Guest Post: Much Ado About 'Heading'? Bailable Offences under the NDPS Act

(This is a guest post by Abhayaditya Singh)

The Hon’ble Bombay High Court’s Aurangabad Bench recently reignited the debate on the bailable or non-bailable nature of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 [“the NDPS Act”] while rejecting an anticipatory bail application in Abhijit Annasaheb Amrutrao v. State of Maharashtra. The applicant was charged with section 27 of the Act (consumption of a narcotic drug or psychotropic substance), an offence carrying a maximum imprisonment of one year. According to Part II of Schedule I to The Code of Criminal Procedure, 1973 [“CrPC”], such an offence would typically be bailable. No change to this position has been made under the new BNSS either.

However, controversy arises due to Section 37 of the NDPS Act, titled “Offences to be cognizable and non-bailable.” The section declares every offence under the NDPS Act to be cognizable and places additional conditions for granting bail for certain offences, in addition to those in the CrPC. Two benches of the High Court have taken divergent views on the interpretation of this provision. In Stefan Mueller v. State of Maharashtra [“Stefan Mueller”], the court held that certain offences under the NDPS Act were bailable. Conversely, in Rhea Chakraborty v. Union of India [“Rhea Chakraborty”], the court disagreed with the earlier findings in Stefan Mueller, ruling that all offences under the Act are non-bailable.

The Aurangabad Bench, in the present case, refused to follow Stefan Mueller and denied bail on the grounds laid down in Rhea Chakraborty. These conflicting viewpoints have already been referred to a larger bench of the High Court for determination. Explaining the two contradictory positions seriatim, I argue in this piece that the omission in Section 37 is indicative of legislative intent and that a contrary interpretation would amount to judicial overreach.

The Conflict

In Stefan Mueller, the High Court noted that Section 37(1)(a) declares all offences under the Act to be cognizable. Crucially, the section does not state that all offences under the Act would be non-bailable, contrary to what its heading might suggest. The High Court further opined that the heading has only limited influence on the construction of a statutory provision. In the absence of a demonstrative legislative declaration to the contrary, the High Court ruled that the Schedule to the CrPC would dictate the bailable nature of the offence. Resultantly, the bail provisions of the CrPC alone would influence a Court’s ruling.

The primary disagreement in Rhea Chakraborty stemmed from Stefan Mueller’s perceived failure to consider the judgement of the Supreme Court in State of Punjab v. Baldev Singh [“Baldev Singh”]. In paragraph 4 of Baldev Singh, the Supreme Court states that “Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail.” While the High Court in Rhea Chakraborty acknowledged this statement as obiter dictum, it nevertheless considered itself bound by it. Another prong for rejection of the bail plea was the non-obstante clause in Section 37 introduced vide the 1988 Amendment. The High Court found that this gave the NDPS Act a complete overriding effect over the CrPC, and that any classification of offences thereunder would be governed by the NDPS Act alone.

It is in this context that the reference in Karishma Prakash v. Union of India arose. The High Court disagreed with the reliance on the obiter in Baldev Singh as binding and delved into the legislative history of the Act. Finding that if the legislature intended for every offence under the NDPS Act it could have brought an Amendment to that effect, the High Court agreed with the ruling in Stefan Mueller. Finally, in the interest of judicial decorum, the divergent views were referred to a larger bench of the High Court.

Understanding the Legislative Intent

Much of the discussion around the nature of offences – and the impact of Section 37 – revolves around the 1988 and 2001 Amendments to the NDPS Act. A brief discussion of these is therefore pertinent to understand the legislative intent. The unamended text of the section, as introduced in 1985, merely stated that every offence punishable under the Act would be cognizable, a point reflected in the section’s heading.

The 1988 Amendment introduced to the section the contentious ‘twin conditions’ for bail and modified the heading to include the term “non-bailable”. Notably, this change was not reflected in the text of the section itself. The Statement of Objects and Reasons for the Amendment claimed that although the major offences under the NDPS Act were non-bailable, certain offenders were able to procure bail due to technicalities.

The 2001 Amendment narrowed the scope of application of Section 37(1)(b), the twin conditions, to only a few specified offences under the NDPS Act. It also introduced a sentencing structure based on the quantity of drugs involved in an offence. The Statement of Objects and Reasons for this Amendment indicated that the uniform sentencing structure needed to be overhauled to facilitate the rehabilitation of addicts while maintaining deterrence for illicit traffickers. Rationalising the sentence structure under the NDPS Act would allow for addicts to be granted bail without having to comply with the strict conditions of the Act.

It is evident from the preceding discussion that the legislature recognises two categories of offenders under the Act. First, providers who participate in illicit drug trafficking and often deal in ‘commercial’ quantities of drugs. Second, consumers who may be addicted to certain substances and generally deal in ‘small’ quantities. Despite the 1988 Amendment changing the heading of Section 37, it introduced the stringent bail conditions only for offences punishable with imprisonment of five years or more.

This assertion is only further buttressed by the 2001 Amendment, which rationalised the sentencing structure and laid out this distinction in no uncertain terms. The NDPS Act envisions two categories of offenders and, therefore, lays down two broad categories of offences. Therefore, absent any indication to the contrary, it must be inferred that the Act purposefully establishes both bailable and non-bailable offences in accordance with this distinction.

Constructing Section 37

The High Court in Rhea Chakraborty relied on the non-obstante clause in Section 37 to assert that the NDPS Act would have an overriding effect on the CrPC for the classification of offences. Per this, subsequent to the 1988 Amendment, bail provisions of the CrPC would only apply to offences under the Act when there was no conflict between the two. A non-obstante clause permits for the enforcement of what follows the clause, unimpeded by the provision it seeks to override.

Accordingly, it would be correct to say that offences under the NDPS Act would be cognizable regardless of what the CrPC states. However, the High Court seemingly applied the non-obstante clause to the heading of the section since nothing in the text of the provision would allow for such an interpretation. The heading of the section, at best, precedes the text of the provision and, at worst, is altogether external to it. Such an interpretation of the non-obstante clause is therefore unsound.

