The Tofan Singh Reference — Part 1: Some Key Questions of Fact, and the Scheme of the NDPS Act

(This is the third post on the Blog discussing the reference in Tofan Singh, and the second one in an on-going series) 

The previous post introduced this issues in the Tofan Singh reference, that has been fixed for hearing this month by the Supreme Court. In this first substantive post, the focus is on getting the facts straight. The legal issues that are bound to be raised turn on some very specific facts, and so it is critical to be sure of just what had happened in Tofan Singh. After having set out the facts, the post will then tease the legal issues out in connection with these facts, to help in getting a better sense of the same. 

Sorting out the Facts

Tofan Singh was a criminal appeal in a narcotics case that reached the Supreme Court after two rounds of litigation, in both of which the appellant and other accused persons had lost. The prosecution had sought to prove that Tofan Singh and his associates had conspired to engage in drug trafficking (heroin, the choice of substance). 

The Supreme Court judgment extracts the facts at length. But, here's the thing: it does not extract the same facts as done by other courts which have heard the matter. The factual narration in the High Court judgment (reported as Badrilal Sharma v. State), differs from the Supreme Court version on some very important aspects. I've extracted these below: 

• An intelligence officer in the NCB, South Zone Unit (L.S. Aruldoss, PW-7) had received a tip-off about the trafficking activity, and he was in-charge of a team that intercepted the Ambassador car in which the appellant and some other accused persons were found. From this vehicle, the contraband was recovered, and the appellant and other accused persons were arrested by the raiding party. Note though, that the High Court judgment suggests that the arrests happened later, after the statements had been recorded.
• Statements of the accused persons were recorded under Section 67 of the NDPS Act by another Intelligence Officer who was part of the raiding party, and in his statement it was claimed that the appellant had confessed to the crime. Note, again, that the High Court judgment suggests that the statements of each accused were recorded by different officers]
• The case was then transferred to another officer, R. Murugan, for investigation, who filed a report under Section 173 of the Criminal Procedure Code 1973 [“Chargesheet”] upon completing the investigation. Critically, note that High Court judgment suggests that it was not R. Murugan, but instead one Sridhar (also an NCB Intelligence Officer), who conducted the investigation, and he eventually filed a Complaint and not a Chargesheet.

Despite the discrepancies, one can still ascertain that (i) Regular police cadre did not investigate the case and this was done by Intelligence Officers in the Narcotics Control Bureau [NCB], and; (ii) Statements of accused persons recorded were also not recorded by regular police officers but by these NCB officials. But it is imperative to have certainty about the third issue — whether the officers filed a Chargesheet, or a Complaint? In the current legal scheme governing the question of who is a police officer, one that has been constructed by judgments of the Supreme Court going back to the 1960s, it is this singular fact upon which the entire story turns, as the next post in the series will discuss.

The NDPS Act Structure — Taking Cognizance

The Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS Act] has a slightly peculiar statutory scheme which also contributes to the complications at hand. Take a look at Section 36(1)(d), which describes how the court can take cognizance of an offence:

"a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial." [Emphasis supplied]

 

This provision largely mirrors the scheme of Section 190, Cr.P.C., which lays down the general law and states that cognizance can be taken upon (a) "a complaint of facts which constitute the offence", or (b) "a police report of such facts". Note, that a police report refers to the report that is filed under Section 173, Cr.P.C. It is colloquially called a "Chargesheet" when the police recommends that a case be sent for trial. Whenever police officers investigate a case, the only instance in which this leads to filing a "Complaint" is where the offences alleged are "non-cognizable" in nature. In all other cases, the document that the police files at the end of an investigation is a "Police Report" as under Section 173 of the Code.

Through this scheme, the Supreme Court has concluded thus: A police officer is one who files a police report at the end of an investigation, and not a complaint. We will come back to this rule of thumb in detail later, but just keep it in mind for now, as this is crucial for the first issue posed in the Tofan Singh reference.

The NDPS Act Structure — Who Investigates

Section 36(1)(d) suggests that courts can take cognizance on either a police report, or a complaint filed by an officer so authorised. This prompts another question: Who can investigate a case under the NDPS Act, and ultimately file it before the court?

Chapter V of the NDPS Act, titled "Procedure", sets out the bulk of the investigative powers vested upon officers under this Act. In this regard, take a look at Section 53 of the Act:

53. Power to invest officers of certain departments with powers of an officer-in-charge of a police station.— 

(1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act. 

(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.

