the lawis not to allow the offender to sneak out of the meshes of law.Criminal jurisprudence does not say so.”

191. In Reema Aggrawal v. Anupam[41], this Court construingthe provisions of Dowry Prohibition of Act followed Lord Denning’sjudgment in Seaford Court Estates Ltd. V Asher[42 ]and held :-

40 (2003) 7 SCC 62841 (2004) 3 SCC 19942 (1949) 2 ALL ER 155(CA)

A“…He must set to work on the constructive task of findingthe intention of Parliament, and he must do this not only fromthe language of the statute, but also from consideration ofthe social conditions which gave rise to it and of the mischiefwhich it was passed to remedy, and then he must supplementthe written word so as to give “force and life” to the intentionBof the legislature.”

192. In Rajinder Singh v. State of Punjab (supra), Nariman J.,reiterated the proposition laid down in the judgments referred to aboveand held “ fair and pragmatic construction keeping in mind the greatsocial evil that has led to the enactment of Section 304-B would make itCclear that the expression “soon” is relative expression. Time-lags maydiffer from case to case. The expression “soon before” is relativeterm to determine what period which can come within the terms “soonbefore” is left to be determined by the Courts depending upon the factsand circumstances of the case.D

193. The Central Excise Act may be revenue law aimed at theimposition, collection and/or realisation of Excise duty on notified goods.The purpose of the NDPS Act is obviously different. It cannot, however,be said that the NDPS Act, being penal statute, in contradistinction tothe Customs Act and the Central Excise Act, whose dominant object isEto protect the revenue of the State, judicial interpretation of powers ofinvestigation under those Acts, which are almost identical to the powersof investigation of an officer under the NDPS Act, would not be relevantto investigation under the NDPS Act.

194. The Central Excise Act has stringent penal provisions forFeffective implementation of the said Act. Offences punishable underclauses (b) and (bbbb) of sub-section (1) of Section 9 for serious dutyevasion and contravention of any of the provisions of the Central ExciseAct or Rules made thereunder in relation to credit of any duty allowed tobe utilised towards payment of excise duty on final products, are alsocognizable and non bailable. Many of the offences under the CentralGExcise Act, 1944 are punishable with imprisonment, which may extendto seven years.

195. Some of the provisions of the Central Excise Act 1944, areset out hereinbelow:

“9. Offences and Penalties.—(1) Whoever commits any of thefollowing offences, namely:— (a) contravenes any of theprovisions of Section 8 or of rule made under clause (iii) orclause (xxvii) of sub-section (2) of Section 37;

(b) evades the payment of any duty payable under this Act;

(bb) removes any excisable goods in contravention of any ofthe provisions of this Act or any rules made thereunder or inany way concerns himself with such removal;

(bbb) acquires possession of, or in any way concerns himselfin transporting, depositing, keeping, concealing, selling orpurchasing, or in any other manner deals with any excisablegoods which he knows or has reason to believe are liable toconfiscation under this Act or any rule made thereunder;

(bbbb) contravenes any of the provisions of this Act or therules made thereunder in relation to credit of any duty allowedto be utilised towards payment of excise duty on final products;

(c) fails to supply any information which he is required byrules made under this Act to supply, or (unless with areasonable belief, the burden of proving which shall be uponhim, that the information supplied by him is true) suppliesfalse information;

(d) attempts to commit, or abets the commission of, any of theoffences mentioned in clauses (a) and (b) of this section;

shall be punishable,—

(i) in the case of an offence relating to any excisable goods,the duty leviable thereon under this Act exceeds fifty lakh ofrupees, with imprisonment for term which may extend toseven years and with fine:

Provided that in the absence of special and adequate reasonsto the contrary to be recorded in the judgment of the Courtsuch imprisonment shall not be for term of less than sixmonths;

(ii) in any other case, with imprisonment for term whichmay extend to three years or with fine or with both.]

(2) If any person convicted of an offence under this sectionis again convicted of an offence under this section, then, heshall be punishable for the second and for every subsequentoffence with imprisonment for term which may extend toseven years and with fine:

BProvided that in the absence of special and adequate reasonsto the contrary to be recorded in the judgment of the Court suchimprisonment shall not be for term of less than six months.

9-C. Presumption of culpable mental state.— (1) In anyprosecution for an offence under this Act which requires aculpable mental state on the part of the accused, the Courtshall presume the existence of such mental state but it shallbe defence for the accused to prove the fact that he had nosuch mental state with respect to the act charged as an offencein that prosecution.

Explanation.— In this section, “culpable mental state”includes intention, motive, knowledge of fact, and belief in,or reason to believe, fact.

(2) For the purposes of this section, fact is said to be provedonly when the Court believes it to exist beyond reasonableEdoubt and not merely when its existence is established by apreponderance of probability.

9-D. Relevancy of statements under certain circumstances.—(1) statement made and signed by person before anyCentral Excise Officer of gazetted rank during the courseFof any inquiry or proceeding under this Act shall be relevant,for the purpose of proving, in any prosecution for an offenceunder this Act, the truth of the facts which it contains,—

(a) when the person who made the statement is dead or cannotbe found, or is incapable of giving evidence, or is kept out ofthe way by the adverse party, or whose presence cannot beGobtained without an amount of delay or expense which, underthe circumstances of the case, the Court considersunreasonable; or

(b) when the person who made the statement is examined as awitness in the case before the Court and the Court is of opinion

that, having regard to the circumstances of the case, thestatement should be admitted in evidence in the interests ofjustice.

(2) The provisions of sub-section (1) shall, so far as may be,apply in relation to any proceeding under this Act, other thana proceeding before Court, as they apply in relation to aproceeding before Court.

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12-F. Power of search and seizure.— (1) Where theJoint Principal Commissioner of Central Excise orCommissioner of Central Excise or Additional PrincipalCommissioner of Central Excise or Commissioner of CentralExcise or such other Central Excise Officer as may be notifiedby the Board has reasons to believe that any goods liable toconfiscation or any documents or books or things, which inhis opinion shall be useful for or relevant to any proceedingsunder this Act, are secreted in any place, he may authorise inwriting any Central Excise Officer to search and seize or mayhimself search and seize such documents or books or things.

(2) The provisions of the Code of Criminal Procedure, 1973(2 of 1974), relating to search and seizure shall, so far asmay be, apply to search and seizure under this section subjectto the modification that sub-section (5) of Section 165 of thesaid Code shall have effect as if for the word “Magistrate”,wherever it occurs, the words “Principal Commissioner ofCentral Excise or Commissioner of Central Excise]” weresubstituted.

13. Power to arrest.— Any Central Excise Officer not belowthe rank of Inspector of Central Excise may, with the priorapproval of the Principal Commissioner of Central Excise orCommissioner of Central Excise], arrest any person whom hehas reason to believe to be liable to punishment under thisAct or the rules made thereunder.

(2) Any person accused or reasonably suspected of committingan offence under this Act or any rules made thereunder, who

on demand of any officer duly empowered by the CentralGovernment in this behalf refuses to give his name andresidence, or who gives name or residence which such officerhas reason to believe to be false, may be arrested by suchofficer in order that his name and residence may beascertained.

14. Power to summon persons to give evidence and producedocuments in inquiries under this Act.— (1) Any Central ExciseOfficer duly empowered by the Central Government in thisbehalf shall have power to summon any person whoseattendance he considers necessary either to give evidence orCto produce document or any other thing in any inquiry whichsuch officer is making for any of the purposes of this Act. Asummons to produce documents or other things may be forthe production of certain specified documents or things orfor the production of all documents or things of certainDdescription in the possession or under the control of the personsummoned.

(2) All persons so summoned shall be bound to attend, eitherin person or by an authorised agent, as such officer maydirect; and all persons so summoned shall be bound to statethe truth upon any subject respecting which they are examinedor make statements and to produce such documents and otherthings as may be required:

Provided that the exemptions under Sections 132 and 133 ofthe Code of Civil Procedure, 1908 (5 of 1908) shall beapplicable to requisitions of attendance under this section.

(3) Every such inquiry as aforesaid shall be deemed to be a“judicial proceeding” within the meaning of Section 193 andSection 228 of the Indian Penal Code, 1860 (45 of 1860).

Sections 36(A) and 36(B)(1) of the Central Excise Act provideGas follows:

36-A. Presumption as to documents in certain cases.—Whereany document is produced by any person or has been seizedfrom the custody or control of any person, in either case,under this Act or under any other law and such document is

tendered by the prosecution in evidence against him or againsthim and any other person who is tried jointly with him, theCourt shall,—

(a) unless the contrary is proved by such person, presume—

(i) the truth of the contents of such document;

(ii) that the signature and every other part of such documentwhich purports to be in the handwriting of any particularperson or which the Court may reasonably assume to havebeen signed by, or to be in the handwriting of, any particularperson, is in that person’s handwriting, and in the case of adocument executed or attested, that it was executed or attestedby the person by whom it purports to have been so executedor attested;

(b) admit the document in evidence, notwithstanding that it isnot duly stamped, if such document is otherwise admissible inevidence.