There is broad agreement on the weightage accorded to headings as an internal aid to construction. The Supreme Court has stated that headings of a section cannot control the plain meaning of the words in a provision, nor can they be referred to for construing clear and unambiguous provisions. Their utility is limited to instances of ambiguity or doubt. In Section 37, the legislature has declared all offences under the NDPS Act to be cognizable, but the absence of a similar declaration regarding the non-bailable nature of offences does not create ambiguity.

Considerable emphasis was placed in Rhea Chakraborty on the growing problem of drug abuse in India. Averments from the Statement of Objects and Reasons of the Act and its Amendments were reproduced to justify the declaration of all offences under the Act to be non-bailable, arguing that Courts had to adopt a strict stance on offences under the NDPS Act, to prevent the exploitation of perceived legal lacunae. Even so, regardless of the potential for abuse of the legal process, legislative casus omissus cannot be supplied by the judicial interpretative process.

Conclusion

Under a critical lens, regardless of obiter dicta to the contrary, it becomes apparent that the substance of the section does not reflect what the heading might suggest. Within the scheme of the NDPS Act, all offences are cognizable; however, only a subset of these is non-bailable. Declaring all offences to be non-bailable would create a heightened onus on drug users, a class of offenders towards which the legislature has adopted a reformative approach. Such an interpretation imposes conditions for bail not envisioned under the NDPS Act and, in essence, constitutes legislating from the Bench.

Speaking in the context of anticipatory bail, the Supreme Court observed that courts should refrain from imposing bail conditions not mandated by the legislature. If an offence is declared bailable, the grant of bail becomes a matter of right. The issue of bail is one that strikes at the heart of the promise of non-deprivation of life and personal liberty enshrined in Article 21 of the Indian Constitution. In deciding the reference placed before the larger bench, it falls upon the HC to maintain the legislative intent behind the provision and uphold constitutional values.

Guest Post: Anticipatory Bail, Disclosure Statements, and the 'Samarth Kumar' Jurisprudence

(This is guest post by Pratyay Amrit and Rohan Gajendra Pratap Singh)

The Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act") was enacted to tackle illicit drug peddling and consumption in Indian society – not without the oft repeated criticism of aligning with the United States’ ‘War on Drugs’ and consequently, international and intra-national illicit drug trade. Until the judicial pronouncement mentioned in the following paragraph, Indian High Courts were of the opinion that a person may be entitled to anticipatory bail under the Act if the only evidence against them is a disclosure statement made by a co-accused to an investigating officer under the Act. This was in line with the decision in Tofan Singh v. State of Tamil Nadu (“Tofan Singh”) wherein the Supreme Court held that officers falling within the ambit of Section 53 of the Act have powers akin to that of an office-in-charge of a police station, meaning that confessions made to them – specifically officers enumerated under Section 42 of the Act – under Section 67 of the Act would be akin to statements made to the police under Section 161 of the Code of Criminal Procedure, 1973 (“CrPC”). The corresponding section is Section 180 in the Bharatiya Nagrik Suraksha Samhita (“BNSS”). Consequently, such statements would be inadmissible as evidence as per Section 25 of the Indian Evidence Act (“IEA”) and correspondingly, Section 23(1) of the Bharatiya Sakshya Adhiniyam.

However, a series of judgments post Tofan Singh have followed a different route. It can be traced back to a 2022 decision in State of Haryana v. Samarth Kumar (“Samarth Kumar”) which seemingly shut the door for such accused persons to rely on Tofan Singh while seeking pre-arrest bail even when there had been no recovery from them. The only circumstance implicating them in the case was a disclosure statement under Section 67 of the Act. This effectively means that people will be arrested under the Act even absent any material recovery and thus, will be forced to seek regular bail under stringent twin conditions. We argue that such a development has rendered the Act, widely regarded as draconian, stricter and created room for its weaponisation. This analysis is based on the judicial practice followed in cases which sprung up post Samarth Kumar which we argue, is a corruption of the rationale in Tofan Singh. We argue that the grant or refusal of anticipatory bail must depend on multifaceted considerations as has been enumerated in Indian jurisprudence.

The Tofan Singh Ratio

The 2020 judgment in Tofan Singh was the result of a reference made by a Division Bench in 2013 where that bench first gave the conclusion that statements under Section 67 of the Act could not be used, which was later affirmed by a majority in 2020. For almost a decade thereafter, the dominant jurisprudence was that when a person is implicated merely on the basis of a disclosure statement of a co-accused made under Section 67, they are entitled to anticipatory bail if there is no other evidence to corroborate the disclosure statement including lack of recovery of contraband. 

While the reasonability of factors indicating a bail applicant’s innocence may be varied, a scenario that merits careful consideration considering the Tofan Singh verdict arises when a person is implicated solely on the basis of a statement made by an accused under Section 67 of the Act. The said section empowers an officer under Section 42 of the Act to examine any person acquainted with the case and even to call for information from any person to determine whether any provision of the Act has been contravened.

Understandably, this dichotomy creates confusion as to whether Tofan Singh ought to be applied in a way that would allow for the grant of anticipatory bail when the bail applicant’s involvement is not hinged on any factor other than the disclosure statement of a co-accused. While the ratio in Samarth Kumar suffered by reason of the order being non-speaking, perhaps the observations of the Supreme Court in a 2001 judgment in Murleedharan v. State of Kerala lend some strength to its ruling. The Apex Court while dealing with the bail provision of the Kerala Abkari Act had held that the same was in pari materia with Section 37 of the Act. Denying anticipatory bail, the Supreme Court chastised the Sessions Court for granting pre-arrest bail on the ground that only the confessional statement of the accused connected the applicant with the offence. It was observed that it could not be concluded at such an early stage that the investigating agency would not collect further evidence to establish the nexus between the applicant and the offence and that custodial interrogation was crucial to unearth all necessary evidence. However, it is important to note that this decision was rendered much before the verdict in Tofan Singh and that it is open to the court granting anticipatory bail to direct the accused to join the investigation, failing which the anticipatory bail may be cancelled (reading Sections 437(5) and 439 CrPC).

