The Prem Prakash Bail Order

The verdict is out on what is to be made of the judgment by the Supreme Court in Prem Prakash v. Union of India [SLP (Crl.) 5416 / 2024, decided on 28.08.2024 ("Prem Prakash")]. The reason it is attracting so much attention is because of the Court's views on how to treat statements given by persons in custody in a PMLA case, which it expressed while granting bail to the petitioner. These views extend to statements made by the person concerned (Paras 21 to 34) as well as a statement of a co-accused person that is being pressed into reliance (Paras 35 to 37). 

The Holding

The facts are largely irrelevant for this post, and a quick summary would do. The petitioner was alleged to have been the puppeteer pulling the strings behind a number of persons, all towards orchestrating transfer of properties and monies by illegal means. The material used to substantiate these allegations consisted almost entirely of statements recorded by the Enforcement Directorate officials from the Petitioner whilst he was in custody, and statements of other co-accused persons and witnesses. 

In respect of statements by persons concerned, the court appears to have held that: (1) where a person was arrested by the Enforcement Directorate in one case and remanded to judicial custody by a court, the Directorate cannot record statements of that person under Section 50 of the PMLA in a different case without obtaining permission from a court which remanded the person to judicial custody (Para 33); (2) if a person is in custody under PMLA irrespective of the case for which he is under custody, statements under Section 50 PMLA of such a person shall be inadmissible against the maker as such statements will be hit by Section 25 of the Indian Evidence Act 1872 (Paras 27, 32). 

In respect of statements by co-accused persons, the Court has held that such statements would be hit by the rule under Section 30 of the Evidence Act which means that such statements cannot be treated as a piece of substantive evidence against an accused. This rule would apply even for the bail hearing, and will require that the agency fields other material since the statement of a co-accused can, at best, be used to lend assurance to other material (Paras 36, 37).

The Controversy

The only real controversy, I would argue, stems from the second part of the holding in respect of how to treat statements of persons in custody under PMLA. This set of observations lends itself to different readings, ranging from narrowest to broadest. 

The narrowest reading of Prem Prakash, which would be the storm in a teacup view, would be that the judgment emerged from unique facts and its conclusions must remain confined to those facts. Here, The petitioner was already in custody in one PMLA case, his statements were recorded and used in a different case. All that the Court has said is that only in such a situation would it be impermissible to use the statements against their maker. In all other cases i.e., where a person is arrested and questioned in the same case under PMLA, or where a person is in custody because of a non-PMLA case, there would be no such bar. 

The broadest view would argue that Prem Prakash has fundamentally altered the landscape by rendering any Section 50 PMLA statement given in custody after arrest, as a statement which cannot be used against the maker. Such a conclusion relies upon Para 32 of the judgment which begins: "We have no hesitation in holding that when an accused is in custody under PMLA irrespective of the case for which he is under custody, any statement under Section 50 PMLA to the same Investigating Agency is inadmissible against the maker. The reason being that the person in custody pursuant to the proceeding investigated by the same Investigating Agency is not a person who can be considered as one operating with a free mind." A person is not under some unique sense of duress merely because he is already in custody in one case and is now questioned in another, which is why Para 32 is phrased as it is. 

The problem, of course, is that Para 29 of the judgment seems to suggest precisely that a person is under a unique sense of threat: "Is a reasonable inference legitimately possible that, due to the vulnerable position in which the appellant was placed and the dominating position in which the Investigating Agency was situated, in view of the arrest in the other proceeding that, there obtained a conducive atmosphere to obtain a confession?" With due respect, this does not make sense, for the reasons already stated above. It is not the quantity of cases in which I am in custody, but the quality of the custodial experience which is what sets it apart. That is the true import of Justice Krishna Iyer's opinion in Nandini Satpathy, which the bench also invokes in Prem Prakash.