36-B. Admissibility of microfilms, facsimile copies ofdocuments and computer printouts as documents and as

evidence.—(1) Notwithstanding anything contained in anyother law for the time being in force,—

(a) microfilm of document or the reproduction of the imageor images embodied in such microfilm (whether enlarged ornot); or

(b) facsimile copy of document; or

(c) statement contained in document and included in aprinted material produced by computer (hereinafter referredto as “computer printout”), if the conditions mentioned insub-section (2) and the other provisions contained in thissection are satisfied in relation to the statement and thecomputer in question,

shall be deemed to be also document for the purposes ofthis Act and the rules made thereunder and shall be admissiblein any proceedings thereunder, without further proof orproduction of the original, as evidence of any contents of the

[2020] 12 S.C.R.

Aoriginal or of any fact stated therein of which direct evidencewould be admissible.”

196. The Customs Act, 1962 has been enacted to consolidate andamend the law relating to customs. The Customs Act regulates importand export of goods to and from India, apart from levy and collection ofBcustoms duty. One of the dominant objects of the Customs Act is toprevent smuggling of goods. Chapter IV of the Customs Act enablesthe Central Government to prohibit the import or export of goods of anyspecified description for various reasons, including prevention of shortage,the protection of human, animal or plant life or health, the protection oftrade marks, patent, copyright, prevention of deceptive practices,Cimplementation of any treaty or convention etc. The examples areillustrative and not exhaustive.

197. The said Act contains stringent penal provisions to enforcecompliance with the said Act. Offences under sub-Section 4 of Section9 of the Customs Act, for example, any offence relating to prohibitedDgoods or evasion or attempted evasion of duty exceeding certain value,or fraudulent availing of or attempt to avail drawback or exemption etc.are cognizable offences.

198. Some of the offences under the Customs Act are punishablewith imprisonment which may extend to seven years apart from fine.EUnder Section 135(A) of the Customs Act, even person who makespreparation to export any goods in contravention of the provisions of theCustoms Act, is punishable with imprisonment for term which mayextend to three years, or with fine or with both. The Customs Officersare conferred with powers of search, seizure and arrest under the CustomsFAct. When any goods are seized under the Customs Act in the beliefthat they are smuggled, the burden of proving that the goods were notsmuggled is on the person from whose possession, the goods were seized.If the person from whom the goods are seized is not the owner, theburden would fall on the person who claims to be the owner. ChapterXIII of the Customs Act 1962 relates to searches, seizure and arrestGunder the said Act.199. Some of the provisions of the Customs Act are set outhereinbelow:

“100. Power to search suspected person entering or leavingIndia, etc. —(1) If the proper officer has reason to believeH

that any person to whom the section applies has secreted abouthis person, any goods liable to confiscation or any documentsrelating thereto, he may search that person.

(2) This section applies to the following persons, namely—

(a) any person who has landed from or is about to board oris on board any vessel within the Indian customs waters;

(b) any person who has landed from or is about to board, oris on board foreign-going aircraft;

(c) any person who has got out of, or is about to get into, oris in, vehicle, which has arrived from, or is to proceed toany place outside India;

(d) any person not included in clauses (a), (b) or (c) who hasentered or is about to leave India;

(e) any person in customs area.

101. Power to search suspected persons in certain othercases.—(1) Without prejudice to the provisions of Section 100,if an officer of customs, empowered in this behalf by generalor special order of the Commissioner of Customs, has reasonto believe that any person has secreted about his person anygoods of the description specified in sub-section (2) whichare liable to confiscation, or documents relating thereto, hemay search that person.

102. Persons to be searched may require to be taken beforegazetted officer of customs or magistrate.—(1) When anyofficer of customs is about to search any person under theprovisions of Section 100 or Section 101, the officer of customsshall, if such person so requires, take him without unnecessarydelay to the nearest gazetted officer of customs or magistrate.

(2) If such requisition is made, the officer of customs maydetain the person making it until he can bring him before thegazetted officer of customs or the magistrate.

(3) The gazetted officer of customs or the magistrate beforewhom any such person is brought shall, if he sees noreasonable ground for search, forthwith discharge the personbut otherwise shall direct that search be made.

A(4) Before making search under the provisions of Section100 or Section 101, the officer of customs shall call upontwo or more persons to attend and witness the search andmay issue an order in writing to them or any of them so to do;and the search shall be made in the presence of such personsand list of all things seized in the course of such searchBshall be prepared by such officer or other person and signedby such witnesses.

(5) No female shall be searched by anyone excepting female.

103. Power to screen or X-ray bodies of suspected personsCfor detecting secreted goods.—(1) Where the proper officerhas reason to believe that any person referred to in sub-section(2) of Section 100 has any goods liable to confiscationsecreted inside his body, he may detain such person andshall,—

D(a) with the prior approval of the Deputy Commissioner ofCustoms or Assistant Commissioner of Customs, as soon aspracticable, screen or scan such person using such equipmentas may be available at the customs station, but withoutprejudice to any of the rights available to such person underany other law for the time being in force, including his consentEfor such screening or scanning, and forward report of suchscreening or scanning to the nearest magistrate if such goodsappear to be secreted inside his body; or

(b) produce him without unnecessary delay before the nearestmagistrate.F

104. Power to arrest.—(1) If an officer of customs empoweredin this behalf by general or special order of the Commissionerof Customs has reason to believe that any person * * *hascommitted an offence punishable under Section 132 orSection 133 or Section 135 or Section 135-A or Section 136,Ghe may arrest such person and shall, as soon as may be, informhim of the grounds for such arrest.]

(2) Every person arrested under sub-section (1) shall, withoutunnecessary delay, be taken to magistrate.

105. Power to search premises.—(1) If the AssistantHCommissioner of Customs, or in any area adjoining the land

frontier or the coast of India an officer of customs speciallyempowered by name in this behalf by the Board, has reasonto believe that any goods liable to confiscation, or anydocuments or things which in his opinion will be useful for orrelevant to any proceeding under this Act, are secreted in anyplace, he may authorise any officer of customs to search ormay himself search for such goods, documents or things.

(2) The provisions of the Code of Criminal Procedure, 1898(5 of 1898), relating to searches shall, so far as may be, applyto searches under this section subject to the modification thatsub-section (5) of Section 165 of the said Code shall haveeffect as if for the word “Magistrate”, wherever it occurs,the words “Commissioner of Customs” were substituted.

106. Power to stop and search conveyances.—(1) Where theproper officer has reason to believe that any aircraft, vehicleor animal in India or any vessel in India or within the Indiancustoms waters has been, is being, or is about to be, used inthe smuggling of any goods or in the carriage of any goodswhich have been smuggled, he may at any time stop any suchvehicle, animal or vessel or, in the case of an aircraft, compelit to land, and—

(a) rummage and search any part of the aircraft, vehicle orvessel;

(b) examine and search any goods in the aircraft, vehicle orvessel or on the animal;

(c) break open the lock of any door or package for exercisingthe powers conferred by clauses (a) and (b), if the keys arewithheld.

107. Power to examine persons.—Any officer of customsempowered in this behalf by general or special order of theCommissioner of Customs may, during the course of anyenquiry in connection with the smuggling of any goods,—

(a) require any person to produce or deliver any documentor thing relevant to the enquiry;

(b) examine any person acquainted with the facts andcircumstances of the case.

108. Power to summon persons to give evidence and producedocuments.—(1) Any gazetted officer of customs * * *, shallhave power to summon any person whose attendance heconsiders necessary either to give evidence or to produce adocument or any other thing in any inquiry which such officeris making under this Act.

(2) summons to produce documents or other things may befor the production of certain specified documents or thingsor for the production of all documents or things of certaindescription in the possession or under the control of the personsummoned.

(3) All persons so summoned shall be bound to attend eitherin person or by an authorised agent, as such officer maydirect; and all persons so summoned shall be bound to statethe truth upon any subject respecting which they are examinedor make statements and produce such documents and otherDthings as may be required:

Provided that the exemption under Section 132 of the Codeof Civil Procedure, 1908 (5 of 1908), shall be applicable toany requisition for attendance under this section.

E(4) Every such inquiry as aforesaid shall be deemed to be ajudicial proceeding within the meaning of Section 193 andSection 228 of the Indian Penal Code (45 of 1860).”

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123. Burden of proof in certain cases:(1) Where any goodsFto which this section applies are seized under this Act in thereasonable belief that they are smuggled goods, the burdenof proving that they are not smuggled goods shall be—

(a) in case where such seizure is made from the possessionof any person,—

(i) on the person from whose possession the goods were seized;and

(ii) if any person, other than the person from whose possessionthe goods were seized, claims to be the owner thereof, also,on such other person;

(b) in any other case, on the person, if any who claims to bethe owner of the goods so seized.

(2) This section shall apply to gold and manufactures thereof,watches and any other class of goods which the CentralGovernment may by notification in the Official Gazettespecify.”