The Backdrop Of Samarth Kumar & The Jurisprudence After

In its order dated 16.07.2021 in Daljit Singh v. State of Haryana, the Punjab and Haryana High Court granted anticipatory bail relying on the ratio in Tofan Singh (by now affirmed by the Three Judges' Bench). It was observed that the petitioner was incriminated based on the disclosure statements of the co-accused. Since such confessional statements cannot be relied upon in a trial for an offence under the Act as per the ratio in Tofan Singh, the court allowed anticipatory bail. The same view was upheld in a host of other orders including in Kamal Chand v. State of Himachal Pradesh wherein the High Court of Himachal Pradesh by order dated 22.11.2022 held that the disclosure statement of a co-accused would not be sufficient to deny anticipatory bail, even when call detail records between the petitioner and co-accused are available since such call records are matters to be examined at the stage of trial. The bench used the provision of bail bond to grant the necessary relief to the accused. Importantly, this verdict came after Samarth Kumar highlighting the beginning of the inconsistency in jurisprudence with a binary choice between Samarth Kumar and Tofan Singh. 

The Supreme Court in Samarth Kumar effectively foreclosed reliance on this line of reasoning to allow pre-arrest bail. While doing so, it observed without further elucidation that reliance on Tofan Singh may be placed at the stage of regular bail or final hearing. In effect, Samarth Kumar had excluded reliance on Tofan Singh in considering anticipatory bail applications without providing sufficient justification for negativing this oft-adopted argument. In light of Samarth Kumar, courts have displayed refusal – inconsistently – in granting pre-arrest bail when a person having no criminal antecedents is implicated solely on account of a disclosure statement, even when there has been no recovery of contraband from them.

The Law & The Trouble

Section 37 of the Act affirms the cognizable and non-bailable nature of offences under the Act. It further outlines the procedure for grant of bail to a person accused of an offence under the Act. The section further lays out the twin conditions for offences involving commercial quantity or if they are amongst 3 offences under the Act (namely Sections 19, 24 and 27A). Samarth Kumar dealt with – among others – Section 27A of the Act which deals with financing illicit drug trafficking and harbouring offenders. Thus, the twin conditions would apply to this case. There is a clear and rational nexus in being more stringent with commercial quantity offences. Interestingly, Table 1A.5 of the National Crime Records Bureau data for Special and Local Laws for 2022 divides the incidents under the Act on two broad parameters – either concerning personal or commercial usage in roughly a 3:1 ratio with a total of ~1.11 lakh incidents in 2022. Given the causality implicit in incidents concerning commercial quantities, an argument could be made to justify imposition of twin conditions in commercial quantity cases in a blanket manner. However, the Supreme Court verdict in Sanjay Chandra v. CBI (“Sanjay Chandra”) had held that bail – while itself a fact-based discretionary power in non-bailable offences concerning the twin condition – still must adhere to certain foundational principles of objectivity. One would be the test of ‘necessity’. 

In this regard, the recent division bench verdict in Tarsem Lal v. Directorate of Enforcement is helpful. When the accused complies with summons issued by court, there is no need for him to seek anticipatory bail. While this flows from Section 88 of the CrPC – and correspondingly, Section 91 of the BNSS – the underlying idea is that of ‘necessity’. Section 88 CrPC or Section 91 BNSS alleviates the issue elucidated in Sanjay Chandra. Notably, the judgment in Sanjay Chandra had emphasised on considering criminal antecedents and the absence of it in determining the grant of anticipatory bail. This is observed in numerous cases including in order dated 21.02.2023 in Aniket v. State of Punjab and order dated 23.09.2022 in Gurpreet Singh v. State of Punjab wherein the Punjab and Haryana High Court refused to rely on Tofan Singh while considering anticipatory bail applications as per the ratio in Samarth Kumar. The Special Leave Petitions filed against these orders were also dismissed by the Supreme Court by orders dated 28.04.2023 and 07.11.2022 respectively. At the same time, another bench of the Supreme Court found force in the very argument that High Courts countenanced before the order in Samarth Kumar was pronounced. In Vijay Singh v. State of Haryana, a division bench of the Supreme Court by its order dated 17.05.2023 allowed anticipatory bail to the applicant on the ground that he was implicated by the disclosure statement of the other co-accused, even though he was already enlarged on bail in a separate matter under the Act. This is in contradiction with Samarth Kumar. Ironically, this verdict also does not provide any reasoning for its conclusion.

Further, in Union of India v. Shiv Shankar Kesari, the Supreme Court had clarified that a court was not required to determine whether the applicant under Section 37 is guilty or innocent but is merely “called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.” This is standard for any interpretation concerning twin conditions in any criminal statute. However, this has led to the courts rendering varying interpretations of the threshold required to be met to be allowed the relief of bail under the Act, and even more so for anticipatory bail. This threatens to fortify an already stringent bar to getting relief under Section 37 into an unassailable impediment for persons implicated on flimsy grounds.

Balancing the Scales

Rather than a blanket rejection of the ratio in Tofan Singh at the stage of anticipatory bail, courts must collectively look for substantive material corroborating the confessional statements and consider other factors such as the applicant’s antecedents, possibility of fleeing justice or committing further offences, and the motive behind accusations. This also affirms the Supreme Court verdict in Siddharam Satlingappa Mhetre v. State of Maharashtra which had further emphasised on the cooperation of the accused as a dominant factor in grant of anticipatory bail and bail in general. It held that the power to grant anticipatory bail is not restricted to exceptional cases but based on the particulars of each case. Accepting the ratio in Samarth Kumar would imply that it might be impossible to obtain anticipatory bail for any offence under the Act in any case, because the prosecution would need only to rely on a disclosure statement to have the application rejected. Courts must require a greater nexus between the applicant and the offence, such as their involvement in other offences under the Act, availability of transcripts or recordings of communications with the accused indicating that the applicant is guilty, a suspicious money trail, ownership of apprehended vehicle etc. In fact, the Punjab-Haryana High Court, in Vikrant Singh v. State of Punjab, had acknowledged Samarth Kumar and yet, relied on the audio transcripts to reject the application for denial of bail as meritless. Thus, the issue boils down to the Janus of judicial application here – either follow Tofan Singh and the rationale therein or follow Samarth Kumar which does not provide any reason whatsoever. The problem greater than Samarth Kumar is the way the courts have dealt with similar cases as has been shown in the judgments mentioned above.

