(This post has been co-authored with Shashwat Bhutani and Rishabh Narain Singh)
This blog has introduced the scope of the reference in Tofan Singh and the statutory context of the NDPS Act. Which means that we can straightaway jump in to discuss the first question: Whether an officer who investigates a case under the NDPS Act is a "police officer", for purposes of Section 25 of the Indian Evidence Act, 1872. This provision, readers may recall, is the statutory prohibition upon using confessions against accused persons at trial. Essentially, then, if the officer investigating an NDPS case is a "police officer", then any confessions / statements made to her would be rendered useless from a trial perspective.
This post will tease out the legal position that led to the Tofan Singh reference, and then argue for what the authors think is the correct approach to follow.
Revisiting the Classics and "Officer in-Charge of a Police Station".
It might come as a surprise that there is no controlling definition of the phrase "police officer" in Indian law, especially considering the significance of the evidentiary bar mentioned above. But, alas, such is the case. However, courts have filled in this gap, and today it would seem that there is a fairly settled test to decide who can be called a "police officer".
Rather than adopt a "functional" approach, of the kinds on display in, say, the Three Justices' Bench decision in State of Punjab v. Barkat Ram [AIR 1962 SC 276] [whether Customs Officers under the Sea Customs Act, 1878 and / or Land Customs Act 1924, are “police officers” within the meaning of Section 25, and finding that they are not], and Raja Ram Jaiswal v. State of Bihar [AIR 1964 SC 828] [Officer under the Bihar and Orissa Excise Act 1915 is a "police officer"] both of which looked at the purpose for investing officers with coercive powers, the Supreme Court quickly turned towards endorsing a more formulaic approach. A Constitution Bench of the Supreme Court in Badku Joti Savant v. State of Mysore [AIR 1966 SC 1746], was concerned with whether an officer under the Central Excises and Salt Act 1944 would be a "police officer". The Court proferred a simple test to resolve the matter: a police officer is one who can file a police report / chargesheet; if not, then you aren't dealing with a police officer. This decision by Five Justices continues to control the field, and has been followed by subsequent benches (including Constitution Benches), in cases such as Romesh Chandra Mehta v. State of West Bengal [AIR 1970 SC 940] and Illias v. Collector of Customs, Madras [AIR 1970 SC 1065].
Rather than belabouring the point about this "Chargesheet Test", let us instead turn our gaze upon what lay behind those conclusions arrived at in Badku Joti Savant. In that case, provisions of the Central Excises and Salt Act were in issue, and the investigative / coercive powers of a Central Excise Officer were being considered. Section 19 dictated that any person arrested under the Act had to be forwarded forthwith to a Magistrate or an officer in-charge of the nearest police station. Together with this went Section 21, which said that:
"(1) When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him.
(2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police-station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case: ..." [Emphasis Supplied]
For a limited purpose, then, a Central Excise Officer was conferred the same powers as the officer in-charge of a police station. This deeming fiction was used as the prong to argue that the Officer had to be treated as a police officer. And, as we know, the Court in Badku Joti Savant disagreed with this claim. It held that the power under Section 21 was limited [21(2) starts with "For this purpose"], and did not confer all powers of a police officer upon the Excise Officer, and in this context made its observations about the Act not conferring powers of filing the report under Section 173, Cr.P.C.
Towards this end, the Court also repeatedly distinguished these facts from those before it in Raja Ram Jaiswal, which was referred to above. The Court noted in Badku Joti Savant, that "In any case unlike the provisions of s.78(3) of the Bihar and Orissa Excise Act, 1915, s. 21(2) of the [1944 Act] does not say that the Central Excise Officer shall be deemed to be an officer-in-charge of a police station and the area under his charge shall be deemed to be a police station. All that s.21 does is to give him certain powers to aid him in his enquiry. [Emphasis supplied]" Thus, the Court implied that the findings in Raja Ram Jaiswal were correct, due to that statutory context. Let's therefore take a look at the kind of clause which the Supreme Court held could deem other officers to be police officers, even for purposes of Section 25 of the Evidence Act.
"(1) Any Collector, or any Excise Officer empowered under section 77, sub-section (2), may after recording in writing his reason for suspecting the commission of an offence which he is empowered to investigate, exercise —
(a) any of the powers conferred upon a Police Officer making an investigation, or upon an officer in charge of a police-station, by sections 160 to 171 of the Code of Criminal Procedure, 1898 (5 of 1898), and
...
(3) For the purposes of section 156 of the Code of Criminal Procedure, 1898 (5 of 1898) the area to which an Excise Officer empowered under section 77, sub-section (2), is appointed shall be deemed to be a police-station, and such officer shall be deemed to be the officer in charge of such station.
(4) As soon as an investigation by a Collector or by an Excise Officer empowered under section 77, sub-section (2), has been completed, if it appears that there is sufficient evidence to justify the forwarding of the accused to a Magistrate, the investigating officer, unless he proceeds under sub-section (2) of this section or under section 68 of this Act, shall submit a report which shall, for the purposes of section 190 of the Code of Criminal Procedure, 1898 (5 of 1898) be deemed to be a Police-report to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on Police-reports." [Emphasis supplied]
The Court in Badku Joti Savant referred explicitly to Section 78(3) to distinguish this statute from the 1944 Act, to suggest that there were no limits placed upon the deeming fiction created under Section 78. At the same time, the Court surprisingly did not refer to Section 78(4) and its very specific terms about deeming the report to be a police report, which is what it seemingly took inspiration from in its ultimate holding.
