Explainer: Why Supreme Court Held That Officers Designated U/s 53 NDPS Act Are 'Police Officers' ?

In an important judgment delivered on Thursday (29th October 2020), the Supreme Court (by 2:1 majority) has held 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. (ii) 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. This piece explains the reasons given in the judgment authored by Justice Rohinton Fali Nariman. In Tofan Singh, the three judge bench was called upon to answer two legal issues: 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. Relevant Statutory ProvisionsSection 67 deals with the power to call for information. It reads thus: Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act,— (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case. [ The officers referred to in this Section are appointed under Section 53 by the Central or State Government which is given the power to invest officers of certain departments with powers of an officer-in-charge of a police station.] Section 25 of the Evidence Act states that no confession made to a police-office, shall be proved as against a person accused of any offence. This is how the question whether the officers or class of officers designated under Section 53 are police officers or not, becomes relevant.Survey of PrecedentsTo answer this, the bench referred to State of Punjab v. Barkat Ram (1962) 3 SCR 338 in which the Supreme Court, by a 2:1 majority, held that a Customs Officer under the Land Customs Act, 1924 is not a "police officer" within the meaning of section 25 of the Evidence Act. The court then referred to Raja Ram Jaiswal v. State of Bihar (1964) 2 SCR 752; which held that a confession made to an Excise Inspector under the Bihar and Orissa Excise Act of 1915, would be a confession made to a police officer for the purpose of section 25 of the Evidence Act. The bench also made reference to the following judgments which discusses the above two judgments: Badku Joti Savant v. State of Mysore (1966) 3 SCR 698; Romesh Chandra Mehta v. State of West Bengal (1969) 2 SCR 461; Illias v. Collector of Customs, Madras (1969) 2 SCR 613; and Balkishan A. Devidayal v. State of Maharashtra (1980) 4 SCC 600. It observed:"The golden thread running through all these decisions – some of these being decisions of five-Judge Benches which are binding upon us – beginning with Barkat Ram (supra), is that where limited powers of investigation are given to officers primarily or predominantly for some purpose other than the prevention and detection of crime, such persons cannot be said to be police officers under section 25 of the Evidence Act. What must be remembered is the discussion in Barkat Ram (supra) that a "police officer" does not have to be a police officer in the narrow sense of being a person who is a police officer so designated attached to a police station. The broad view has been accepted, and never dissented from, in all the aforesaid judgments, namely, that where a person who is not a police officer properly so-called is invested with all powers of investigation, which culminates in the filing of a police report, such officers can be said to be police officers within the meaning of section 25 of the Evidence Act, as when they prevent and detect crime, they are in a position to extort confessions, and thus are able to achieve their object through a shortcut method of extracting involuntary confessions."Overruling of Raj Kumar Karwal & KanhaiyalalThe division bench which referred these issues to the three judge bench, in fact, did so while doubting the correctness of Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 and Kanhaiyalal v. Union of India (2008) 4 SCC 668. Both of these judgments had held that the officers designated under Section 53 are not police officers.In Raj Kumar Karwal, the court had rejected the contention that an officer appointed under Section 53 of the Act, other than a police officer, is ...

Explainer: Why Supreme Court Held That Officers Designated U/s 53 NDPS Act Are 'Police Officers' ?

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