Crucially, Section 37 of the Act read with Section 438 of the CrPC empowers courts to grant anticipatory bail when there are “reasonable” grounds indicating that the accused is not guilty. When there is no material incriminating an individual except a confessional statement under Section 67 – which of itself carries little evidentiary value – it might be reasonable to believe that the bail applicant is not guilty for the purposes of bail. The State cannot produce any lesser evidence than the implication in a confessional disclosure statement to seek denial of anticipatory bail. At the same time, the applicant cannot lead any stronger evidence or plead on any other ground apart from referring to a lack of evidence corroborating the disclosure statement. The same ought to suffice as a “reasonable ground” to believe that the applicant is not guilty.

Conclusion

While it is true that custodial interrogation of an accused may be expedient to unearth evidence of offences under the Act, an outright denial of anticipatory bail in cases where the applicant is implicated solely by a disclosure statement of an accused would risk opening individuals – who are falsely being named to be framed, to derail the investigation, or to protect the actual perpetrator – up to humiliation and harassment. A court should not defer applying its mind regarding the freedom of an individual until after he is arrested when the Act itself does not make a distinction between pre and post-arrest bail. The creation of a two-tier system where Tofan Singh does not apply at one stage but applies at a later stage is without reason – as is clear from the language in Samarth Kumar. Preventing reliance on Tofan Singh at the anticipatory bail stage appears to serve no purpose when the court might accept the same argument at a regular bail hearing post-arrest without any change in circumstance in the meanwhile.

Guest Post: Admissibility of Evidence and Validity of Trial vis-a-vis Illegal Search

(This is a guest post by Chaaru Gupta)

Search and seizure is a significant part of an investigation for gathering evidence and is outlined in the Criminal Procedure Code, 1973 (hereinafter “the Code”). The power given to the investigating agencies is a double-edged sword that can be used to infringe upon the Fundamental Rights of the citizens guaranteed by the Part III of the Constitution. However, time and again the search procedure has been interpreted to be ‘directory’ instead of ‘mandatory’ except under the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act). This post attempts to discuss the effect of illegal search on the admissibility of evidence and validity of the trial, and a need to rethink the effects.

Some Procedural Requirements for Searches

Given the extensive nature of the search procedure, there are numerous steps at which errors or omissions can be made. There are different legal consequences for every error or omission. I discuss two of these provisions: search conducted without proper authority and a search conducted in absence of independent witnesses.

Although not necessary, the Code does provide for a warrants-based approach for carrying out a search. However, search warrants cannot be issued by every Magistrate. Section 94 of the Code empowers only certain Magistrates to issue a search warrant and these are District Magistrates, Sub-divisional Magistrates, and Magistrates of the first class. Where the search is made in pursuance of a warrant issued by a Magistrate and the concerned Magistrate was not empowered to issue such a warrant, it shall be considered an irregularity and it will not vitiate proceedings.

Section 100 of the Code requires the presence of at least two independent and respectable witnesses during the search. The provision uses a ‘shall’ which usually means mandatory instead of discretionary. However, in the case of Mohan Singh v. International Airport Authority of India, the Supreme Court (hereinafter “the SC”) held that interpretation should be done in light of the intention of the legislature, and therefore, the word ‘shall’ can be construed to be directory or mandatory depending on the provision and its interpretation. Courts in India have construed the presence of independent witnesses to be directory instead of mandatory, which doesn’t seem to reflect the intention of the legislature while drafting the provision.

It has been held that the absence of independent witnesses during the search does not affect the prosecution case and merely requires a court to adopt greater care while scrutinising evidence. In case the evidence submitted is found acceptable, it would be an erroneous proposition to find the arguments of the prosecution unacceptable solely on this ground. This implies that the obligation to take witnesses is not absolute and it does not vitiate the seizure.

Admissibility of Evidence and Illegal Search

The position of law in India with respect to the effect of illegal search on the admissibility of evidence is very similar to the position of law in India concerning the effect of illegal search on the validity of the trial. In cases under the NDPS Act, the exclusionary rule is applied and in cases under the Code, the inclusionary rule is applied.

However, this position is worrisome on many levels as illegal search and seizure vis-a-vis admissibility of evidence under the Code poses a number of problems including its being antithetical to the spirit of the Constitution (1), its leading to miscarriage of justice (2) and its having at stake the integrity and honour of the judicial system (3).

Antithetical to the Spirit of the Constitution

The current position of law leads to a breach of the right to privacy of the suspect. In K.S. Puttaswamy v. Union of India (hereinafter “Puttuswamy”) the SC recognised the right to privacy as a fundamental right. It forms an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution and as a part of the freedom guaranteed by Part-III of the Constitution. The right to privacy is an inalienable right that includes freedom from interference. An illegal search violates the right to personal liberty of a person and is thus unconstitutional. In fact, Dr. Ambedkar considered the right to be secured against illegal and unreasonable searches “very important so far as personal liberty is concerned” but due to political reasons, the same was not incorporated in the Constitution. A similar argument was presented before a Constitution Bench in Pooran Mal v. Director of Inspection (Investigation). It was argued that admitting evidence obtained by illegal search and seizure was antithetical to the “spirit of the Constitution”. The SC held that the criterion for admissibility is relevance and there was no express or implied prohibition in the Constitution against admitting evidence obtained by an illegal search.