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“138. Offences to be tried summarily —Notwithstandinganything contained in the Code of Criminal Procedure, 1898(5 of 1898) an offence under this Chapter other than anoffence punishable under clause (i) of sub-section (1) ofSection 135 or under sub-section (2) of that section may betried summarily by Magistrate.

138-A. Presumption of culpable mental state.—(1) In anyprosecution for an offence under this Act which requires aculpable mental state on the part of the accused, the courtshall presume the existence of such mental state but it shallbe defence for the accused to prove the fact that he had nosuch mental state with respect to the act charged as an offencein that prosecution.

Explanation.—In this section, “culpable mental state” includesintention, motive, knowledge of fact and belief in, or reasonto believe, fact.

(2) For the purposes of this section, fact is said to be provedonly when the court believes it to exist beyond reasonabledoubt and not merely when its existence is established by apreponderance of probability.

138-B. Relevancy of statements under certaincircumstances.—(1) statement made and signed by personbefore any gazetted officer of customs during the course ofany inquiry or proceeding under this Act shall be relevant,for the purpose of proving, in any prosecution for an offenceunder this Act, the truth of the facts which it contains,—

(a) when the person who made the statement is dead or cannotbe found, or is incapable of giving evidence, or is kept out of

the way by the adverse party, or whose presence cannot beobtained without an amount of delay or expense which, underthe circumstances of the case, the court considersunreasonable; or

(b) when the person who made the statement is examined as awitness in the case before the court and the court is of opinionthat, having regard to the circumstances of the case, thestatement should be admitted in evidence in the interests ofjustice.

(2) The provisions of sub-section (1) shall, so far as may be, applyin relation to any proceeding under this Act, other than proceedingbefore court, as they apply in relation to proceeding before acourt.]

138-C. Admissibility of micro films, facsimile copies ofdocuments and computer print outs as documents and asDevidence.—(1) Notwithstanding anything contained in anyother law for the time being in force,—

(a) micro film of document or the reproduction of theimage or images embodied in such micro film (whetherenlarged or not); or

E(b) facsimile copy of document; or

(c) statement contained in document and included in aprinted material produced by computer (hereinafter referredto as “computer print out”), if the conditions mentioned insub-section (2) and the other provisions contained in thisFsection are satisfied in relation to the statement and thecomputer in question,

shall be deemed to be also document for the purposes ofthis Act and the rules made thereunder and shall be admissiblein any proceedings thereunder, without further proof ofGproduction of the original, as evidence of any contents of theoriginal or of any fact stated therein of which direct evidencewould be admissible.

(2) The conditions referred to in sub-section (1) in respect ofa computer print out shall be the following, namely:—

(a) the computer print out containing the statement wasproduced by the computer during the period over which thecomputer was used regularly to store or process informationfor the purposes of any activities regularly carried on overthat period by the person having lawful control over the useof the computer;

(b) during the said period, there was regularly supplied tothe computer in the ordinary course of the said activities,information of the kind contained in the statement or of thekind from which the information so contained is derived;

(c) throughout the material part of the said period, thecomputer was operating properly or, if not, then any respectin which it was not operating properly or was out of operationduring that part of that period was not such as to affect theproduction of the document or the accuracy of the contents;and

(d) the information contained in the statement reproduces oris derived from information supplied to the computer in theordinary course of the said activities.

(3) Where over any period, the function of storing orprocessing information for the purposes of any activitiesregularly carried on over that period as mentioned in clause(a) of sub-section (2) was regularly performed by computers,whether—

(a) by combination of computers operating over that period;or

(b) by different computers operating in succession over thatperiod; or

(c) by different combinations of computers operating insuccession over that period; or

(d) in any other manner involving the successive operationover that period, in whatever order, of one or more computersand one or more combinations of computers,

all the computers used for that purpose during that periodshall be treated for the purposes of this section as constituting

single computer; and references in this section to computershall be construed accordingly.

(4) In any proceedings under this Act and the rules madethereunder where it is desired to give statement in evidenceby virtue of this section, certificate doing any of theBfollowing things, that is to say,—

(a) identifying the document containing the statement anddescribing the manner in which it was produced;

(b) giving such particulars of any device involved in theproduction of that document as may be appropriate for thepurpose of showing that the document was produced by acomputer;

(c) dealing with any of the matters to which the conditionsmentioned in sub-section (2) relate,

Dand purporting to be signed by person occupying aresponsible official position in relation to the operation ofthe relevant device or the management of the relevant activities(whichever is appropriate) shall be evidence of any matterstated in the certificate; and for the purposes of this sub-section it shall be sufficient for matter to be stated to theEbest of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) information shall be taken to be supplied to computer ifit is supplied thereto in any appropriate form and whether itis so supplied directly or (with or without human intervention)Fby means of any appropriate equipment;

(b) whether in the course of activities carried on by anyofficial, information is supplied with view to its being storedor processed for the purposes of those activities by computeroperated otherwise than in the course of those activities, thatGinformation, if duly supplied to that computer, shall be takento be supplied to it in the course of those activities;

(c) document shall be taken to have been produced by acomputer whether it was produced by it directly or (with orwithout human intervention) by means of any appropriateHequipment.

Explanation.—For the purposes of this section,—

(a) “computer” means any device that receives, stores andprocesses data, applying stipulated processes to theinformation and supplying results of these processes; and

(b) any reference to information being derived from otherinformation shall be reference to its being derived therefromby calculation, comparison or any other process.]

139. Presumption as to documents in certain cases.—Whereany document—

(i) is produced by any person or has been seized from thecustody or control of any person, in either case, under thisAct or under any other law, or

(ii) has been received from any place outside India in thecourse of investigation of any offence alleged to have beencommitted by any person under this Act,

and such document is tendered by the prosecution in evidenceagainst him or against him and any other person who is triedjointly with him, the court shall—

(a) presume, unless the contrary is proved, that the signatureand every other part of such document which purports to bein the handwriting of any particular person or which the courtmay reasonably assume to have been signed by, or be in thehandwriting of, any particular person, is in that person’shandwriting, and in the case of document executed orattested, that it was executed or attested by the person bywhom it purports to have been so executed or attested;

(b) admit the document in evidence, notwithstanding that it isnot duly stamped, if such document is otherwise admissible inevidence;

(c) in case falling under clause (i) also presume, unless thecontrary is proved, the truth of the contents of such document.]

Explanation.—For the purposes of this section, ‘document’includes inventories, photographs and lists certified by aMagistrate under sub-section (1-C) of Section 110.”

A200. Sections 100 and 101 empower the proper officer of customsto conduct personal search. Section 103 enables the proper officer toscreen or x-ray the bodies of persons if he has reason to believe that anyperson referred to in Section 100(2) has any goods, liable to confiscation,secreted inside his body. An empowered officer of customs has powerof arrest under Section 104, powers to search premises under SectionB105, power to stop and search conveyances under Section 106.

201. Section 107 of the Customs Act enables any officer ofcustoms, duly empowered by general or special order of the PrincipalCommissioner of Customs/Commissioner of Customs to require anyperson to produce or deliver any document or thing relevant to the enquiryCand to examine any person acquainted with the facts and circumstancesof the case, during the course of any enquiry in connection with thesmuggling of any goods.

202. Section 108 (1) empowers any gazetted officer of customsto summon any person, whose attendance he considers necessary, eitherDto give evidence or to produce document or any other thing in anyinquiry which such officer is making under the Customs Act. UnderSection 108(3) all persons so summoned are bound to attend, either inperson or by an authorised agent, as may be directed. All persons sosummoned shall be bound to state the truth. Section 108(4) providesEthat every such inquiry as aforesaid shall be deemed to be judicialproceeding within the meaning of Sections 193 and 228 of the IndianPenal Code. In Union of India v. Padam NarainAggarwal and Ors.[43],this Court held that statements recorded under Section 108 are distinctand different from statements recorded by the police officer during thecourse of investigation under the Code of Criminal Procedure.F

203. It is well settled that statements recorded under Section 108are admissible in evidence. Reference may be made to K. I. Pavunnyv. Assistant Collector (H.Q.) Central Excise Collectorate, Cochin[44].In N. J. Sukhawani v. Union of India[45], this Court held that thestatement made under Section 108 of the Customs Act is materialGpiece of evidence collected by customs officials. statement made bythe co accused can be used against others.

43 (2008) 13 SCC 30544 (1997) 3 SCC 721H45 AIR 1996 SC 522

204. The Foreign Exchange Regulation Act, 1973 (FERA) wasan Act to amend the law regulating dealings in foreign exchange andsecurities, transactions indirectly affecting foreign exchange and theimport and export of currency, for the conservation of foreign exchangeresources of the country and proper utilization thereof in the interest ofthe economic development of the country. The FERA was repealed bythe Foreign Exchange Management Act (FEMA). Some of the relevantprovisions of the FERA are set out hereinbelow:-

“34 Power to search suspected persons and to seizedocuments.- (1) If any officer of Enforcement authorised inthis behalf by the Central Government, by general or specialorder, has reason to believe that any person has secreted abouthis person or in anything under his possession, ownership orcontrol any documents which will be useful for, or relevantto, any investigation or proceeding under this Act, he maysearch that person or such thing and seize such documents.