The NDPS Act Cases
The NDPS Act came in 1985, many years after the Chargesheet test in Badku Joti Savant. We have seen the statutory context of the NDPS Act in detail in the previous post — powers to investigate offences may also be conferred upon special officers under Section 53, and these officers may be conferred with powers equivalent to that of an officer-in-charge of a police station to hold the investigation.
The question of whether an Investigating officer empowered under Section 53, is a police officer or not came before the Supreme Court for the first time in the case of Raj Kumar Karwal v. Union of India [AIR 1991 SC 45] [Case investigated by an officer of the Directorate of Revenue Intelligence empowered under Section 25]. The Court held that the legislature has drawn a distinction in the manner of initiating a case by a police officer and by an officer of central or state government, by virtue of Section 36-A (1)(d) of the Act. According to the Court, Section 36-A (1)(d), allows officers of the central or state government to only file a complaint. On the other hand, a police officer would file a charge-sheet to initiate such proceeding. Thus, these empowered officers of central or state government were not police officers as they do not fulfil the criteria laid down in Badku Joti Savant.
Raj Kumar Karwal was also followed by the Court in the case of Kanhaiyalal v. Union of India [(2008) 4 SCC 668]. However, in Noor Aga v. State of Punjab [2008 (9) SCALE 681] a Division Bench of the Supreme Court digressed from these earlier decisions. It stated that Section 53 of the Act empowers the customs officers with the powers of the Station House Officers and officers invested with these powers by reason of a special statute in terms of sub-section (2) of Section 53, should be considered as police officers. However, soon after this, in Ram Singh v. Central Bureau of Narcotics [(2011) 11 SCC 347] the Court went back to the position in Raj Kumar Karwal and stated that Section 53 alone would not be sufficient to hold such officers as police officers as it does not confer the power of filing a charge sheet. However, the pendulum swung back again, when in Nirmal Singh Pehlwan v. Inspector, Customs [(2011) 12 SCC 298] as the bench in this case doubted the correctness of the holding in Kanhaiyalal and that line of judgments.
The result of all this confusion? A reference in Tofan Singh.
Why S. 53 Officers Must be Treated as "Police Officers"
The dichotomy within Section 36-A(1)(d), where it refers to both complaints and police reports, is what has led previous decisions to conclude that the officers of the central / state government which might be empowered under Section 53 are those who can only file a complaint. This, in our view, is an incorrect conclusion to draw.
The officers appointed under Section 53 fall within a larger subset of officers, as mentioned under Sections 5 & 7 of the Act. Section 5 defines the “officers of Central Government” and empowers the Central Government to appoint the Narcotics Commissioner as well as other officers for the purposes of this Act. Similarly, Section 7 defines the “officers of State Government” and empowers the state governments to appoint officers to carry out the purposes of the Act. The definitions given under both the sections are general and inclusive as they do not define which officers and of what designation will be appointed.
Basically, the sensible way to read Section 36-A(1)(d) is this: while officers who are not empowered under Section 53 end up filing complaints, the report filed by empowered officers — who have been conferred with powers of an officer in-charge of a police station — should be seen as as a Police Report to give full effect to the deeming fiction created under Section 53. Not only does this degree of nuance help maintain the dichotomy under Section 36-A(1)(d), it also keeps the law in line with the tests laid out in the earlier Supreme Court decisions that we discussed above. If we look at the language of Section 53, it is not at all like that found in Section 21 of the Central Excises and Salt Act of 1944 inasmuch as there is no express limitation conferred upon the conferral of powers. Instead, Section 53 looks a lot more like Section 78 of the Bihar and Orissa Act of 1955.
Such a reading also saves the relevant provisions of the NDPS Act from being assailed on an arbitrariness challenge. After all, if Section 53 makes empowered officers coequal in terms of their powers with regular police officers for all intents and purposes, and this was the legislative intent behind the provision, it is clearly arbitrary to render these officers exempt from the limitations on their powers that exist in law. If that were the purpose, the NDPS Act would very well have created clear deviations, as it has on so many other aspects by say enhancing powers of search and seizure under Section 42. More importantly, the NDPS Act already has created a statutory mechanism to override Section 25, and it does not rely upon an interpretation of the phrase "police officer" but instead involves a judicial determination about the interests served by admitting statements made to empowered officers. If the legislature had sought to simply remove the so-called shackles of Section 25, it would not have gone through all this trouble.
Conclusion
After thoroughly conducting an investigation, there are only two possible routes to initiate a case under an NDPS Act: upon the perusal of a “police report” or upon filing a “complaint”. Therefore at present, only a police officer can initiate a case by following the chargesheet-route, as other investigating officers do not have this power. If other officers have to initiate a case, they have no other alternative, but to follow the “complaint case route” because they cannot file a chargesheet. This conundrum can be easily be solved by reading Sections 36-A (1) (d) and 53 together. These two provisions will prove to be the decisive arrows in the statutory quiver if they are given a conjoint reading, as it will pave the way for the empowered officers to adopt the chargesheet route in order to initiate a case.
Whatever might be our views about the "Chargesheet Test" laid down in Badku Joti Savant, a close reading of that decision shows how the Supreme Court did not advocate an entirely simplistic approach but still implored a careful reading of the statutory context involved in each case. In the case of the NDPS Act, Section 53 shows that the conferral of police powers upon other government officers is not limited by a specific purpose, and therefore the deeming fiction demands being given fullest effect to. We have also argued that such a reading is harmonious with the legislative intent behind the NDPS Act, and that any other reading would arguably be unconstitutional on arbitrariness grounds.
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