However, there are two issues with this decision that need to be discussed. Firstly, the SC was misled to believe that there needed to be a specific prohibition against the inclusionary rule in the Constitution. It needs to be noted that the exclusionary rule is distinct from the rights guaranteed under the Constitution. The rule operates as “judicially created remedy to safeguard the constitutional rights.” Therefore, there is neither an express right to exclusionary rule, nor a specific prohibition against inclusionary. Secondly, the SC relied on State v. Navjot Sandhu which, while referencing RM Malkani v. State of Maharashtra, upheld the admissible-if-relevant test. However, it needs to be noted that Puttaswamy overrules, directly or indirectly, each of these cases as far as these aspects are concerned.

Miscarriage of Justice

The inclusionary rule can lead to a miscarriage of justice. Section 465 of the Code provides that there shall be no direct bearing of an irregularity or illegality in the investigation unless it leads to failure of justice. However, a search by an officer not empowered to conduct the search or a search in absence of independent witnesses is far from being a “mere irregularity” and consequently, should be considered a miscarriage of justice and thus be quashed. As pointed out earlier, it comes at the cost of the fundamental rights of the citizens and thus, cannot be just. The ends do not justify the means and injustice cannot lead to justice. The absence of witnesses has the potential to allow the search team to be arbitrary which is inconsistent with the rule of law. It may provide a faster way to conduct the procedure but at the cost of the liberty of the citizens.

Integrity and Honour of the Judicial System

The choice between exclusionary and inclusionary rule has the integrity and honour of the judicial system at stake. The judicial system will be brought to disrepute in case of condonation of the arbitrary and illegal conduct of the investigating authorities. At the same time, excluding important and concrete evidence due to a minor irregularity in the procedure can also jeopardise the reputation of the judicial system. This implies that there is a need to strike a balance between the two rules as both can lead to extremely inflexible situations.

One aspect to be considered under fair trial can be the legality of search and seizure conducted during the investigation. The position with respect to the effect of illegal search on the validity of trial is similar to the effect of illegal search on the admissibility of evidence. Non-compliance with the provisions like the presence of independent witnesses is a mere irregularity and does not vitiate the trial. This position may vary from case to case, for instance, if an irregularity affects the trial to the prejudice of the accused, the accused would be entitled to acquittal as this affects an aspect of fair trial which is the presumption of innocence. Irregularities in general merely act as a direction to the court to adopt greater caution while examining the evidence during the trial. However, the same is not the case with search in violation of the NDPS Act.

NDPS Specific Searches and Vitiating Trials as a Remedy

The courts in India are divided on the effect of illegal search on the validity of trial under the NDPS Act. Though the SC through a landmark decision in the case of Balbir Singh v. State of Punjab (hereinafter “Balbir”) cleared the position of law by holding that illegal search and seizure or illegal arrest under the NDPS Act vitiates the trial, the position is still not settled.

In Balbir, the SC did not take into consideration any precedent which held that illegal search does not vitiate the trial altogether. The circumstance which can lead to the vitiation of the trial is the procedural lapse which vitally affects the trial to the prejudice of the accused and is irreversible. In this case, the accused would be entitled to be acquitted. This position has been followed by the courts for a long time and rightfully so. The following factors need to be considered while deciding the same.

Opportunity Cost

Vitiation of the trial itself in case of illegal search under the Code or the NDPS Act comes at a huge opportunity cost. In case the trial is vitiated because of an illegal search, the opportunity cost is the benefit that would have been driven by its continuation by a number of beneficiaries. The beneficiaries would include all the stakeholders in that particular case such as the victim, the police, the counsels, and most importantly, the criminal justice system. The benefits which are forgone by vitiating a trial are far more than the benefits which are driven by vitiating it due to violation of search procedure. It needs to be understood that our judicial system, with its increasing number of pending cases, does not afford this high an opportunity cost. The interest of the stakeholders needs to be kept into consideration while deciding the case. Furthermore, vitiation of a trial should be the last resort in case of an illegal search.

In case of an illegal search, the Magistrate has other alternatives before the Court vitiates the trial. The first is that the Magistrate in case of illegal investigation can order further investigation or re-investigation. In Kishan Lal v. Dharmendra Bafna, the Court held “An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence.” However, in case of reinvestigation or de novo investigation, the SC in Vinay Tyagi v. Irshad Ali held that neither the investigating agency nor the Magistrate has any power to order or conduct fresh or de novo investigation since their jurisdiction and powers are limited within the Code. However, the Code doesn’t place any limitation to the exercise of power by the High Courts under Section 482 of the Code and the SC under Article 142 of the Constitution of India. In addition to this, the writ jurisdiction of the SC and High Court under Article 32 and 226 of the Constitution respectively makes it competent to direct reinvestigation to ensure justice or to prevent the abuse of any process of the Court.

Conclusion: Need to Strike Balance

The criteria for striking a balance between the two rules can be (1) the nature of the crime, (2) the degree of necessity to compromise the rights of the suspect, (3) the reputation of the judicial system, and (4) whether the violation of rights was ‘wilful’. Sufficient judicial discretion should be granted to the Magistrate, coupled with proper and strict guidelines for the investigating authorities. There should be no endorsement of unfair conduct of the investigating authorities. At the same time, flexibility should be provided to the methods adopted by the investigating authorities considering the nature of the crime and surrounding circumstances.

It can be said that the position of law, with respect to the effect of non-compliance with the rules of search procedure, needs to be settled for the better. The fundamental rights of citizens are inalienable and cannot be compromised under any circumstances. With respect to the effect on the validity of the trial, the decision in Balbir is unreasonable and fails to acknowledge the various other means to which the court can resort in order to right the wrong, before vitiating the trial itself. The interests of various stakeholders of the judicial system need to be acknowledged, accepted, and balanced.

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.