(2) When any officer of Enforcement is about to search anyperson under the provisions of this section, the officer ofEnforcement shall, if such person so requires, take such personwithout unnecessary delay to the nearest Gazetted Officer ofEnforcement superior in rank to him or magistrate.

(3) If such requisition is made, the officer of Enforcementmay detain the person making it until he can bring him beforethe Gazetted Officer of Enforcement or the magistrate referredto in sub-section (2).

4) The Gazetted Officer of Enforcement or the magistratebefore whom any such person is brought shall, if he sees noreasonable ground for search, forthwith discharge the personbut otherwise shall direct that search be made.

(5) Before making search under the provisions of thissection, the officer of Enforcement shall call upon two ormore persons to attend and witness the search and may issuean order in writing to them or any of them so to do; and thesearch shall be made in the presence of such persons and alist of all documents seized in the course of such search shallbe prepared by such officer and signed by such witnesses.(6) No female shall be searched by any one excepting female.

A35. Power to arrest.- (1) If any officer of Enforcementauthorised in this behalf by the Central Government, bygeneral or special orders has reason to believe that anyperson in India or within the Indian customs waters has beenguilty of an offence punishable under this Act, he may arrestsuch person and shall, as soon as may be, inform hi m of theBgrounds for such arrest.

(2) Every person arrested under sub-section ( 1 ) shall withoutunnecessary delay, be taken to magistrate.

(3) Where any officer of Enforcement has arrested any personunder sub-section (1), he shall, for the purpose of releasingsuch person on bail or otherwise, have the same powers andbe subject to the same provisions as the officer-in-charge ofa police station has, and is subject to, under the Code ofCriminal Procedure, 1973 ( 2 of 1974 ).

36. Power to stop and search conveyances.- If any officer ofEnforcement authorised in this behalf by the CentralGovernment, by general or special order has reason to believethat any document which will be useful for, or relevant to,any investigation or proceeding under this Act is secreted inany aircraft or vehicle or on any animal in India or in anyvessel in India or within the Indian customs waters, he may atany time stop any such vehicle or animal or vessel or, in thecase of an aircraft, compel it to stop or land, and-

(a) rummage and search any part of the aircraft, vehicle orvessel;

(b) examine and search any goods in the aircraft, vehicle orvessel or on the animal;

(c) seize any such document as is referred to above;

(d) break open the lock of any door or package for exercisingthe powers conferred by clauses (a), (b) and (c), if the keysare withheld.

37. Power to search premises.- (1) If any officer ofEnforcement, not below the rank of an Assistant Director ofEnforcement, has reason to believe that any documents which,

in his opinion, will be useful for, or relevant to anyinvestigation or proceeding under this Act, are secreted inany place, he may authorise any officer of Enforcement tosearch for and seize or may himself search for and seize suchdocuments.

(2) The provisions of the1 [Code of Criminal Procedure, 1973( 2 of 1974 )] relating to searches, shall, so far as may be,apply to searches under the section subject to the modificationthat sub-section ( 5 ) of section 165 of the said Code shallhave effect as if for the word “Magistrate”, wherever it occurs,the words “Director of Enforcement or other officer exercisinghis powers” were substituted.

38. Power to seize documents, etc.- Without prejudice to theprovisions of section 34 or section 36 or section 37, if anyofficer of Enforcement authorised in this behalf by the CentralGovernment, by general or special order, has reason to believethat any document or thing will be useful for, or relevant to,any investigation or proceeding under this Act or in respectof which contravention of any of the provisions of this Actor of any rule, direction or order thereunder has taken place,he may seize such document or thing.

39. Power to examine persons.- The Director of Enforcementor any other officer of Enforcement authorised in this behalfby the Central Government, by general or special order may,during the course of any investigation or proceeding underthis Act,-

(a) require any person to produce or deliver any documentrelevant to the investigation or proceeding;

(b) examine any person acquainted with the facts andcircumstances of the case.

40. Power to summon persons to give evidence and producedocuments.- (1) Any Gazetted Officer of Enforcement shallhave power to summon any person whose attendance heconsiders necessary either to give evidence or to produce adocument during the course of any investigation or proceedingunder this Act.

(2) summon to produce documents may be for the productionof certain specified documents or for the production of alldocuments of certain description in the possession or underthe control of the person summoned.

(3) All persons so summoned shall be bound to attend eitherin person or by authorised agents, as such officer may direct;and all persons so summoned shall be bound to state the truthupon any subject respecting which they are examined or makestatements and produce such documents as may be required:

Provided that the exemption under section 132 of the Codeof Civil Procedure, 1908 (5 of 1908) shall be applicable toany requisition for attendance under this section.

(4) Every such investigation or proceeding as aforesaid shallbe deemed to be judicial proceeding within the meaning ofsections 193 and 228 of the Indian Penal Code, 1860 (45 of1860)

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56. Offences and prosecutions.- (1) Without prejudice toany award of penalty by the adjudicating officer under thisAct, if any person contravenes any of the provisions of thisAct [other than section 13, clause (a) of sub-section (1) of1[section 18, section 18A), clause (a) of sub-section (1) ofsection 19, sub-section (2) of section 44 and sections 57 and58], or of any rule, direction or order made thereunder heshall, upon conviction by court, be punishable,-

(i) in the case of an offence the amount or value involved inwhich exceeds one lakh of rupees, with imprisonment for aterm which shall not be less than six months, but which mayextend to seven years and with fine:

Provided that the court may, for any adequate and specialreasons to be mentioned in the judgment, impose sentenceof imprisonment for term of less than six months;

ii) in any other case, with imprisonment for term which mayextend to three years or with fine or with both.

(2) If any person convicted of an offence under this Act [notbeing an offence under section 13 or clause (a) or sub-section(1) of1 [section 18 or section 18A) or clause (a) of sub-section(1) of section 19 or sub-section (2) of section 44 or section57 or section 58] is again convicted of an offence under thisAct [not being an offence under section 13 or clause (a) ofsub-section (1) of [section 18 or section 18A] or clause (a)of subsection (1) of section 19 or sub-section (2) of section44 or section 57 or section 58], he shall be punishable forthe second and for every subsequent offence with imprisonmentfor term which shall not be less than six months but whichmay extend to seven years and with fine:

Provided that the court may, for any adequate and specialreasons to be mentioned in the judgment, impose sentenceof imprisonment for term of less than six months.

(3) Where person having been convicted of an offence underthis Act, [not being an offence under section 13 or clause (a)of sub-section (1) of1 [section 18 or section 18A] or clause(a) of sub-section (1) of section 19 or sub-section (2) of section44 or section 57 or section 58], is again convicted of offenceunder this Act [not being an offence under section 13 or clause(a) of sub-section (1) of1 [section 18 or section 18A] or clause(a) of sub-section (1) of section 19 or sub-section (2) of section44 or section 57 or section 58], the court by which suchperson is convicted may, in addition to any sentence whichmay be imposed on him under this section, by order, directthat that person shall not carry on such business as the courtmay specify, being business which is likely to facilitate thecommission of such offence for such period not exceedingthree years, as may be specified by the court in the order.

(4) For the purposes of sub-sections (1) and (2), the followingshall not be considered as adequate and special reasons forawarding sentence of imprisonment for term of less thansix months, namely:-

(i) the fact that the accused has been convicted for the firsttime of an offence under this Act;

(ii) the fact that in any proceeding under this Act, other thana prosecution, the accused has been ordered to pay penaltyor the goods in relation to such proceedings have beenordered to be confiscated or any other penal action has beentaken against him for the same offence;

B(iii) the fact that the accused was not the principal offenderand was acting merely as carrier of goods or otherwisewas secondary party in the commission of the offence;

(iv) the age of the accused.

(5) For the purposes of sub-sections (1) and (2), the fact thatan offence under this Act has caused no substantial harm tothe general public or to any individual shall be an adequateand special reason for awarding sentence of imprisonmentfor term of less than six months.

(6) Nothing in the proviso to section 188 of the Code ofDCriminal Procedure, 1973 (2 of 1974) shall apply to anyoffence punishable under this section.

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59. Presumption of culpable mental state.- (1) In anyprosecution for any offence under this Act which requires aEculpable mental state on the part of the accused, the courtshall presume the existence of such mental state but it shallbe defence for the accused to prove the fact that he had nosuch mental state with respect to the act charged as an offencein that prosecution.

Explanation. —In this section, “culpable mental state”includes intention, motive, knowledge of fact and belief in,or reason to believe, fact.

(2) For the purposes of this section, fact is said to be provedonly when the court believes it to exist beyond reasonableGdoubt and not merely when its existence is established by apreponderance of probability.

(3) The provisions of this section shall, so far as may be,apply in relation to any proceeding before an adjudicating

officer as they apply in relation to any prosecution for anoffence under this Act.

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62. Certain offences to be non-cognizable.- Subject to theprovisions of section 45 and notwithstanding anythingcontained in the Code of Criminal Procedure, 1973 (2 of1974), an offence punishable under section 56 shall bedeemed to be non-cognizable within the meaning of thatCode.”

