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Whether confessional statement under section 67 NDPS Act is admissible in evidence?

16TH September, 1985..... the date when the Indian legislature enacted an act in order to make stringent provisions for the control of operations relating to narcotic drugs and psychotropic substances, to implement provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and to provide for the forfeiture of property derived from, or used in illicit traffic in narcotic drugs and psychotropic substances. The name of the act is not oblivious to the legal practitioners.

Yes, THE NARCOTIC DRUGS and PSYCHOTROPIC SUBSTANCES ACT, 1985. Till date various amendments have been incorporated in the act in order to improve efficacy and achieve the object of the act. In this article, we will not discuss and touch all the provisions of the said act, but we will delve into one of the most vexed questions of law involved in the NDPS cases i.e. whether the powers given to empowered officer u/s 67 NDPS Act are akin and in pari materia with the powers u/s 161 Code of Criminal Procedure (CrPC)? Whether the empowered officer can record confession of the accused u/s 67 NDPS Act? Whether the confessional statement made by accused before officer empowered u/s 42 NDPS Act is admissible in evidence? If yes, whether it can be used against himself and co- accused? Whether empowered officers under NDPS Act are police officers?

Before proceeding further, we must understand the language embodied in section 67. Section 67 reads as under:

"67. Power to call for information, etc. - 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."

From the perusal of the section 67 in harmony with the entire provisions of the act, it is manifest that there is no power authorised to the empowered officer to record confession of the accused and if recorded, what is its admissibility. Unlike Terrorist and Disruptive Activities act, 1987, the NDPS Act is utterly silent about the recording of confession or making such confession admissible in the eyes of law. But, said section 67(c) empowers the officer authorised u/s 42 to examine any person acquainted with the facts and circumstances of the case. Now, does the word 'any person' connotes the expression accused also? Why the legislature inserted word 'enquiry' in section 67 rather than the word 'investigation'?

The NDPS Act nowhere defines the word 'enquiry'. The dictionary meaning of word enquiry is, an act of asking information, an official investigation. But, the officer empowered u/s 42 NDPS Act has no power to investigate the offences under NDPS Act. Officers empowered u/s 42 are only authorised to enter and search the place, seize the NDPS and arrest the person believed to have committed the offence under NDPS Act. Such power of investigation of an offence can only be exercised by an officer-in-charge of a police station within whose local jurisdiction the offence is committed (see sec. 156 CrPC). Nevertheless, section 53 of the NDPS Act empowers the Central or State Govt. to invest powers of an officer-in-charge of police station for investigation of offences under NDPS Act, by issuing a notification in Official Gazette. If such officer is not appointed by such govt., then, such powers of investigation has to be exercised by officer-in-charge of local police station.

From the above discussion, it can be concluded that the word 'enquiry' used in section 67 NDPS Act for the situation where enquiry is required before conducting the proceedings enshrined in section 42 i.e. entry, search, seizure and arrest, not investigation. Such an argument can be fortified with the provision of section 52(3), which mandatory requires the officer u/s 42 to take the person and article seized to officer-in-charge of nearest police station, or to the officer empowered u/s 53. Therefore, the answer is that the word 'any person' used in section 67 cannot be in any case contemplated to include accused person as before the said proceedings u/s 42 by the empowered officer the person can never be in custody of such officer. Moreover, the legislature used the word 'enquiry' in the said section rather than word 'investigation', which also showcases the intention of legislature to limit the use of section to enquiry for section 42 only, not for investigation of offences under the act. This leads to the answer of another question that power u/s 67 is not akin to power u/s 161 CrPC as the power u/s 161 CrPC can be used during the course of investigation by officer-in-charge of police station, whereas, the power u/s 67 NDPS Act can be exercised only officer empowered u/s 42 NDPS Act with a view to achieve object and purpose of section 42 only, not otherwise. It implies that no confession u/s 67 can be recorded by an empowered officer u/s 42. However, any confession, if any, under NDPS Act can be recorded only by an officer-in-charge of police station conducting investigation or by an officer appointed in this behalf u/s 53 of the said Act.

Now, the next conundrum is whether the confession recorded under NDPS Act by the officer-in-charge of police station or officer appointed u/s 53 is admissible in the eyes law? As far as the question of confession before officer-in-charge of police station is concerned, the section 25 of the Indian Evidence Act is very much clear on this aspect. Section 25 of the Indian Evidence Act reads as:

"25. Confession to police officer not to be proved. - No confession made to a police officer, shall be proved as against a person accused of any offence."

Meaning thereby, no confession made before officer-in-charge of police station investigating offence under NDPS Act is admissible and hence, cannot be relied upon as officer-in-charge of police station is a police officer. But, whether officer invested with powers of investigation u/s 53 NDPS Act is a police officer for the application of section 25 evidence act? This question was first answered by Hon'ble Supreme Court in the case Raj Kumar Karwal vs Union of India, 1990(1) R.C.R. (Criminal) 719, wherein, it was held that departmental officers given powers of police u/s 53 NDPS Act are not police officer and hence, confession made before them is not hit by section 25 and therefore, admissible. Thereafter, this question was again came for consideration before Hon'ble Supreme Court in Kanhaiyalal vs Union of India, 2008(1) R.C.R. (Criminal) 610, where the Hon'ble Apex Court relying upon decision of Raj Kumar Karwal (supra) held that confession made before officer of NCB is admissible in evidence and the said officer is not a police officer within meaning of section 25 of Evidence Act. But, in the year 2013, the Hon'ble Apex Court doubted the correctness of ratio of Kanhaiyalal (supra) case in Tofan Singh vs State of Tamil Nadu, 2013(4) R.C.R. (Criminal) 631 and refer the matter to larger bench saying that a re-look is required into case of Kanhaiyala (supra) for reconsideration of the issue as to whether the officer investigating the matter under NDPS Act would qualify as police officer or not.

Well, by the time the matter is pending before the larger bench of the Hon'ble Supreme Court, the courts should refrain themselves from adopting the ratio of law laid down in Raj Kumar Karwal (supra) and Kanhaiyalal (supra) since the law laid down in both the said cases is incorrect because the decision in the said cases was formed without discussing the object of NDPS Act, the provisions of NDPS Act, especially section 42, 53 and 67, and the object of section 25 evidence act. Moreover, it can be noted down here that at the time of framing evidence act, the legislature must not have even contemplated that such a situation of investing powers of police to departmental officers (see S.53) would arise in the future and not even so, it is basic principle of law that legislature is always presumed to have known all the existing laws and if the legislature intends to not to include departmental officers within the purview of section 25 evidence act, it would have amended the section 25 of the said act too. Furthermore, unlike TADA Act, no express provision has been incorporated in the NDPS Act to make the confession of accused admissible. This implies that the legislature never intended to make confession under NDPS Act admissible.

EPILOGUE

The following conclusion can be deduced from the aforesaid deliberation:

(1) That under the NDPS Act, no confession can be recorded u/s 67 since the no such power has been invested with the empowered officer u/s 67 either explicitly or impliedly.

(2) That confession of an accused, under NDPS Act, can only be recorded by an officer-in-charge of concerned police station conducting investigation or the officer empowered by the government u/s 53 NDPS Act.

(3) The office empowered to investigate u/s 53 are also police officers within the meaning of section 25 Evidence Act.

(4) That confession recorded by officer empowered to investigate u/s 53 can never be admissible in the eyes of law, unless there is such express provision in the NDPS Act, as it would be against the policy and object of section 25 Evidence Act.

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