It is remarkable, refreshing, rejuvenating and most relaxing to see that just recently on October 29, 2020, a three Judge Bench of the Apex Court comprising of Justice RF Nariman, Justice Indira Banerjee and Justice Navin Sinha in a latest, landmark and laudable judgment titled Tofan Singh vs State of Tamil Nadu in Criminal Appeal No. 152 of 2013 in exercise of its criminal appellate jurisdiction held by a 2:1 majority with Justice Indira Banerjee dissenting that officers of the Central and State agencies appointed under Narcotics Drugs and Psychotropic Substances Act are police officers and therefore the 'confessional' statements recorded by them under Section 67 are not admissible. The Bench was answering a reference made by a two Judge Bench in 2013 which had referred these issues to a larger bench. Very rightly so!

To start with, this notable judgment authored by Justice RF Nariman for himself and Justice Navin Sinha sets the ball rolling by first and foremost expressing in para 1 that, These Appeals and Special Leave Petitions arise by virtue of a reference order of a Division Bench of this Court reported as Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31. The facts in that appeal have been set out in that judgment in some detail, and need not be repeated by us. After hearing arguments from both sides, the Court recorded that the Appellant in Criminal Appeal No. 152 of 2013 had challenged his conviction primarily on three grounds, as follows:

24.1. The conviction is based solely on the purported confessional statement recorded under Section 67 of the NDPS Act which has no evidentiary value inasmuch as:

1. The statement was given to and recorded by an officer who is to be treated as police officer and is thus, hit by Section 25 of the Evidence Act.
2. No such confessional statement could be recorded under Section 67 of the NDPS Act. This provision empowers to call for information and not to record such confessional statements.
3. In any case, the said statement having been retracted, it could not have been the basis of conviction and could be used only to corroborate other evidence.

Quite remarkably, the Bench very rightly observes in para 27 that:
The NDPS Act is to be construed in the backdrop of Article 20(3) and Article 21, Parliament being aware of the fundamental rights of the citizen and the judgments of this Court interpreting them, as a result of which a delicate balance is maintained between the power of the State to maintain law and order, and the fundamental rights chapter which protects the liberty of the individual.

Several safeguards are thus contained in the NDPS Act, which is of an extremely drastic and draconian nature, as has been contended by the counsel for the Appellants before us. Also, the fundamental rights contained in Articles 20(3) and 21 are given pride of place in the Constitution. After the 42nd Amendment to the Constitution was done away with by the 44th Amendment, it is now provided that even in an Emergency, these rights cannot be suspended – see Article 359(1). The interpretation of a statute like the NDPS Act must needs be in conformity and in tune with the spirit of the broad fundamental right not to incriminate oneself, and the right to privacy, as has been found in the recent judgments of this Court.

Be it noted, it is then stated in para 29 that:
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 a confession made to any public officer, whatsoever his rank, cannot be relied upon against a person accused of any offence. Police officer is not defined in the Evidence Act or in any cognate criminal statute. As to what, therefore, police officer means, has been the subject matter of several decisions of this Court, which will be adverted to later.

For the time being, section 25 is to be viewed in contrast to section 24, given the situation in India of the use of torture and third degree measures. Unlike section 24, any confession made to a police officer cannot be used as evidence against a person accused of an offence, the voluntariness or otherwise of the confession being irrelevant – it is conclusively presumed by the legislature that all such confessions made to police officers are tainted with the vice of coercion.

To put things in perspective, it is then envisaged in para 67 that:
Under section 163(1) of the CrPC, no inducement, threat or promise, as has been mentioned in section 24 of the Evidence Act, can be made to extort such statement from a person; and finally, if a confession is to be recorded, it can only be recorded in the manner laid down in section 164 i.e. before a Magistrate, which statement is also to be recorded by audio-video electronic means in the presence of the Advocate of the person accused of an offence.

This confession can only be recorded after the Magistrate explains to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him – see section 164(2) of the CrPC. The Magistrate is then to make a memorandum at the foot of the record that he has, in fact, warned the person that he is not bound to make such confession, and that it may be used as evidence against him – see section 164(4) of the CrPC. Most importantly, the Magistrate is empowered to administer oath to the person whose statement is so recorded – see section 164(5) of the CrPC.

More significantly, it is then very rightly pointed out in para 68 that:
It would be remarkable that if a police officer, properly so-called, were to investigate an offence under the NDPS Act, all the safeguards contained in sections 161 to 164 of the CrPC would be available to the accused, but that if the same police officer or other designated officer under section 42 were to record confessional statements under section 67 of the NDPS Act, these safeguards would be thrown to the winds, as was admitted by Shri Lekhi in the course of his arguments. Even if any such anomaly were to arise on a strained construction of section 67 as contended for by Shri Lekhi, the alternative construction suggested by the Appellants, being in consonance with fundamental rights, alone would prevail, as section 67 would then have to be read down so as to conform to fundamental rights.

While continuing in the same vein, it is then pointed out in para 69 that:
Take, for example, an investigation conducted by the regular police force of a State qua a person trafficking in ganja. If the same person were to be apprehended with ganja on a subsequent occasion, this time not by the State police force but by other officers for the same or similar offence, the safeguards contained in sections 161-164 of the CrPC would apply insofar as the first incident is concerned, but would not apply to the subsequent incident.

This is because the second time, the investigation was not done by the State police force, but by other officers. The fact situation mentioned in the aforesaid example would demonstrate manifest arbitrariness in the working of the statute, leading to a situation, where, for the first incident, safeguards available under the CrPC come into play because it was investigated by the local State police, as opposed to officers other than the local police who investigated the second transaction.

Moving on, while citing another example, it is then pointed out in para 70 that:
Take another example. If X & Y are part of a drug syndicate, and X is apprehended in the State of Punjab by the local State police with a certain quantity of ganja, and Y is apprehended in the State of Maharashtra by officers other than the State police, again with a certain quantity of ganja which comes from the same source, the investigation by the State police in Punjab would be subject to safeguards contained in the CrPC, but the investigation into the ganja carried by Y to Maharashtra would be carried out without any such safeguards, owing to the fact that an officer other than the local police investigated into the offence. These anomalies are real and not imaginary, and if a statute is so read as to give rise to such anomalies, it would necessarily have to be struck down under Article 14 of the Constitution as being discriminatory and manifestly arbitrary.

What's more, it is then cogently and correctly pointed out in para 152 that:
Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.

It is worth mentioning here that it is then observed in para 153 that:
The judgment in Kanhaiyalal (supra) then goes on to follow Raj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us.

More to the point, it is worth noting that it is then very rightly pointed out in para 154 that:
On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga (supra) and Nirmal Singh Pehlwan v. Inspector, Customs (2011) 12 SCC 298 are correct in law.

Finally and far most importantly, the Bench then minces no words to point out aptly in para 155 that:
We answer the reference by stating:

1. That the officers who are invested with powers under section 53 of the NDPS Act are police officers within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
    
2. That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

We thus see that the applicant's petition stands dismissed as pointed out also in last para 156.

No doubt, what the majority judgment of two Judges comprising of Justice RF Nariman and Justice Navin Sinha of Apex Court have laid down in this leading case must be implemented in letter and spirit. There is no reason for not doing so! The Apex Court's majority judgment in this notable case has to be followed which clearly mandates that officers authorized to investigate NDPS cases are 'police officers' and confessional statements made to them are not admissible. There can be no denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.