The Constitution Bench Judgment in Mukesh Singh — A Sensible Retreat from Automatic Bias

On 31.08.2020, a Constitution Bench of the Supreme Court delivered its unanimous verdict in Mukesh Singh v. State (Narcotic Branch of Delhi) [SLP (Crl.) Diary No. 39528/2018 decided on 31.08.2020, along with other batch matters]. The Constitution Bench had been assembled to decide on the correctness of a Three Justices' Bench decision of 2018, Mohan Lal [AIR 2018 SC 3853]. 

Mohan Lal had taken up a very specific issue upon which conflicting decisions had been rendered by the different benches of the Supreme Court in the past. This issue was what is the effect upon the validity of a criminal investigation where the investigating officer is the same person who is the first informant. This is not an uncommon instance, mind you. For example, in narcotics cases, it is quite ordinary for the crime to be reported as a result of officers conducting a raid. Can the officer who conducted the raid continue as the investigating officer? And if so, does that have any effect on the validity of the ensuing investigation? The conclusions in Mohan Lal were that (a) the same officer reporting the offence must not continue as the investigating officer of the case, and (b) where this happens, then it vitiates subsequent proceedings, due to a presumption of bias being established. While the facts in Mohan Lal were specific to the NDPS Act, the observations made in the decision were broad and applicable to the context of criminal investigations more generally. 

This author had expressed his reservations about these conclusions in Mohan Lal. The doubts were loudly expressed within the year by a Bench of Two Justices in Mukesh Singh (which ultimately found its way to the Constitution Bench). Then, in Varinder Kumar [2019 SCC OnLine SC 190], a different Three Justices' Bench (Two members of which were part of the Bench in Mohan Lal) supported the conclusions that had been arrived at earlier but with many reservations (and some problematic language on procedural rights of accused persons), and expressly declared that the 2018 ruling would only apply with prospective effect.

It appears that now, finally, the confusion has been put to rest.

The Arguments  

The 62 page long judgment details the submissions of the Appellants from Paragraphs 3 to 4, then narrates the submissions by the Solicitor General [Para 5] and the Additional Solicitor General [Para 6], and finally rounds this up with Rejoinder submissions [Para 7]. 

The Appellants, naturally, argued in support of Mohan Lal and its logic of automatic bias. The thrust of argument was focused around the NDPS Act and a key point was the interplay between Sections 42 and 52 of the Act. Section 52(3) states that an officer who conducts an arrest / search / seizure under Section 42, must turn over the person / items over to an officer empowered to investigate the case. For the appellants, this added statutory gloss to the point of principle that the observations in Mohan Lal were based upon. Surely, the text of Section 52(3) suggested that Parliament was also uncomfortable with the same officer continuing as the investigating officer in a case.    

On the other hand, the Respondents approached the issue from a generalist perspective and delved into the scheme of the Criminal Procedure Code 1973 to argue that there was, in fact, clear support for the same officer to continue as the investigating officer on a case in Section 157. The Code was also cited to argue that the categories of issues which render proceedings vitiated for "illegality" is clearly set out, and having the same officer continue on the case is not one of the specified grounds. On the scheme of the NDPS Act itself, it was argued that Section 52 did not demand that the officers must be different. 

Reading the judgment, it seems a bit surprising that the central focus of arguments was not the universalist approach of Mohan Lal. The Appellants recorded submissions do not suggest why that specific position is the desirable one. If anything, only the Respondents seem to have tried to explain what are the problems in that approach and why a case by case approach ought to be favoured. The argument in this regard seems to have been purely consequentialist — so many cases with good evidence will be thrown out on a technicality — and not about where this specific issue fits in the larger legal fabric of the doctrine on bias.

The Judgment 

The judicial consideration of the argument begins from Para 8 onwards. The dissatisfaction with Mohan Lal is evident in Para 8.1: 

"On considering the entire decision of this Court in the case of Mohan Lal (supra), it appears that in this case also the Court did not consider in detail the relevant provisions of the Cr.P.C. under which the investigation can be undertaken by the investigating officer, more particularly Sections 154, 156 and 157 and the other provisions, namely, Section 465 Cr.P.C. and Section 114 of the Indian Evidence Act. Even in the said decision, this Court did not consider the aspect of prejudice to be established and proved by the accused in case the investigation has been carried out by the informant/complainant, who will be 35 one of the witnesses to be examined on behalf of the prosecution to prove the case against the accused. This Court also did not consider in detail and/or misconstrued both the scheme of the NDPS Act and the principle of reverse burden."

It is quite evident by this point which way the judgment is going to go, and there are no surprises from here till the conclusions in Para 12. After a detailed discussion of the 1973 Code [Para 9], the judgment turns to the NDPS Scheme. How is the point about Section 42 / 52 dealt with? At Para 9.3.8 and 9.5, the judgment notes that it is nowhere stated that the officers empowered under 53 have to be different / shall be different from those empowered for 42. Thus, to require otherwise would be overstepping the judicial function by inserting words in the statute which do not exist. 

For the Court, the NDPS being a law which casts a reverse burden and carries heavy punishments is not something which warrants a rule of automatic bias in cases where the informant continues as investigating officer. As the judgment notes [Para 10], the accused would have the opportunity to cross-examine that officer and burnish her claim about bias. The judgment also referred to the presumption of regularity that is attached to official acts under Section 114, illustration (e) of the Evidence Act and observed that a rule of automatic bias would run contrary to this presumption. Thus, "the matter has to be left to be decided on a case to case basis without any universal generalisation." [Para 10.1]

Some Thoughts

On the whole, Mukesh Singh is the kind of dour, sensible decision, that we need more of (perhaps without the copious extracts of statutory provisions — Sections 41 to 57 of the NDPS Act are extracted almost entirely!). For this author, the conclusions arrived at mark a sensible retreat from the rule of automatic bias that Mohan Lal had supported. It is impractical for a legal system where law enforcement is understaffed and it did not sit comfortably in a procedural setup where standards always trump rules when it comes to issues about weighing the impact of procedural safeguards. On top of which, I still think that a rule such as this would only have prompted law enforcement to find loopholes to work-around what they saw as a bad rule rather than the rule actually furthering the promise of fairer investigations. Lastly, and the speed with which the issue got resolved by a Constitution Bench is proof of this, the truly awesome nature of reliefs offered for the breach of a procedural rule were bound to make courts have second-thoughts about going ahead and fully implementing Mohan Lal.    