205. The Railway Property (Unlawful Possession) Act, 1966, asstated in its preamble, is comprehensive Act to deal with unlawfulpossession of goods entrusted to the Railways as common carrier andto make the punishment for such offences more deterrent. The dominantobject, or to be precise, the only object of the Railway Property (UnlawfulPossession) Act, 1966 is to punish theft, dishonest misappropriation orunlawful possession of railway property.

206. Some of the provisions of the Railway Property (UnlawfulPossession) Act are:-

3. Penalty for theft, dishonest misappropriation or unlawfulpossession of railway property.— Whoever commits theft, ordishonestly misappropriates or is found, or is proved] to havebeen, in possession of any railway property reasonablysuspected of having been stolen or unlawfully obtained shall,unless he proves that the railway property came into hispossession lawfully, be punishable—

(a) for the first offence, with imprisonment for term whichmay extend to five years, or with fine, or with both and in theabsence of special and adequate reasons to be mentioned inthe judgment of the court, such imprisonment shall not beless than one year and such fine shall not be less than onethousand rupees;

(b) for the second or subsequent offence, with imprisonmentfor term which may extend to five years and also with fineand in the absence of special and adequate reasons to bementioned in the judgment of the court, such imprisonment

shall not be less than two years and such fine shall not beless than two thousand rupees.

Explanation.—For the purposes of this section, “theft” and“dishonest misappropriation” shall have the same meaningsas assigned to them respectively in section 378 and section403 of the Indian Penal Code (45 of 1860).

4. Punishment for abetment, conspiracy or connivance atoffences.- Whoever abets or conspires in the commission ofan offence punishable under this Act, or any owner] oroccupier of land or building, or any agent of such owner oroccupier incharge of the management of that land or building,who wilfully connives at an offence against the provisions ofthis Act, shall be punishable with imprisonment for termwhich may extend to five years, or with fine, or with both.

Explanation.—For the purposes of this section, the words“abet” and “conspire” shall have the same meanings asassigned to them respectively in sections 107 and 120A of theIndian Penal Code (45 of 1860.)

—5. Offences under the Act not to be cognizable.Notwithstanding anything contained in the Code of CriminalProcedure, 1898 (5 of 1898), an offence under this Act shallnot be cognizable.

6. Power to arrest without warrant.—Any superior officer ormember of the Force may, without an order from Magistrateand without warrant, arrest any person who has beenconcerned in an offence punishable under this Act or againstwhom reasonable suspicion exists of his having been soconcerned.

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8. Inquiry how to be made.—(1) When an officer of the Forcereceives information about the commission of an offencepunishable under this Act, or when any person is arrested]by an officer of the Force for an offence punishable underthis Act or is forwarded to him under section 7, he shallproceed to inquire into the charge against such person

(2) For this purpose the officer of the Force may exercise thesame powers and shall be subject to the same provisions asthe officer incharge of police-station may exercise and issubject to under the Code of Criminal Procedure, 1898 (5 of1898), when investigating cognizable case: Provided that—

(a) if the officer of the Force is of opinion that there is sufficientevidence or reasonable ground of suspicion against theaccused person, he shall either admit him to bail to appearbefore Magistrate having jurisdiction in the case, or forwardhim in custody to such Magistrate;

(b) if it appears to the officer of the Force that there is notsufficient evidence or reasonable ground of suspicion againstthe accused person, he shall release the accused person onhis executing bond, with or without sureties as the officerof the Force may direct, to appear, if and when so requiredbefore the Magistrate having jurisdiction, and shall make afull report of all the particulars of the case to his officialsuperior.

9. Power to summon persons to give evidence and producedocuments.—(1) An officer of the Force shall have power tosummon any person whose attendance he considers necessaryeither to give evidence or to produce document, or any otherthing in any inquiry which such officer in making for any ofthe purposes of this Act.

(2) summons to produce documents or other things may befor the production of certain specified documents or thingsor for the production of all documents or things of certaindescription in the possession or under the control of the personsummoned.

(3) All persons, so summoned, shall be bound to attend eitherin person or by an authorised agent as such officer may direct;and all persons so summoned shall be bound to state the truthupon any subject respecting which they are examined or makestatements and to produce such documents and other thingsas may be required:

AProvided that the exemptions under sections 132 and 133 ofthe Code of Civil Procedure, 1908 (5 of 1908), shall beapplicable to requisitions for attendance under this section.

(4) Every such inquiry as aforesaid, shall be deemed to be a“judicial proceeding” within the meaning of sections 193 and 228Bof the Indian Penal Code (45 of 1860).”

207. Even though the offences under the Railway Property(Unlawful Possession) Act are not cognizable, they entail punishment ofimprisonment for term which may extend to five years. Any memberof the force may exercise power of arrest without an order from aCmagistrate and without warrant even on mere suspicion, if reasonable.

208. An officer of the force on receipt of information aboutcommission of the offences punishable under the Act may inquire intothe charges against the person and for this purpose the officer mightexercise “the same powers and shall be subject to the same provisionsDas the Officer in Charge of Police Station may exercise and is subjectto under the Code of Criminal Procedure, 1898, when investigating acognizable case.” Proceedings before the officer are in the nature ofjudicial proceedings.

209. It is true, as argued by Mr. Jain, that an enquiry under theECentral Excise Act, 1944 or the Customs Act 1962 is judicial proceedingwithin the meaning of Sections 193 and 198 of the Indian Penal Code, byvirtue of Section 14(4) of the Central Excise Act and Section 108(4) ofthe Customs Act, which are identical provisions and read “Every suchinquiry as aforesaid shall be deemed to be judicial proceeding withinthe meaning of Section 193 and Section 228 of the Indian Penal CodeF(Act 45 of 1860)” Section 40(4) of FERA and Section 9(4) of theRailway Property (Unlawful Possession Act) 1966 are also identical toand/or verbatim reproductions of Section 14(4) of the Central ExciseAct and Section 108(4) of the Customs Act.

210. Sections 193 and 228 of the IPC are set out hereinbelow forGconvenience:

“193. Punishment for false evidence.—Whoever intentionallygives false evidence in any stage of judicial proceeding, orfabricates false evidence for the purpose of being used inany stage of judicial proceeding, shall be punished with

imprisonment of either description for term which mayextend to seven years, and shall also be liable to fine;

and whoever intentionally gives or fabricates false evidencein any other case, shall be punished with imprisonment ofeither description for term which may extend to three years,and shall also be liable to fine.

Explanation 1.—A trial before Court-martial * * * is ajudicial proceeding.

Explanation 2.—An investigation directed by law preliminaryto proceeding before Court of Justice, is stage of judicialproceeding, though that investigation may not take placebefore Court of Justice.

228. Intentional insult or interruption to public servant sittingin judicial proceeding.—Whoever intentionally offers anyinsult, or causes any interruption to any public servant, whilesuch public servant is sitting in any stage of judicialproceeding, shall be punished with simple imprisonment fora term which may extend to six months, or with fine whichmay extend to one thousand rupees, or with both.”

211. An offence punishable with imprisonment under the CentralExcise Act, the Customs Act, the FERA, the Railway Property (unlawfulpossession) Act or any other similar enactment is triable by the Court ofcompetent jurisdiction.

212. Investigation into offences under the Acts mentioned above,namely the Central Excise Act, the Customs Act, the FERA (nowrepealed), the Railway Property (unlawful possession) Act, termed asinquiry, are held by departmental officials duly authorized to enable theconcerned authorities to decide whether complaint should be filed beforethe Competent Court. If the information gathered and/or materialsobtained so warrant, complaint is filed.

213. An inquiry under the Central Excise Act by any Central ExciseOfficer, empowered by the Central Government, or under the CustomsAct, by any officer of customs empowered by general or special orderof the Principal Commissioner/Commissioner of Customs or under theFERA by an Enforcement Officer or under the Railway Property(Unlawful Possession) Act 1961 by an officer of the Railway Protection

AForce is not the same as proceeding in Court of Law or Tribunal.Such an inquiry is preliminary to trial by Court of competent jurisdiction.It is akin to an enquiry conducted by public servant under any otherlaw with penal provisions including an enquiry under the NDPS Act.

214. Investigation under these Acts have been given the status ofBjudicial proceedings within the meaning of Sections 193 and 228 of theIPC, unlike investigation of an offence under the NDPS Act. The onlydifference is that the person making statement in an investigation underany of these Acts, is burdened with the consequences of giving falseevidence in any other judicial proceedings including proceedings in aCourt of Law, punishable with imprisonment which may extend to threeCyears and also fine [Section 193 IPC] or of intentional insult or interruptionto public servant at any stage of “judicial proceeding” punishablewith imprisonment which might extend to six months or with fine or both[Section 228 IPC].

