Monday, November 2, 2020

The Three Justices' Bench Decision in Tofan Singh

This past week, a Three Justices' Bench rendered its decision in the Tofan Singh reference [Crl. Appeal No. 152 of 2013, decided on 29.10.2020]. To recap, two questions had been placed before the Three Justices' Bench: 
  • Whether an officer of the central / state government investigating a case under the NDPS Act is a "police officer"? 
  • Whether statements recorded under Section 67(c) of the NDPS Act can be treated as confessional statements, regardless of whether the officer is a police officer?
By a 2-1 split [Banerjee, J. dissenting], the majority held that an officer of the central / state government empowered to investigate a case under the NDPS Act was a "police officer" for purposes of Section 25 and decisions that held to the contrary were overruled. The majority also held that statements under Section 67(c) of that Act could not be treated as confessional statements [Paras 154-55]. As this blog has considered the issues before the Court in Tofan Singh in considerable detail on earlier occasions, I am not recounting the arguments and jumping straightaway to discussing the opinions in this post.   

On Reading Section 67 Statements 
The majority took up the issue of Section 67 statements first [Paras 58 to 85]. This provision allows the officers empowered under Section 42 to record statements in connection with any "enquiry" under the NDPS Act. For the majority, this "enquiry" was different from an "investigation" conducted under Section 53 of the NDPS Act as well as an "inquiry" as it is defined in the Cr.P.C. Since an officer empowered under Section 42 had the ability to conduct all of the above, it meant that the scope of Section 67 had to be restricted to whatever the scope of this "enquiry" was. This "enquiry", according to the majority, referred to the process by which an officer arrived at a "reason to believe" that her powers of arrest / search / seizure under Section 42 had to be exercised in a case. As the majority strongly emphasised, a person's privacy is not something to be trifled with, and that is why the NDPS Act empowered officers to even record statements before exercising their powers of arrest or search and seizure. 

The majority also clarified that officers only empowered for the purposes of Section 42, but not under Section 53, could not investigate a case but only discharge the burden of Section 42, after which the case had to be handed over to a competent officer. Allowing officers to record statements under Section 67 beyond this stage would create an unseemly situation where they would not be bound by the restraints placed under the general law upon officers recording statements. Furthermore, allowing for confessions to be recorded under Section 67 would render Section 53-A of the NDPS Act entirely otiose. 
The dissent did not agree that the scope of Section 67 could be restricted thus, as it was of the opinion that officers empowered only under Section 42 but not Section 53 could continue to investigate a case. The neat distinction between "inquiry" and "enquiry" was made short shrift of by referring to cases where these two terms had been read as carrying the same meaning, which cast doubt on whether the majority was correctly reading legislative intent. Further, the dissent was not particularly perturbed by the issue of these statements not being governed by the legal restraints of the general law or about the impact this interpretation had on Section 53-A of the NDPS Act, as ultimately the statements would require to pass the rigours of a trial before they could become evidence of guilt. 

I must admit at having a chuckle when I read the "inquiry" versus "enquiry" discussion in the majority opinion as this had once formed the subject of an intense debate with a dear mentor. While we did not have access to "Lexico", which has been referred to by the majority, we did have Garner's Modern English Usage, which noted that the distinction between these words is not well-observed, especially in British English. A look across statutes and decisions in the context of various Indian laws would confirm that this is indeed how our legal system has also commonly treated the phrases, and not with the sharp distinction that the majority would have us work with. 

Thus, I find it difficult to agree with the majority's reasoning, where it hangs solely on this peg of "inquiry" versus "enquiry" to conclude that Section 67 is only empowering officers to record statements to decide whether or not there exist reasons to believe to arrest somebody. By no means does this take away from the seriousness of the issues that the majority identifies, i.e., the absence of safeguards governing recording of statements under the NDPS Act similar to those under Sections 161-164 of the Criminal Procedure Code. However, given the specious nature of this definitional conflict, a more legally sound alternative was to tackle this problem head on and give guidance on how Section 67 statements ought to be considered by lower courts. A good place to start could have been a clarification that Section 67 only applied to unsigned statements, as Section 53-A is a specific provision catering to signed statements, and this naturally reduced their veracity.

Section 53 Officers are Police Officers
This brings us to the other critical issue before the bench: Are government officers empowered to investigate cases under the NDPS Act under Section 53 "police officers"? It would be helpful to break up the components behind the majority opinion's logic for ease of understanding [Paras 86 to 154]:
  • The term police officer is not defined anywhere and must be given a broad view, coloured by the particular statutory context in which officers are invested with powers traditionally conferred upon police officers under the Criminal Procedure Code;
  • The reason behind restricting the admissibility of statements made before police officers was the acknowledgment of coercion involved in the investigative process by police officers to extract evidence from accused persons;
  • Where officers are conferred such powers under a "Penal Statute" and where the purpose behind this investiture of powers is primarily to enable them to discharge an investigative function, and this investigative function is not merely incidental towards the officer discharging other functions such as revenue collection etc., such officers should be seen as "police officers" 
  • The NDPS Act is clearly a "Penal Statute" and, therefore, officers empowered under Section 53 ought to be treated as police officers.
The correctness of this conclusion was buttressed for the majority by the unique statutory context of the NDPS Act. Not only was this context relied upon to conclude that it was a penal statute, but furthermore it was a unique legislation insofar as powers of investigation had been conferred under the same law to those officers who were registered as police officers under Police Acts as well as officers belonging to many other government agencies. Creating a difference in terms of the kind of material potentially available as evidence in cases which are simply dependent on the agency investigating the case would result in an outcome that is manifestly arbitrary and contrary to Article 14 of the Constitution. 