Coming back to a position where accused persons have to demonstrate bias is a sensible retreat. But, what next? How is this task to be carried out by accused persons and the plea determined by courts? And what about reliefs beyond acquittals? It is quite surprising that, much like Mohan Lal which it overruled, the judgment in Mukesh Singh has not offered us any clarity on these important practical aspects. There has been a tendency on part of the Supreme Court to not fully explore the remedial aspect of rights cases, and Mukesh Singh fits the bill. In being concerned with limiting the scope for acquittals on pleas of bias, the Court ended up missing a chance to explore other reliefs that accused persons might be entitled to when a plea of bias is raised at the end of trial or, as is much more common, in an appeal context.  

Let us take the bias point next. The Constitution Bench brackets prior decisions into two buckets — those for an automatic bias rule and those against — and in doing so ignores that there is a fair bit of subtlety involved in the task of determining a plea of bias [For more on the Indian law on bias, see here]. For instance, consider the judgment in Mohan Lal. A key reason for the Three Justices' Bench choosing the automatic bias rule was its mistaken finding that the existing legal position required accused persons to "demonstrate prejudice" and "bias [to] be actually proved". A closer look at the older case law would reveal that none of the decisions had gone ahead and actually dealt with how accused persons were to go and establish pleas of bias. The only real exception being the 2004 decision in V. Jayapaul [(2004) 5 SCC 223], which required that an accused must establish the existence of a "real likelihood of bias" and not existence of "actual bias". 

The only reference we get to this practical side of things is Para 11 of the judgment in Mukesh Singh, where it is observed that: 

... Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. Therefore, as rightly observed by this Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be decided on a case to case basis without any universal generalisation. As rightly held by this Court in the case of V. Jayapaul (supra), there is no bar against the informant police officer to investigate the case. As rightly observed, if at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer the question of bias would depend on the facts and circumstances of each case and therefore it is not proper to lay down a broad and unqualified proposition that in every case where the police officer who registered the case by lodging the first information, conducts the investigation that itself had caused prejudice to the accused and thereby it vitiates the entire prosecution case and the accused is entitled to acquittal. (Emphasis supplied)

What we see is that the Court has gone ahead and supported Jayapaul, but observed that the accused may establish bias or its real likelihood, which is a tad confusing to say the least. Furthermore, the observations in the first half of Para 11 are loosely worded and can lend themselves to a view that the judgment goes to limit the significance of biased investigations only where the case lacked independent evidence. This, in my view, is an incorrect reading of the paragraph. Rather what the Court seemed to have been at pains to do here, and throughout the judgment, is to narrow down the cases where acquittals might be warranted on grounds of bias / real likelihood of bias on part of the investigating officer. 

With Mukesh Singh, it would seem that this issue of what happens to a prosecution where the same officer who was the first informant continues as the investigating officer has been settled. There is no vitiating of the case on grounds of presumptive bias. But that is the limited extent of clarity on offer, and the practical aspects of raising a plea of bias remain under-explored. 

The Tofan Singh Reference — Part 4: Summing Up

(This the fourth part of a multi-part series. Previous posts discussing Tofan Singh can be accessed here)

The 2013 judgment by Two Justices' in Tofan Singh v. State of Tamil Nadu [(2013) 16 SCC 31 ("Tofan Singh")] had referred two interlinked issues arising under the Narcotic Drugs & Psychotropic Substances Act 1985 ("NDPS") to a bench of three Justices. No matter the importance of the issues — which, interestingly, even prompted a sitting Justice to plea for a speedy consideration of the reference at one point — the Tofan Singh reference lay in cold storage. Till January 2019, that is, which is when arguments appeared to have been concluded, but no judgment ever came. Fast-forward to August 2020, and a different Three Justices' Bench appears poised to consider — and hopefully decide — the issues in Tofan Singh.

To recap, the issues are:

• 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?   

Let's take up both of them, in turn, to flesh out what is at stake and what might be the key points to consider. 

Who is a "Police Officer"

Section 53 of the NDPS Act makes it possible to invest officers / classes of officers from the central or state government, "with the powers of an officer-in-charge of a police station" as laid out under the Criminal Procedure Code 1973 ["Cr.P.C."]. Does this make these officers "police officers"? The Court has taken a look at this issue many times in the past, and different benches have ended up at different conclusions. Hence, the reference in Tofan Singh.    

Why does it matter whether these officers are treated as "police officers" formally? It is due to Section 25 of the Indian Evidence Act 1872 ("IEA") which states that no confessions made to a "police officer" shall be proved against an accused. So, if these officers are police officers, then a confession recorded by them would be hit by the Section 25 prohibition and rendered useless as evidence. 

Provisions similar to Section 53 of the NDPS Act, and the issue of whether such empowered officers are "police officers", is something that the Supreme Court has considered in the past. Besides taking a hard look at all the previous instances where the Supreme Court specifically took up the Section 53 issue, it is likely that the arguments in Tofan Singh might turn to these more general decisions as well to help cull out the legal position. In this regard, the decisions in Raja Ram Jaiswal [AIR 1964 SC 828 (Three Justices' Bench)] and in Badku Joti Savant [AIR 1966 SC 1746 (Five Justices' Bench)] are likely to be critical. 

The so-called "Chargesheet Test" in Badku Joti Savant has proven critical on many a prior occasion when this issue of who is a police officer has come up. According to this view, an officer who is conferred with a power to file a Police Report (commonly referred to as a Chargesheet) is one who qualifies as a police officer for purposes of Section 25 IEA. A plain reading of Section 53 does not show that any express conferral of this power has been done. Rather, Section 36A(1)(d) of the NDPS Act suggests that the investigations by such officers should end with a Complaint and not a Police Report.   

