(This is part three of a multi-part series. Previous parts can be accessed here, and here)
The previous two posts in this series have discussed the facts in Tofan Singh, the relevant statutory provisions of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS] and the Criminal Procedure Code 1973 [Cr.P.C.], and also the first proper issue posed in the reference: Whether officers of the central and / or state government investigating cases under the NDPS Act ought to be seen as "police officers" for purposes of the prohibition under Section 25 of the Indian Evidence Act, 1872 [IEA].
This post takes up the second proper issue posed in the reference: Whether the statement recorded under Section 67(c) of the NDPS Act by the central / state government officer "can be treated as a confessional statement or not, even if the officer is not treated as a police officer".
The Arguments Before the Division Bench in Tofan Singh
The 2013 judgment acknowledges that the two questions are interlinked, but even so, it referred the second question because there were extensive arguments raised at the bar, and its summation (as captured in the judgment) is extracted below:
"Pitching this argument to the next level, it was submitted that the power under Section 67(c) of the Act is merely a power to examine any person acquainted with the facts and circumstances of the case. Such statements are not required in law to be truthful as provided under Section 161(2) of the Criminal Procedure Code, which required the person making statement to a police officer under Section 161 Cr.P.C. to make a true statement. Even such a statement made under Section 161 Cr. P.C. is not a substantive evidence on which a conviction can be based. Statements under Section 67 are not required in law to be given truthfully and hence cannot in any case be treated to be a substantive evidence. Further statement under Section 67 are not recorded after administration of oath as is required under Section 164(5) of the Criminal Procedure Code, the officers are not competent to administer oaths and, therefore, the statements under Section 67 cannot be substantive evidence for recording conviction."
And later on, while framing the reference questions, the Court noted that:
"As far as this second related issue is concerned we would also like to point out that Mr. Jain argued that provisions of Section 67 of the Act cannot be interpreted in the manner in which the provisions of Section 108 of the Customs Act or Section 14 of the Excise Act had been interpreted by number of judgments and there is a qualitative difference between the two sets of provisions. In so far as Section 108 of the Customs Act is concerned, it gives power to the custom officer to summon persons “to give evidence” and produce documents. Identical power is conferred upon the Central Excise Officer under Section 14 of the Act. However, the wording to Section 67 of the NDPS Act is altogether different. This difference has been pointed out by Andhra Pradesh High Court in the case of Shahid Khan vs. Director of Revenue Intelligence; 2001 (Criminal Law Journal) 3183."
Making Sense of the Reference Question
Reading the argument, it seems that it was pitched slightly differently than how it was framed by the Court. Rather than consider whether a Section 67(c) statement can be "confessional statement", the argument seems to have been that a Section 67(c) statement cannot be considered as substantive evidence.
The framing of the Court is a bit problematic, largely since there is nothing defined as a "confessional statement" in Indian law, and determining whether a statement is a confession is a very fact specific exercise guided by legal tests. Therefore, I do not follow that framing, and instead engage with the argument that a statement made / recorded under Section 67(c), NDPS Act cannot carry weight as substantive evidence. At best, it must be treated just like a regular statement before a police officer given under Section 161 Cr.P.C., which cannot be used as proof at trial and can only be used for contradicting a witness who takes the stand.
The primary basis for the argument lies in the relative absence of safeguards under Section 67 as a process — both to ensure reliability of the statement as well as to ensure voluntariness. For example, the only kind of statements recorded during an investigation under the Cr.P.C. which can be treated as substantive evidence are those made on oath before magistrates, who are duty-bound to caution the person giving a statement that it could be used against her. Section 67(c), on the other hand, simply says that the officer may "examine any person acquainted with the facts and circumstances of the case" without prescribing any procedure to ensure the reliability and voluntariness of the resulting statement.
Signed v. Unsigned Statements, Section 53-A of the NDPS Act, and an Additional Question
The core logic of this argument might well be sound (I, frankly, agree with it). But a look at the NDPS Act suggests that the argument cannot be taken to its logical conclusion. Rather, I think we land up is a midway point: not all statements that are recorded under Section 67(c) ought to be considered as substantive evidence, but in some cases the statute itself suggests that this is possible and that there is no clear prohibition.
I say this because (as was raised in Part I) of Section 53-A of the NDPS Act, which was curiously missing in the 2013 judgment. Effectively, this provision has created a special rule of evidence for NDPS cases, overriding the general prohibitions under the Evidence Act, according to which any signed statement made to an empowered officer under Section 53 NDPS Act, becomes "relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains". Note that unsigned statements made to such officers stand excluded from Section 53-A and their relevancy and admissibility will be subject to the rigours of general provisions such as Section 25 of the Evidence Act, and a finding on the first issue in the reference (whether the officer is a police officer or not).
Even when we have a signed statement — which, naturally, cannot be under any clause but Section 67 NDPS Act as there is an express bar on taking signed statements under Section 162 Cr.P.C. — Section 53-A cannot kick-in arbitrarily, but only if: (a) The maker of the statement is dead / kept away from the trial / cannot be found, or; (b) The maker of the statement is a witness and the trial judge thinks that, "having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice."
Thus, the NDPS Act itself denies any total prohibition on treating statements under Section 67 as substantive evidence. Where such statements are signed, Section 53-A, and the maker of the statement is a witness, then Section 53-A kicks in. Under this provision, it is the trial judge who has been made the final arbiter of whether it is necessary to consider the initial statement, for its truth, and arguably the counsel for an accused would have the opportunity to advance arguments to persuade a judge against doing so in any given case. It is not unimaginable that a judge gets persuaded by the concerns over reliability and / or voluntariness that were ascribed to statements made under Section 67, NDPS Act.
What about the unsigned statements? Whatever might be the finding on issue one, the reference in Tofan Singh could very well hold that such statements ought not to be treated as substantive evidence as a rule of prudence. Such rules of prudence are not uncommon in evidence law, and it is not at all impossible for the Court to hold that the inherent problems in the Section 67 statement — of reliability and voluntariness — require that it must be corroborated. Should the Court go ahead and do so, I would think that it would not affect the playing field beyond the limited confines of the NDPS Act. Unless, of course, the Court thinks that statements to any government officer, notwithstanding the existence of statutory safeguards, is a piece of evidence that must be treated with a degree suspicion considering the natural imbalance of power between the parties, and therefore requires necessary corroboration of material particulars.
Conclusion
Unless the Supreme Court strikes down Section 53-A of the NDPS Act on grounds of unconstitutionality — which, at least under the terms of reference, is an option not on the table — then the second issue of Tofan Singh must be understood as having been qualified by the terms of the NDPS Act itself.
The issue of whether statements given under Section 67, NDPS Act can be treated as substantive evidence (such as confessions) in NDPS Act cases is one that the statute has already addressed, telling us that it is possible to do so if the trial judge considers that the statement must be read for the truth of its contents in the interests of justice (assuming all the foundational requirements were met).
However, for the statements which fall outside of this bracket — such as unsigned statements, or statements made to officers but not being used in the NDPS Act case itself — the special evidentiary rule would not apply, and we end up back with the uncertainty about whether or not the officer in question is a "police officer". Even if the Court does not conclude that these officers are police officers, it still leaves the possibility of creating rules of prudence requiring that unsigned statements must be corroborated in material particulars and not be considered as substantive evidence on their own merit. Whether the Court ends up arriving at these conclusions only for statements under Section 67, or more generally, will be something to wait and see.
The next, and final, post in the series rounds up the discussion.
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