NDPS Act : Are 'Confessional' Statements Given Under Section 67 Admissible In Evidence?

Recently, a Special NDPS Court has rejected the bail application of Aryan Khan by holding that he was in "conscious possession" of the drugs found with Accused No.2- Arbaaz Merchant. The order held that -"in their voluntary statements both of them disclosed that they were possessing said substance for their consumption and for enjoyment. Thus, all these things show that accused no.1 was having knowledge of the contraband concealed by accused no.1 in his shoes."Previously, we had explained what 'conscious possession' under the NDPS Act entails. In this piece we will look at the question of voluntary statements being used as evidence against accused under the NDPS Act.Police Officers, Voluntary Statements and Evidence Act. S.42 of the NDPS Act gives certain government officials the right to enter premises, search, seize and arrest without a warrant. S.53 allows the Central and State governments to invest certain government officials with the powers of an officer-in-charge of a police station for the purpose of investigating offences under this Act. S.67 of this Act allows the same officer to collect information from or examine any person to determine whether the Act has been violated. It is under this S.67 that officers of NCB record statements from the accused. The order of the Special NDPS Court has brought back into sharp focus the question of whether statements given by the accused under S.67 of the NDPS Act have any evidentiary value and whether they can be relied upon to deny an application for bail. Whether statements recorded under S.67 of the NDPS Act can be treated as confessional statements depends in turn on the question whether officers of NCB are 'police officers'? Why does it matter whether these officers are treated as 'police officers' formally? It is because S.25 of the Indian Evidence Act, 1872 which states that no confessions made to a "police officer" shall be used to prove against an accused. So, if officers of the NCB are police officers, then a confession recorded by them would be hit by the prohibition under S.25 of the Evidence Act and rendered inadmissible from the evidentiary perspective. So, the evidentiary value of statements under S.67 of the NDPS Act boils down to the question whether officers under NDPS Act are 'police officers'. Whether Empowered Officers Under NDPS Act Are Police Officers Or NotThe question of who a 'police officer' has been a vexatious issue that has been a subject of a lot of litigation because there is no single, neat definition under any statute. Over the years, the Apex court has decided the question on a case-by-case basis keeping in mind the special statutes in question- Central Excise and Salt Act, Railway protection laws, Prevention of Money Laundering Act, TADA, Narcotics Drugs and Psychotropic Substances Act, among others. Often, even for a given statute, different benches of the Supreme Court of coordinate strength have swung like a pendulum in deciding this question. In Raja Ram Jaiswal v State of Bihar, the Apex court by 2:1 majority held that Excise officers under the Bihar and Orissa Excise Act, 1915 were held to be 'police officers' and thus confessions statements made to them would be inadmissible in light of S.25 of the Evidence Act. In Badku Joti Savant v State of Mysore, a constitution bench of the Supreme Court held that central excise officers under the Central Excise and Salt Act, 1944 were not police officers. In Raj Kumar Karwal v Union of India, the Apex court deciding the question of police officer in the context of the Narcotics Drugs and Psychotropic Substances Act, 1985 held that officers of Department of Revenue Intelligence could not be considered police officers for the purpose of S.25 of the Evidence Act. In Kanhaiyalal v Union of India, the ratio of Karwal was extended to officers regarding confessions by virtue of powers under S.67 of the NDPS Act as well. This judicial see-saw continued with a two-judge bench in Noor Aga v State of Punjab dissenting from the view taken by Kainhaiyalal and holding that officers of NCB were 'police officers'. With a view to putting an end to this judicial see-saw on the question of whether officers under the NDPS Act are 'police officers', in 2013, a reference was made by a two judge bench expressing its doubt of the correctness of the dictum laid in Kanhaiyalal v Union of India. The reference to a larger bench was on the questions- 1) Whether the officer investigating the matter under the NDPS Act would qualify as a police officer or not? 2) Whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as a confessional statement or not, even if the officer is not treated as a police officer? Thus, a larger bench of 3 judges- in Tofan Singh v State of Tamil Nadu was called upon to finally decide the issue of whether officers under NDPS Act were 'police officers' within the meaning of S.25 of the Evidence Act. Tofan Singh v State of Tamil Nadu: In...

NDPS Act : Are 'Confessional' Statements Given Under Section 67 Admissible In Evidence?

Sneha Rao

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