215. Since investigation under the Acts referred to above, namelyDthe Central Excise Act, the Customs Act, the Railway Property (UnlawfulPossession) Act has been given the status of judicial proceedings todeter persons from making false statements or otherwise intentionallyhampering the investigation, the Legislature has deemed it appropriateto use the expression “shall have power to summon any person whoseEpresence he considers necessary either to give evidence or to produce adocument”

216. The expression ‘evidence’ has apparently been used to createan aura of proceedings, akin to proceedings in Court of Law. Howeverthe admissibility of the statements and/or documents obtained is not anyFhigher only because the proceedings are judicial proceedings and theexpression “evidence” has been used. The prosecution would still haveto prove its case at the time of trial by adducing evidence. The so called‘evidence’ in the inquiry is not the same as evidence in trial. Documentswould still have to be tendered and proved at the time of trial. Whetherany documents and/or statements obtained in course of investigationGwould at all be admissible in evidence at the trial and if so, the extent towhich they would be relevant, would be decided by the Court trying theoffence, having regard to the applicable law.

217. It is true that an Inquiry or investigation under the NDPS Actis not judicial proceeding, just as an Inquiry or investigation by theH

police under the Cr.P.C. is not judicial proceeding. However, casualobservation in judgment of this Court, that “a police officer never actsjudicially” in the context of an analysis of the reasons for inclusion ofSection 25 of the Evidence Act, under which no confession to policeofficer is to be proved as against person accused of any offence,cannot be construed to lay down the proposition of law, that confessionalstatement made to an officer in course of an enquiry before that officercannot be tendered or proved in evidence, if the enquiry is not judicialproceeding. Nor can such an observation be construed as reverseproposition that all confessions in an enquiry before an officer, who isnot police officer, but deemed to be police officer for all purposes, withall the powers of police officer including the power akin to Section173(2) of the Cr.P.C, can be tendered and proved in evidence, onlybecause the enquiry is judicial proceeding within the meaning of Section193 or 228 of the IPC, in the sense that person intentionally givingfalse evidence in such proceeding, or intentionally insulting or causinginterruption to person holding such an enquiry is punishable withimprisonment.

218. Significantly the Constitution Benches in Romesh ChandraMehta (supra) and Illias (supra) have made distinction betweenpolice officers and other officers exercising the powers of police officerfor investigation of an offence under special act by comparing therestricted police powers of the latter with the far wider powers of theformer including those under the Police Acts.

219. The fact that the provisions of Chapter V of the NDPS Act,which confer powers of entry, search, seizure, arrest, investigation andinquiry on certain officers, do not expressly use the phrase “collectevidence” is not really material to the issue of whether such officers arepolice officers to attract the bar of Section 25 of the Evidence Act.

220. Section 67 of the NDPS Act enables an officer referred to inSection 42 authorized by the Central or State Government to (i) call forinformation from any person, (ii) require any person to produce or deliverany useful or relevant document or thing and (iii) to examine any personacquainted with the facts and circumstances of the case, during thecourse of any inquiry in connection with the contravention of any provisionof the NDPS Act.

A221. Similarly, an officer invested under Section 53 of the NDPSAct with the power of Officer in Charge of Police Station for thepurpose of investigation of an offence under the NDPS Act has thepower to require the attendance of any person who appears to beacquainted with the facts and circumstances of the case and to examinesuch person.B

222. It is difficult to appreciate how the fact that an inquiry underthe Central Excise Act or the Customs Act or the FERA or any otherAct which might be deemed to be judicial proceeding to attract thepenal provisions of Sections 193 and 228 of IPC, should make anydifference to the admissibility in evidence, of the statements made in anCenquiry under the NDPS Act.

223. It is true that all offences under the NDPS Act are cognizableunder Section 37 of the NDPS Act. As observed above, some of theoffences under the Central Excise Act and the Customs Act are alsocognizable. Under Section 2(c) “cognizable offence” means an offenceDfor which police officer may arrest without warrant and under Section2(l) defines “non cognizable offence” to mean an offence for which apolice officer has no authority to arrest without warrant. Even thoughoffences under the Railway Property (Unlawful Possession) Act arenot cognizable, Section 6 of the said Act empowers any superior officerEor member of the Railway Protection Force to arrest any personconcerned with an offence under the said Act, without an order from aMagistrate and without warrant.224. Section 25 of the Evidence Act does not differentiate betweenevidence in trial for non cognizable offence and evidence in trial forFcognizable offence. The admissibility of evidence does not depend onwhether an offence is ‘cognizable’ or non-cognizable’. The mere factthat an offence was cognizable, enabling the police to arrest withoutwarrant, should not make any difference to the admissibility or theprobative value of the evidence adduced by the prosecution during thetrial of the offence.G

225. Significantly, as observed above, some of the offences underthe Central Excise Act and the Customs Act are also cognizable. It mayalso be pertinent to point out that while all offences under the NDPS Actincluding those punishable with imprisonment up to one year arecognizable, offences in the Railway Property (Unlawful possession) Act

1966, punishable with imprisonment of seven years, have been madenon cognizable.

226. There can be no doubt that the mandatory provisions of theNDPS Act to ensure fair trial of the accused must be enforced. However,over-emphasis on the principles of natural justice in drug-trafficking casescan be major hindrance to the apprehension of offenders. In offencesunder the NDPS Act, substantial compliance should be treated assufficient for the procedural requirements, because such offencesadversely affect the entire society. The lives of thousands of personsget ruined.

227. There can be no doubt that the fundamental rights underArticle 20(3) and 21 are important fundamental rights which occupy apride of place in the Indian Constitution. These rights are non negotiableand have to zealously be protected, with alacrity.

228. Legislature lacks the power to enact any law whichcontravenes fundamental rights guaranteed under the Constitution. Anystatute and/or statutory provision which violates fundamental right isliable to be struck down as ultra vires, unless protected from challengeon the ground of violation of fundamental rights by Article 31(A), 31(B)or 31(C) of the Constitution of India.

229. While Article 21 of the Constitution of India provides that noperson shall be deprived of his life or liberty, except according to procedureestablished by law, Article 20 (3) provides that no person accused ofany offence shall be compelled to be witness against himself.

230. The right to live has liberally been construed by this Court tomean the right to live with dignity. All the human rights enumerated inthe Universal Declaration of Human Rights (UDHR) adopted on 10[th]December 1948 by the United Nations come within the ambit of theright to live under Article 21, of which no person can be deprived exceptby following procedure established by law.

231. The Right to live under Article 21 also includes the right toprivacy. This right is an extremely valuable right, intrinsic in Article 21.In K. S. Puttaswamy and Anr. v. Union of India and Ors.[46], nine-Judge Bench of this Court unanimously held that the right to privacy is afundamental right. However, the question of whether provisions of entry,

Asearch, seizure and arrest would violate the right to privacy of personaccused of an offence was not in issue. Be that as it may, referencemay be made to the following observations of this Court:-

“Chandrachud, J. (for Khehar, CJ., Agrawal, J., himself andNazeer, J.

“313. Privacy has been held to be an intrinsic element of theright to life and personal liberty under Article 21 and as aconstitutional value which is embodied in the fundamentalfreedoms embedded in Part III of the Constitution. Like theright to life and liberty, privacy is not absolute. The limitationsCwhich operate on the right to life and personal liberty wouldoperate on the right to privacy. Any curtailment or deprivationof that right would have to take place under regime of law.The procedure established by law must be fair, just andreasonable. The law which provides for the curtailment ofthe right must also be subject to constitutional safeguards.”

Chelameswar, J.

“377.It goes without saying that no legal right can beabsolute. Every right has limitations. This aspect of the matteris conceded at the Bar. Therefore, even fundamental rightEto privacy has limitations. The limitations are to be identifiedon case-to-case basis depending upon the nature of theprivacy interest claimed. There are different standards ofreview to test infractions of fundamental rights. While theconcept of reasonableness overarches Part III, it operatesdifferently across Articles (even if only slightly differentlyFacross some of them). Having emphatically interpreted theConstitution’s liberty guarantee to contain fundamental rightto privacy, it is necessary for me to outline the manner inwhich such right to privacy can be limited. I only do this toindicate the direction of the debate as the nature of limitationis not at issue here.

xxxxxx

380.The just, fair and reasonable standard of review underArticle 21 needs no elaboration. It has also most commonlybeen used in cases dealing with privacy claim hitherto.

[District Registrar and Collector v. Canara Bank, (2005) 1SCC 496 : AIR 2005 SC 186] , [State of Maharashtra v. BharatShanti Lal Shah, (2008) 13 SCC 5] Gobind [Gobind v. Stateof M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468] resorted tothe compelling State interest standard in addition to the Article21 reasonableness enquiry. From the United States, where theterminology of “compelling State interest” originated, strictstandard of scrutiny comprises two things—a “compelling Stateinterest” and requirement of “narrow tailoring” (narrowtailoring means that the law must be narrowly framed toachieve the objective). As term, “compelling State interest”does not have definite contours in the US. Hence, it is criticalthat this standard be adopted with some clarity as to whenand in what types of privacy claims it is to be used. Only inprivacy claims which deserve the strictest scrutiny is thestandard of compelling State interest to be used. As for others,the just, fair and reasonable standard under Article 21 willapply. When the compelling State interest standard is to beemployed, must depend upon the context of concrete cases.However, this discussion sets the ground rules within which alimitation for the right to privacy is to be found.”