At the same time, the unique statutory context of the NDPS Act is what throws up a stumbling block for this argument in Section 36-A(1)(d), which states that a Special Court may take cognizance of offences on the basis of either a police report, or a complaint filed by officers of the central  / state government. Given that Constitution Bench judgments have held that whether the officer concerned filed a "police report" was critical towards determining whether the investigating officer was a "police officer", how did the majority still arrive at its conclusion? In a very wishy-washy way is my initial answer, as I am still unsure of what to make of the reasoning here. 

At first [Para 137], the majority opinion resembles a boxer flailing at the opponent, throwing many punches but failing to land any of them. It flags many points about why the NDPS process is different, but on its own merit, none of those points is good enough to dislodge the weight of binding precedent on this issue. Then, there is a practical argument [Para 140] about how treating these reports as complaints simplicter would preclude further investigations as that is a process reserved for police reports. Finally [Para 145], the opinion gets tired of beating around the bush and tells it like it is: Given the overarching penal context of this investigation, it should not matter what it is that the officer ends up filing, be it a police report or a complaint, to decide whether this person is a police officer. I guess the majority refrained from saying this too clearly because that might have had an impact on other statutory contexts.

The dissent did not agree with characterising the NDPS Act as a penal statute — even though it spent a fair bit of time extolling the seriousness of the drug menace and the need for stern penalties. At the same time, it held that even if the NDPS Act were to be treated as a penal statute, the existing Constitution Bench decisions on the subject had confirmed that the fact of whether or not the investigating officer has the power to file a police report is determinative for deciding if she is a police officer. When the majority concluded that Section 36A(1)(d) in no uncertain terms required Section 53 officers to file a complaint, it could not sidestep this factual finding and judicial propriety demanded that it follow binding precedent [Para 264].    

The Issue of Binding Precedent
Was the Tofan Singh majority bound by the Constitution Bench in Barkat Ram, then? I honestly think that this is an issue that deserves some serious scrutiny in light of how the majority opinion goes about arriving conclusions. The majority could have clarified the existing position and held that it was not necessary for the statutory text to specifically confer powers to file a police report as had been the case in the peculiar facts of Raja Ram Jaiswal and Section 78 of the Bihar and Orissa Excise Act. Or, the majority could have held that the terms of Section 53 of the NDPS Act meant an unrestricted conferral of police powers on such officers, which would mean that what they filed at the end of an investigation before the court would be deemed to be a police report. The majority did not clarify the holding in Raja Ram Jaiswal, and concluded that Section 53 officers did indeed file complaints, but then tried to very unconvincingly explain how the peculiar terms of Section 36A meant that the officers still had to be treated as police officers, given the context of the NDPS Act. 

Ultimately, whether we agree with the majority view depends on whether we agree with how the opinion reads Barkat Ram. If you agree with the majority, like I do, that Barkat Ram does not blindly ask us to look at whether or not an officer has specifically been conferred with a power to file a police report but instead it asks us to carefully consider the entirety of the statutory context, then it is difficult to argue that the majority view is per incuriam. The problem is that the holding in Barkat Ram is easily capable of being oversimplified as prescribing a "chargesheet test" to decide who is a police officer. This is something that many prior decisions have done, and the dissent also seems to advocate a similar approach. 

It is quite possible that a different bench in the future might agree with this approach to reading the holding in Barkat Ram and disagree with the majority in Tofan Singh. That would presumably throw the doors open to re-litigating the issue before a Constitution Bench. An indirect way in which the correctness of the majority in Tofan Singh might come into question later on is if, based on the strength of this opinion, a bench of the Supreme Court is convinced that the previous holdings of High Courts in some other statutory contexts - such as, say, the Prevention of Money Laundering Act - need reconsideration. 

Conclusions - The End of An Era
When the news broke that the Tofan Singh reference had been decided, someone messaged on a lawyers' group that it marked the end of an era. It certainly would have felt like that for a number of litigants who have litigation pending on the basis of this reference which has taken seven years to reach its end. As it had been predicted by many persons during that seven-year wait (including this Blog), the conclusions in Tofan Singh are unique to its statutory context. At the same time, the majority opinion has offered some hints to build an argument for other statutory contexts in the future as well, though I genuinely wonder if any other existing statute has a similar framework and is anywhere nearly as draconian as the NDPS Act.     

As an aside, a mention must be made about the length of the opinions: their combined length runs into more than three hundred pages. In an age when we talk about the need for law and judicial decisions to be more accessible, it is unfortunate that the Bench chose to replicate copious extracts of past decisions. Not only does this make the opinions difficult to read, but it contributes to repetition between opinions, on occasion, and reduction in the clarity of reasoning that is offered for the different sets of conclusions.

No comments:

Post a Comment