In my opinion this approach is certainly plausible, but not desirable, as it ends up privileging form over substance both in terms of how we read precedent and the text of the NDPS Act itself. Let's start with precedent first. Badku Joti Savant did say that a police officer is one who can file a police report. But it did not advocate an approach that shuts its eyes to the specific statutory text in question. Rather, in Badku Joti Savant the Court paid very close attention to the specific text (Section 21 of the Central Excise and Salt Act 1944) to come to the unanimous verdict. Section 21(2) certainly said that the Excise Officer "may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station". But it began with a "For this purpose", thus indicating that the conferral of power was not absolute. For the Constitution Bench, this limitation proved critical (Notwithstanding that this purpose was to "inquire into the charge" against a person). For the Court, this made Section 21 obviously different from the provision in question before the bench in Raja Ram Jaiswal (Section 78 of the Bihar and Orissa Central Excise Act 1915), which did not have any such express limitations and thus correctly arrived at the conclusion that those officers under the Bihar and Orissa Act should be police officers. It bears mention that Section 78 of the Bihar and Orissa Act 1915 created a specific deeming fiction that the document filed at the end of an inquiry must be seen as a "Police Report". However, this was not the basis for deciding the issue in either Raja Ram Jaiswal, or noted at all by the Court in Badku Joti Savant 

Section 53 does not contain any such express deeming fiction which says that the document filed by the empowered officer is deemed to be a police report. At the same time, it also does not contain any limitation on the investiture of power of the kinds that troubled the Court in Badku Joti Savant. To consider such a limitation being implied by Section 36A(1)(d) is certainly possible, but arguably incorrect and unconstitutional. If Section 53 has invested certain officers / classes of officers with all powers of a regular police officer for investigating a case, without any qualifiers, then that deeming fiction should be taken to its logical conclusion and treat the two sets of officers as equal in substance. Using Section 36A(1)(d) to treat the two sets of officers as different, by allowing statements to one as being admissible but not the other, would ridicule the notion of equality and arbitrarily prejudice the set of defendants whose cases are investigated by Section 53 officers. Lastly, it is not at all necessary to read Section 36A(1)(d) as demanding complaints by empowered officers. Instead, this clause could be read as applying to all the other central / state government officers who are not empowered under Section 53.     

Section 67 Statements as Substantive Evidence

Section 67(c) of the NDPS Act is a specific provision that permits empowered officers to examine any person acquainted with the facts of a case. The second issue posed in Tofan Singh is whether such statements can be treated as substantive evidence at trial. This issue was seen as interlinked with the first one because, if the officer recording the statement is treated as a "police officer", then the prohibition of Section 25 IEA would apply to render such statements inadmissible. 

Well, not quite. This is because of Section 53-A of the NDPS Act, which is a special rule of relevancy for NDPS cases crafted for signed statements given to empowered officers. This clause leaves it open for the trial judge to accept such statements in evidence for the truth of their contents if the judge thinks it is necessary to do so in the interests of justice (where foundational requirements of the clause are met). In such cases, I would think that the issue of whether or not we treat the concerned officer as a "police officer" is rendered redundant, as the prohibition of Section 25 IEA is being lifted by this special law.

If this reading of the NDPS Act is correct, then the second issue in the Tofan Singh reference is largely reduced to an issue of unsigned statements under Section 67. If the officer recording the statement is treated as a police officer then, naturally, the general prohibition of Section 25 IEA would apply. But even if this is not the finding on the first issue, the Court in Tofan Singh might yet have something to say about using such statements as substantive evidence. This is because of how Section 67 of the NDPS Act is worded. Compared with what are touted as similar provisions in other laws permitting statements to come in as substantive evidence — say, Section 108 of the Customs Act, Section 50 of the PMLA, or even Section 164 of the Cr.P.C. — the statement under Section 67 is (i) not given on oath, and (ii) is given without any warning / caution administered to the accused of the consequences. As a result, statements under Section 67 NDPS Act are arguably bereft of safeguards to ensure their reliability as well as voluntariness. Especially if one takes a moment to think about the fact that a lot of these statements are tendered by persons under arrest and in police custody. 

In light of this, should trial courts be permitted to consider such statements as substantive evidence and proof of guilt? If the Supreme Court does think that this is a problem, then there are a few options available to address it. Let's flesh out two of these: First, the Court could treat unsigned Section 67 statements the same as those given under Section 161 of the Cr.P.C., and only allow them to be used for purposes of contradicting a witness during trial. Or, Second, it could perhaps push for a rule of prudence (similar to that governing accomplice evidence) which requires that trial courts may consider the Section 67 statements only where the prosecution can offer corroboration of material particulars. 

Conclusions

Until the text of Section 25 IEA is changed, the issue of who is a "police officer" will remain a critical one in all contexts. The reference in Tofan Singh should, hopefully, put to bed the confusion that has reigned on this point in the context of the NDPS Act — a confusion that was identified way back in 2013. However, the very specific contours of Tofan Singh and the NDPS Act would suggest that any conclusions that the Supreme Court arrives at are not going to affect the broader landscape, and the "Chargesheet Test" of Badku Joti Savant will probably remain the general statement of law. Unless, of course, the Court clarifies this position of law in a way that has a wider impact. One such way could be to perhaps set the record straight upon just what kind of statutory deeming fiction is required to treat other empowered officers as police officers. Whichever way the Court decides on this issue in Tofan Singh is bound to have an effect on the second issue placed before it—the scope of which is arguably limited by Section 53-A of the NDPS Act itself. However, it would be wrong to think that there is nothing more to be said on the evidentiary status of Section 67 NDPS Act statements. These statements leave a lot wanting on the twin prongs of reliability and voluntariness that Indian evidence law insists upon when dealing with witness testimony. The Court hopefully engages with these limitations while arriving at whatever conclusions it considers appropriate. 

The Tofan Singh Reference — Part 3: Statements under Section 67 NDPS Act

(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.