Bobde, J.

“403. …….. Nor is the right to privacy lost when personmoves about in public. The law requires specificauthorization for search of person even where there issuspicion.”

Nariman, J.

“525….. In the ultimate analysis, the fundamental right toprivacy, which has so many developing facets, can only bedeveloped on case-to-case basis. Depending upon theparticular facet that is relied upon, either Article 21 by itselfor in conjunction with other fundamental rights would getattracted.

526. But this is not to say that such right is absolute. Thisright is subject to reasonable regulations made by the Stateto protect legitimate State interests or public interest. However,when it comes to restrictions on this right, the drill of various

articles to which the right relates must be scrupulouslyfollowed. For example, if the restraint on privacy is overfundamental personal choices that an individual is to make,State action can be restrained under Article 21 read withArticle 14 if it is arbitrary and unreasonable; and underArticle 21 read with Article 19(1)(a) only if it relates to thesubjects mentioned in Article 19(2) and the tests laid downby this Court for such legislation or subordinate legislationto pass muster under the said article. Each of the tests evolvedby this Court, qua legislation or executive action, under Article21 read with Article 14; or Article 21 read with Article 19(1)(a)in the aforesaid examples must be met in order that State actionpass muster. In the ultimate analysis, the balancing act that isto be carried out between individual, societal and Stateinterests must be left to the training and expertise of thejudicial mind.

D536. This reference is answered by stating that the inalienablefundamental right to privacy resides in Article 21 and otherfundamental freedoms contained in Part III of the Constitutionof India. M.P. Sharma [M.P. Sharma v. Satish Chandra, AIR1954 SC 300 : 1954 Cri LJ 865 : 1954 SCR 1077] and themajority in Kharak Singh [Kharak Singh v. State of U.P., AIRE1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] , tothe extent that they indicate to the contrary, stand overruled.The later judgments of this Court recognising privacy as afundamental right do not need to be revisited. These casesare, therefore, sent back for adjudication on merits to theForiginal Bench of three Hon’ble Judges of this Court in lightof the judgment just delivered by us.”

Kaul, J.

“629. The right of an individual to exercise control over hispersonal data and to be able to control his/her own life wouldalso encompass his right to control his existence on theinternet. Needless to say that this would not be an absoluteright. The existence of such right does not imply that acriminal can obliterate his past…...”

232. In Maneka Gandhi v. Union of India[47], this Court held thatthe procedure established by the law for depriving person of his life orpersonal liberty must be fair, reasonable and free of arbitrariness. Aprocedure for deprivation of liberty, which is arbitrary and oppressivecan not be said to be in conformity with Article 14 and would thus notclear the test of fair and reasonable procedure in Article 21 of theConstitution.

233. While the right to fair trial by an impartial Court and/orTribunal is human right under the UDHR and an essential concomitantof the fundamental rights, at the same time, the fairness of trial has to beseen not only from the point of view of the accused, but also from thepoint of view of the victim and the society. crime under the NDPS Actis crime against society and not just an individual or group ofindividuals. While the safeguards in the NDPS Act must scrupulously beadhered to prevent injustice to an accused, the Court should be vigilantto ensure that guilty offenders do not go scot free by reason of overemphasis on technicalities. Substantial justice must be done. Every pieceof evidence should be objectively scrutinized, evaluated and consideredto arrive at final decision.

234. Article 20(3) of the Constitution gives protection to person:

(i) accused of an offence

(ii) against compulsion “to be witness”and

(iii) against himself

235. Compulsion is an essential ingredient of the bar of Article20 (3) of the Constitution. Article 20 (3) does not bar the admission of astatement, 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 offeringhimself to be examined as witness. The constitutional protection againstcompulsion to be witness is available only to persons “accused of anoffence”, and not persons other than the accused. It is protectionagainst compulsion to be witness and it is protection against compulsionresulting in giving evidence against himself.

47 AIR 1978 SC 597

236. As held in Balkishan Devidayal vs State ofMaharashtra[48], formal accusation may be made in an FIR or formalcomplaint or any other formal document or notice served which ordinarilyresults in his prosecution in court. The protection would not apply beforethe person is made as an accused in formal complaint.

B237. In Nandini Satpathy v. P.L. Dani and Anr.[49] cited by Mr.Jain, three-Judge Bench of this Court held that the protection of Article20(3) goes back to the stage of investigation and that accordingly he isentitled to refuse to answer incriminating questions. An accused has theright of silence. As held in Nandini Satpathy (supra) any mode ofpressure, subtle or crude, mental or physical, direct or indirect,Cbut sufficiently substantial, applied by the policeman for obtaininginformation from an accused strongly suggestive of guilt, becomescompelled testimony. This principle would apply with equal force toany testimony in an investigation before person other than policeofficer including an officer under the NDPS Act.

238. Compulsion may be in many forms. It may be physical ormental. However, mental compulsion takes place when the mind hasbeen so conditioned by some extraneous process, as to render the makingof the statement involuntary and therefore, extorted. This propositionfinds support from the judgment of this Court in State of Bombay v.EKathi Kalu Oghad[50]; Poolpandi and Ors. v. Superintendent CentralExcise and Ors.[51]. Statements obtained by continuous and prolongedinterrogation for hours at stretch in unhealthy, unhygienic, uncomfortableand inconvenient conditions, without proper food, drinking water,washroom facilities etc. may not be accepted as voluntary.

F239. The immunity under Article 20(3) does not extend tocompulsory production of documents or material objects or to compulsionto give specimen writing, specimen signature, thumb impression, fingerprints or blood samples. However, compulsion regarding documentsattracts the bar of Article 20 (3) if the documents convey personalknowledge of the accused relating to the charge. Reference may beG

48 (1980) 4 SCC 60049 (1978) 2 SCC 42450 AIR 1961 SC 180851 AIR 1992 SC 1795H

made to the judgments of this Court in Mohamed Dastagir v. State ofMadras[52]and State of Bombay v. Kathi Kalu Oghad[53]. Similarly, thisCourt has frowned upon narco analysis as the statement so made isinduced and, therefore, involuntary.

240. In Sampath Kumar v. Enforcement Office, EnforcementDirectorate, Madras[54], this Court held that when person wassummoned and examined under Section 40 of the Foreign ExchangeRegulation Act, 1973, it could not be presumed that the statement wasobtained under pressure or duress. The statement cannot be attackedon the ground of infringement of the constitutional guarantee of protectionagainst is incrimination under Article 20(3) of the Constitution of India.

241. There can be no doubt that any confession made undercompulsion to any person whether or not police officer would attractArticle 20(3) of the Constitution. Any confession made under compulsionwould also be hit by Section 24 of the Evidence Act. Confession undercompulsion is no evidence in the eye of law.

242. confessional statement, if not obtained by compulsion, asjudicially explained, would be hit by Sections 25 and 26 only if suchstatement is made to police officer (Section 25 of the Evidence Act) orwhile in the custody of police officer and not in the presence of aMagistrate (Section 26 of the Evidence Act). It is now settled by theConstitution Bench in Badku Joti Sawant (supra) and RomeshChandra Mehta (supra) and plethora of judgments of this Court thatSection 25 would only apply to police officer or an officer who exercisesall the powers of police officer including the power of filing policereport under Section 173 of the Cr.PC. An officer under the NDPS Actdoes not have the power to file police report under Section 173 of theCr.P.C.243. confessional statement does not automatically result in theconviction of an accused offender. Such statements have to be tenderedand proved in accordance with the law. The evidentiary value of thestatement which is confessional in nature has to be weighed and assessedby the Court at the trial.

52 AIR 1960 SC 756

53 1961 SC 1808

54 1997 8 SCC 358

A244. As stated by this Court in Vishnu Pratap Sugar Works Pvt.Ltd. v. Chief Inspector of Stamp, U.P.[55], Statute is an edict of thelegislature and has to be construed according to “the intent of those thatmake it”.

245. If statutory provision is open to more than one interpretation,Bthe Court has to choose that interpretation which represents the trueintention of the legislature. It is to be presumed that in enacting postconstitutional law the legislative intent could not have been to violate anyfundamental right.

246. In ascertaining the intention of the legislature the Court is toexamine two aspects, the meaning of the words and phrases used in theCstatute and the purpose and object or the reason and spirit pervadingthrough the statute.

247. Legislative intention, that is the true legal meaning of anenactment, is deduced by considering the meaning of the words used inthe enactment, in the light of any discernible purposes or object of theDenactment. When any question arises as to the meaning of any provisionin statute, it is proper to read that provision in the context of the intentionof the legislature. The intention of the Legislature must be found byreading the statute as whole.

