[S. 27 Evidence Act] BSF Didn't Act As "Police Officer" When Recovering Arms & Ammunition From Accused During Search & Cordon Operation: J&K High Court

Clarifying the scope of "police officer" under the Evidence Act and its application to the BSF's powers under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 Justice Sanjeev Kumar observed,

“In such situation when an armed force of the Union exercising power under the Special Powers Act, 1990 in respect of disturbed area arrests a person or makes recovery of any arms and ammunition from him does not strictly act as a police officer, a term used in Section 27 of the Indian Evidence Act”.

Background of the Case:

Mohd. Jameel was convicted by the trial court for possessing arms and ammunition under the Arms Act. The prosecution's case relied on the recovery of these arms by the BSF during an operation, allegedly at Jameel's instance.

Jameel appealed the conviction contending the absence of independent witnesses during the recovery, the suspicious circumstances surrounding the operation, and the delay in documenting the arrest.

Jameel's counsel further contended that the recovery of weapons allegedly made at the instance of the appellant and from the possession of the appellant is not in terms of Section 27 of the Evidence Act and, therefore, vitiated in law.

The respondents, on the other hand, argued that the BSF, acting under the Special Powers Act in a disturbed area, is not a "police officer" under the Evidence Act. Their recovery powers are distinct and do not fall under the purview of Section 27.

Observations Of The Court:

Analysing the meaning of "police officer" under the Evidence Act Justice Kumar observed that the term is not restricted to officers of a police station but can extend to others vested with similar investigative powers under the Code of Criminal Procedure (CrPC).

However, the BSF's powers under the Special Powers Act are distinct, the court said while adding that these powers are limited to maintaining public order in disturbed areas and do not encompass investigation or prosecution of offenses.

“The person arrested as also the arms and ammunition, if any, seized are required to be made over by the armed force to the concerned police for registration of the FIR and taking up investigation. It is in these circumstances, it can safely be concluded that while effecting recovery of arms and ammunition from the appellant, the BSF's Special Operation Party headed by its Commandant did not act as a 'police officer' attracting the mischief of Section 27 of the Evidence Act”, the court recorded.

Spotlighting BSF's limited role in making recoveries and then handing them over to the police, the bench opined that they thus are not acting as investigating officers under the CrPC. Therefore, Section 27 of the Evidence Act, which restricts confessions made to police officers, is not applicable in this case and hence the recovery of arms from Jameel by the BSF was legal and could be relied upon by the prosecution, the court maintained.

In light of these findings, Jameel's appeal was dismissed and the trial court's conviction was upheld.

Case Title: Mohd. Jameel Vs The State of Jammu and Kashmir.

Citation: 2024 LiveLaw (JKL) 42

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