The "officer in charge of a police station" is a technical term defined in the Cr.P.C., but reading the definition alone doesn't help understanding its import and the power that it confers, for which one must go through the Cr.P.C. as a whole. Basically, this is the officer upon substantive powers of arrest, search, etc. are vested through the Code. And, under Section 156 of the Cr.P.C., it is this officer who is empowered to investigate into a cognizable case. 

Section 53 is a tool of convenience. Rather than selectively choose powers to confer upon these other officers, through this clause the entire gamut of police powers gets vested upon the specific officers / classes of officers who are so notified in the official gazette. On top of which, one finds that Chapter V of the NDPS Act modifies some of these powers — such as search and seizure — from their generic form as found within the Cr.P.C.    

What we have then is three potential classes of persons who can investigate a case under the NDPS Act: (i) Ordinary police officers, whose powers are in no way taken away under the Act; (ii) Officers empowered under Section 53 of the NDPS Act; (iii) Other government officials, who are not notified under Section 53. For the first class of persons, there is no doubt that they will file a police report in court upon concluding  their investigation. Similarly, for the last category of officers, there is no doubt that they will file a Complaint, as a police report can only be filed by a police officer.

Which then leaves us with the middle category. Will an officer invested with powers of an officer in-charge of a police station, file a "Police Report" upon concluding the investigation, or a "Complaint"? Filing a police report would be to take the deeming fiction under Section 53 of the NDPS Act to its logical conclusion, perhaps. But then again, can filing a "Police Report" be called a power for it to be invested through Section 53? 

The NDPS Act Structure — Statements during Investigation

We now know that Section 53 of the NDPS Act confers the entire gamut of police powers detailed under the Cr.P.C. upon specific officers / classes of officers, and it is the status of these officers — whether they are "police officers" — which is the focus of the first issue in the Tofan Singh reference. 

At the same time, the NDPS Act also contains provisions which modify these police powers to a certain extent. In this regard, consider the power to record statements, which is provided under Section 161 of the Cr.P.C., which would be conferred upon the empowered officer. These general powers coexist with Section 67 of the NDPS Act, which is at the heart of the second issue in the Tofan Singh reference.

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.

Note that: (i) Section 67 does not confer any power to record statements on oath; (ii) It does not render the questioning to be a "judicial proceeding"; (iii) It does not contain any clause requiring that the person giving the statement is to be warned about its consequences, and (iv) Section 67 is not complemented by a clause like Section 163 of the Cr.P.C., which prohibits officers from coercing / inducing persons to give statements. 

On my reading of the NDPS Act, this "officer referred to in Section 42" referred to in Section 67, will often be one who is empowered under Section 53 of the NDPS Act, in which case Section 67 might seem rather superfluous as these officers already have the power under Section 161 Cr.P.C.

Or, maybe not. Take a look at Section 53-A of the NDPS Act:

53A. Relevancy of statements under certain circumstances.— 

(1) A statement made and signed by a person before any officer empowered under section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,— 

.... 

(b) when the person who made the statement is examined as a witness in the case before the court and the court is of the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. ...

This clause brings about two big changes to the ordinary powers of a police officer to record statements: 

• First, the powers of a police officer do not extend to taking signed statements — this is explicitly barred by Section 162(1) of the Cr.P.C. However, Section 53-A(1) refers to a statement "made and signed" before the officer empowered under Section 53, which clearly lifts that bar, and indirectly tells us that these signed statements will end up being recorded under Section 67 instead. 
• Second, the use of statements recorded under Section 161, Cr.P.C. is severely limited by Section 162, which prohibits statements given to police officers from being admitted in evidence for anything other than contradicting a witness. But Section 53-A(1)(b) throws this out the window, and permits statements made to be treated as substantive evidence if the court deems it necessary "in the interests of justice". 

I'll return to Section 53-A when discussing the issue of whether or not Section 67 can be the source of recording confessions, which is the second issue posed in the Tofan Singh reference (Curiously, the 2013 judgment does not mention Section 53-A anywhere).

Conclusion and Next Post

This post sought to give some context for the reference in Tofan Singh. It showed that the NDPS Act framework is complex, and the ultimate issues before the Bench are very specific to this statutory context. At the same time, the post also flagged certain factual inconsistencies that are material in nature as those findings of fact will determine the application of the legal principles in question. It is to these legal principles that the next two posts will turn. First, the first issue of whether Section 53 officers are "police officers" will be considered, and then we will look at a related issue of whether Section 67 can be the source of confessions. Finally, there will be some concluding critical thoughts.