248. statute or any statutory provision must be construed andEinterpreted in manner that makes the statute effective and operativeon the principle expressed in the maxim ut res magis valeat quam pereatand/or in other words, the principle that courts while pronouncing on theconstitutionality of statute starts with the presumption in favour ofconstitutionality and prefer construction which keeps the statute withinthe competence of the legislature.F249. Thus when statute is vague, the Court will give such aninterpretation that keeps the statute in conformity with the fundamentalrights. Similarly, if statute is capable of two interpretations one ofwhich violates the fundamental rights and the other of which protectsthe fundamental rights the court would opt for the latter.G250. When statutory provision is clear and there is no ambiguity,this Court cannot alter that provision by its interpretation. To do so, wouldbe to legislate, which this Court is not competent to do. If provision isfree from ambiguity or vagueness, and is clear, but violative of afundamental right, the Court will have to strike the same down. Any

omission in statute cannot be filled in by Court as to do that wouldamount to the legislation and not construction. The Court cannot fill incasus omissus and language permitting Court should avoid creating casusomissus where there is none. In the interpretation of statute the Courtsmust always presume that legislature inserted every part thereof for apurpose and the legislative intention is that every part of the statuteshould have effect.

251. The attention of this Bench has not been drawn to anyambiguous provision capable of two or more interpretations, one of whichwould be in consonance with the fundamental rights and the other violativeof the fundamental rights. Counsel appearing in support of the appealshave in effect invited this Court to introduce further safeguards, notcontemplated by the legislature in the NDPS Act through the process ofinterpretation.

252. The proposition of law in Directorate of Revenue andAnother v. Mohammed Nisar Holia[56]cited by Mr. Jain is well settled.There is no doubt that the NDPS Act contains severe penal provisions.There can also be no dispute with the proposition that when harshprovisions, lead to severe sentence, balance has to be struck betweenthe need of the law and enforcement thereof on the one hand and theprotection of citizen from oppression and injustice. The requirementsof Section 42 and 43 have to be complied with strictly and in letter andspirit.

253. There can be no quarrel with the proposition that the powerof search, seizure and arrest is founded upon the competent officer dulyempowered having “reason to believe”, which might be based on personalknowledge, or secret information provided by an informant whose nameneed not be disclosed.

254. It is also obvious that person who does not break the law isentitled to enjoy his life and liberty, which includes the right not to bedisturbed in his room, or for that matter elsewhere, without complyingwith the mandatory safeguards of the NDPS Act. The presumption underSection 66 of the NDPS Act in respect of the truth and contents ofdocuments seized, would not apply to an illegible fax, the contents ofwhich could not be proved. Mohammad Nisar Holia (supra) does notsay that statement made to an officer invested with powers underSection 53 or 67 cannot be used against the accused. The findings withregard to the illegible fax were rendered in the facts and circumstancesof the case.

A255. In State of Punjab v. Baldev Singh[57], this Court observedthat the question of whether or not the procedure prescribed under theNDPS Act for personal search had been followed and the requirementsof the relevant sections in this regard satisfied was matter of trial. Itwould neither be feasible nor possible to lay down any absolute formula.The observation is equally applicable to entry, search, seizure, arrest,Bholding of inquiry/investigation including the examination of persons.

256. As observed above, an inquiry/investigation under the NDPSAct does not culminate in any report. The inquiry is in the nature of apreliminary inquiry which may lead to the filing of complaint in theSpecial Court. The Prosecution has to prove its case before the SpecialCourt which would examine, analyze, assess and weigh the evidence onCrecord. Suspicion can in no circumstances be substitute for evidence.As held by this Court in State of Punjab v. Baldeo Singh[58], RiteshChakaravarty v. State of Madhya Pradesh[59], Noor Aga (supra) andnumerous other cases, the severer the punishment for the offence, thestricter is the degree of proof. All the safeguards provided in the NDPSAct must be scrupulously followed.D

257. In Badku Jyoti Savant (supra), the Constitution Bench ofthis Court considered Section 21(2) of the Central Excise Act (thenknown as Central Excise and Salt Act) which provided “for this purposethe Central Excise Officer may exercise the same powers and shallbe subject to the same provisions as the officer-in-charge of policeEstation may exercise and is subject to under the Code of CriminalProcedure, 1898 (5 of 1898), when investigating cognizable case”.

258. The powers conferred on Central Excise Officer by Section21(2) of the Central Excise Act (then known as Central Excise and SaltAct) are identical to those of an officer under the NDPS Act, investedwith the powers of an Officer in Charge of police station for the purposeFof investigation of an offence under the NDPS Act.

259. Construing Section 21(2) in Badku Joti Savant (supra), theConstitution Bench held that Central Excise Officers do not have all thepowers of police officer qua investigation, which necessarily includesthe power to file report under Section 173 of the Cr.P.C.

260. The Constitution Bench judgment has been followed by twoConstitution Bench judgments that is Ramesh Chandra Mehta (supra)and Illias v. Collector of Customs (supra) referred to above and has

57 (1999) 6 SCC 17258 (1999) 6 SCC 172H59 (2006) 12 SCC 321

held the field for over 50 years. As observed above, in Raj KumarKarwal (supra), this Court made comparison of the power of CentralExcise Officer under Section 21(2) with those of officer under NDPSAct under Section 50 as also comparison of Section 36A(1)(d) withSection 190 of the Cr.P.C regarding the manner of taking cognizance ofoffences and found that the judgment of three Constitution Bencheswas binding on two Judge Bench.

261. It is obvious that no two statutes can be identical. Theremay be differences. If there were no differences, It would not benecessary to enact separate statute. The question is whether therewere any such differences which can logically lead to the conclusionthat the law as interpreted in those judgments would not apply to theNDPS Act.

262. For the reasons discussed, I am firmly of the view that thedifferences adverted to, do not make any difference to the law laid downin Badku Joti Savant (supra) followed and affirmed in RomeshChandra Mehta (supra) and Iliyas (supra) and subsequent decisions,which have held the field for over fifty years.

263. The proposition of law laid down by the Constitution Benchin the judgments referred to above and, in particular, Romesh ChandraMehta (supra) is that, the test to determine whether an officer is deemedto be police officer within the meaning of Section 25 of the EvidenceAct is, whether such officer has all the powers of police officer includingthe power to file report under Section 173 of the Cr.P.C.

264. In my view, the question of whether in reality or substancethere is any difference between complaint under Section 36A (1)(d) ofthe NDPS Act filed by an authorized officer of the Central Governmentor the State Government and police report filed under Section 173 ofthe Cr.P.C, raised by the Appellant cannot be decided by this Bench ofthree-Judges in view of three five-Judge Constitution Bench judgmentsreferred to above, which are binding on this Bench.

265. Similarly, the question of whether an investigating officerinvested with the powers of Officer in Charge of police station for thepurpose of investigation of an offence under special Act like the NDPSAct is empowered to file police report under Section 173 of the Cr.P.Ccannot also be reopened by this Bench, in view of five-Judge ConstitutionBench judgments referred to above.

266. The law which emerges from the Constitution Benchjudgments of the Supreme Court in Badku Joti Savant (supra), RomeshChandra Mehta (surpa() and Iilias (supra) is that, an officer can bedeemed to be police officer within the meaning of Section 25 of theEvidence Act:

A(i) if the officer has all the powers of police officer quainvestigation, which includes the power to file police report underSection 173 of the Cr.P.C.,

(ii) the power to file police report under Section 173 of Cr.P.C isan essential ingredient of the power of police officer and

(iii) the power to file police report under Section 173 of Cr.P.CBhas to be conferred by statute.

267. statute may expressly make Section 173 of the Cr.P.Capplicable to inquiries and investigations under that statute. However, inthe case of statute like the NDPS Act, where the provisions of theCr.P.C do not apply to any inquiry/investigation, except as provided therein,Cit cannot be held that the officer has all the powers of police officer tofile report under Section 173 of the Cr.P.C. The NDPS Act does noteven contain any provision for filing report in Court of law which isakin to police report under Section 173 of the Cr.P.C.

268. As per the well established norms of judicial discipline andpropriety, Bench of lesser strength cannot revisit the proposition laidDdown by at least three Constitution Benches, that an officer can bedeemed to be police officer within the meaning of Section 25 of theEvidence Act only if the officer is empowered to exercise all the powersof police officer including the power to file report under Section 173of the Cr.P.C.

E269. With the greatest of respect, Counsel appearing in support ofthe appeals have made general arguments with regard to the differencesbetween provisions of the Central Excise Act or the Customs Act withthe NDPS Act. However, they have not specifically shown how exactlythe powers of NDPS officers conducting an investigation of an offenceunder the NDPS Act are different from those of the Central ExciseFOfficers, Customs officers and/or Railway Protection Force Officersconducting an inquiry into an offence under the provisions of those Acts.

270. As observed above, the provisions of the Cr.P.C do not applyto an inquiry/investigation under the NDPS Act except to the limitedextent provided in Section 50(5) and 51. Section 173 of the Cr.P.C hasnot been made applicable to the NDPS Act.G

271. For the reasons discussed above, I am of the view that theJudgment of this Court in Raj Kumar Karwal (supra), which hasreaffirmed the verdict of three Constitution Benches does not requirereconsideration. Nor does Kanhaiyalal (supra) require reconsideration.

HKalpana K. Tripathy