Thursday, January 17, 2019

The Reference in Tofan Singh's case - What's at Stake?

In 2013, a Division bench passed the judgment in Tofan Singh v. State of Tamil Nadu [(2013) 16 SCC 31], an appeal against conviction for offences under the Narcotics, Drugs and Psychotropic Substances Act 1985 [NDPS Act]. While suspending the sentence of the appellant, the bench referred the case to the Chief Justice for constituting a bench of higher strength to resolve conflicts on two legal issues:

  1. Is the officer recording a statement under Section 67 of the NDPS Act a "police officer" for the purposes of Section 25 of the Indian Evidence Act 1872 [IEA]?
  2. Can the statement recorded under Section 67 of the NDPS Act be treated as a confession, even if the officer recording it is not treated as a police officer?

The case was recently listed before a three Justices' Bench and has been heard on four occasions this month, making a judgment likely in the near future. While the hearings have escaped media attention almost entirely, it does not take away from the fact that the issues being decided are very critical for not only cases under the NDPS Act but also criminal proceedings more generally. In this post, I lay out just what is at stake, and give my prediction for what the Three Justices' Bench might do. 

The Issues 

Section 67 allows an authorised officer to record statements of any person to determine if a crime under the NDPS Act has been committed. It includes questioning persons arrested on such suspicions as well, and these statements can be used in evidence. In permitting the use of statements recorded during investigations, Section 67 departs from regular Indian criminal procedure. This can be found in Chapter XII of the Criminal Procedure Code 1973 [Cr.P.C.], that details the powers and duties of police officers during investigations. Sections 161 and 162 of the Cr.P.C. do permit police to record statements, but do not permit their use at trial (except to contradict a witness). 

Though significant, this issue is not before the Court in Tofan Singh. Instead, the issues mentioned above stem from judicial interpretations of the phrase “police officer”: whether or not it includes officers from other services invested with similar powers. Why does it matter? Because confessional statements made to a "police officer" are inadmissible under Section 25 IEA, and if those officers are considered to be outside its scope, then the confessions recorded by these officers become admissible evidence. 

The lasting judicial answer to this question is found in the Constitution Bench decision in Badku Joti Savant [AIR 1966 SC 1746]. It gave a thumb-rule to decide the matter: if an officer can file a Final Report under Section 173(2) of the Cr.P.C. (commonly called a Chargesheet), then it is a “police officer”. This narrow reading has meant that the confessional statements made to officers under the Customs Act 1962 and the Prevention of Money Laundering Act 2002 [PMLA], among others, are all admissible. [For more on this controversy, see here.]   

Now, read the NDPS Act with this lens. Section 36-A says that a case will begin on a chargesheet or a complaint by an "authorised officer". So if we apply the thumb-rule, then since no chargesheet is being filed then these officers are not "police officers". But things are not so simple. The NDPS Act is different, because here, police and authorised officers have coequal powers to investigate, unlike the Customs Act or PMLA where the police have no role to play. Further, the statutory text has subtle differences. The NDPS Act, through Section 53, allows a Government to invest officers with powers equal to those of an Officer in-charge of a Police Station under the Cr.P.C. "for investigation" of offences. A similar provision is absent from the Customs Act or PMLA. Section 67 of the NDPS Act is also different from analogous provisions in the Customs Act (Section 108), and PMLA (Section 50); the latter require making statements under penalty of perjury, which is absent from the NDPS Act context.  

Why was a referral was required in Tofan Singh? In that case, the Division Bench indicated that the authorised officers recording the statement under Section 67 should be “police officers”, and use of any confessional statements recorded by them should be hit by Section 25 IEA. The problem was that two prior decisions by Division Benches had held otherwise: Raj Kumar Karwal [AIR 1991 SC 45] held that the powers under Section 53 NDPS Act are insufficient to make the officer a “police officer”, and Kanhaiyalal [(2008) 4 SCC 668] relied on this view to allow confessions recorded under Section 67 into evidence. Thus, the controversy had to be placed before a bench of higher strength.

The Possibilities in Referral

It is critical that the referral is before a Three Justices’ Bench. This means that the thumb rule of how to identify a “police officer” cannot be re-examined in the Tofan Singh hearings, as that was the gift of a Five Justices’ Bench. Unless, of course, the present bench finds a novel route out of that quandary. This means that the hearings in Tofan Singh should play out within the limited context of the NDPS Act, leaving similar powers invested under the Customs Act, PMLA etc untouched. 

How might the hearings turn out? I have not been able to attend court, nor have I come across live tweets, but I would wager that if the Bench is inclined to retain the existing position then it would want to diminish the statutory differences and locate the NDPS within the existing law. Whereas, if it is inclined to change the law, it will focus on the subtle differences flagged above that make the NDPS Act regime unique. I would argue that the latter option the better choice. Both legally, and also because it fits in with a trend over the past two decades of heightened procedural protection for NDPS Act cases. 

The points of difference — that Section 53 NDPS Act invokes a police officer, and Section 67 does not require sworn statements — are not trivial, and the earlier cases that ignored them not very well reasoned. Raj Kumar Karwal held that Section 53 was insufficient because of Section 36-A requiring that the authorised officer prosecute cases via a complaint. Kanhaiyalal simply extended this to Section 67 as well. This approach is not certainly one way to read Section 53 and Section 36-A of the NDPS Act together, but it is incorrect.

Looking only at the complaint or chargesheet to identify the procedure is far too narrow an approach. Instead, what must be looked at is the entire process from the start to finish. This highlights how the NDPS Act is different from the Customs Act or PMLA: there, a prosecution is not the only inevitable outcome and imagine resolving cases through administrative proceedings. For this reason, those sets of procedures are not termed investigations. On the other hand, Section 53 clearly confers powers for "investigating" cases. Looking only at the statutory label given to the end-product of this process will mean privileging form over substance.  

These arguments carry much more bite in the NDPS context because of the other fundamental point of difference: none of the other laws confer powers on both the police and other agencies. Thus, here the arbitrariness is manifest within the same statutory framework. How can investigations led by one agency end up with more evidence and less procedural protections for accused persons than another, for prosecuting the same crime. It should amount to violating Article 14, given that the NDPS Act has no process for separating the kinds of cases that are investigated by police officers or other officers.       
Which brings me to the final point, of a visible trend for heightened judicial protection to accused persons in NDPS Act cases. Unlike regular Indian criminal procedure, here, the judiciary has held that violations from procedural norms carry serious consequences for the prosecution. Two instances stand out: evidence obtained contrary to statutory norms under Section 50 is inadmissible, and investigation by the same officer who lodged the case can vitiate trial. Allowing confessional statements to be rendered admissible under Section 67 would create a strange tension within the legal framework, and belittle the other safeguards that the judiciary has fought hard to create and protect. 

The hearings in Tofan Singh should conclude within the month of January 2019, making a judgment likely before the retirement of Sikri, J., who was the author of the decision that started this process. It is possible that the Three Justices' Bench upholds the position prior to Tofan Singh entirely and says that confessions under Section 67 shall remain admissible, or try and carve out some exceptions to the general norms laid down by the Constitution Bench in Badku Joti Savant to perhaps exclude the use of confessional statements recorded under Section 67. I have suggested that the latter course is more likely, and like everyone else, await to find out how the issues are ultimately resolved by the Bench. 

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