It is not just this obvious sense of internal contradictions that hamper Prem Prakash from achieving its fullest potential as a radical judgment which could force investigative agencies to abandon what appears to be the standard operating procedure to force the accused to make his own noose by recording damning statements which lack any kind of corroboration in material particulars, and then hang the accused with it. A related issue is the judgment's seeming reluctance to cross the rubicon on that extremely familiar issue in Indian criminal law and procedure — how to define 'police officer' for purposes of Section 25 of the Evidence Act. That clause bars evidence of confessions to police officers [discussed at length here] and it has been retained as section 23 in the Sakshya Adhiniyam. 

Prem Prakash refers to the Supreme Court's recent magnum opus on PMLA, the judgment in Vijay Madanlal Choudhary (2022). For a judgment which set out to clarify the law, it did a woeful job, as can be seen from the observations on this issue of whether Enforcement Directorate officers would be 'police officers' for the purposes of Section 25: 

"Ex-consequenti, the statements recorded by the authorities under the 2002 Act, of persons involved in the commission of the offence of money-laundering or the witnesses for the purposes of inquiry/investigation, cannot be hit by the vice of article 20(3) of the Constitution or for that matter, article 21 being procedure established by law. In a given case, whether the protection given to the accused who is being prosecuted for the offence of money-laundering, of section 25 of the Evidence Act is available or not, may have to be considered on case-to-case basis being rule of evidence."

This is remarkably confusing. Either an officer is or isn't a police officer, that is not a 'rule of evidence' that can be left to a case-to-case determination. Nevertheless, Para 24 in Prem Prakash skilfully uses this part to show us that the door was clearly not slammed shut on this issue by Vijay Madanlal, but there were a few cracks left yet. So far, so good. 

What happens next is the problem. Prem Prakash has relied upon a decision by three justices in Raja Ram Jaiswal [AIR 1964 SC 828] to understand 'police officer' under Section 25 in a purposive sense by looking to the kind of powers conferred upon an officer. It failed to mention that after Raja Ram Jaiswal came the Constitution Bench decision in Badku Joti Savant [AIR 1966 SC 1746], which offered a different and arguably narrower view of how to interpret 'police officer' for purposes of Section 25. In this limited view of who is a police officer, Badku Joti Savant argued that it has to be a person who can file a police report at the end of an investigation, something which the Enforcement Directorate officials conspicuously do not exercise under the PMLA. 

In other words, if the Court was taking the plunge on Section 25 in Prem Prakash, it had to set out more clearly how the existing law could be rationalised first with that part of Vijay Madanlal, and then give us a framework for expanding the contours of Section 25 to include Enforcement Directorate officials within it. This is not difficult. The periodic amendments to the PMLA and Section 44 which speaks of 'complaints' filed at the end of investigations, has brought that the PMLA investigative process closer and closer to a traditional police investigation, blurring the distinction between a complaint proceeding and one launched on a police report. For instance, Section 44 today has an explanation which allows 'further investigation' after filing a complaint , allowing 'subsequent complaints' to be filed.  

Thus, even if we cannot close our eyes to the unfortunate holding of Badku Joti Savant (as much as we might want to), it is today not that hard to slot in Enforcement Directorate officials as police officers for Section 25 even with that regressively formalistic framework. Unfortunately, this is left unsaid in Prem Prakash, and it would fall upon subsequent benches confronted with the problem to develop this thought. One would hope that they water the seed and nurture this plant rather than weed it out even before it has had a chance to show the smallest of green shoots. 

Will Prem Prakash prove to be seismic decision, or a mere storm in a teacup? Let us wait and see.

The Reference in Tofan Singh's case - What's at Stake?

In 2013, a Division bench passed the judgment in Tofan Singh v. State of Tamil Nadu [(2013) 16 SCC 31], an appeal against conviction for offences under the Narcotics, Drugs and Psychotropic Substances Act 1985 [NDPS Act]. While suspending the sentence of the appellant, the bench referred the case to the Chief Justice for constituting a bench of higher strength to resolve conflicts on two legal issues:

1. Is the officer recording a statement under Section 67 of the NDPS Act a "police officer" for the purposes of Section 25 of the Indian Evidence Act 1872 [IEA]?
2. Can the statement recorded under Section 67 of the NDPS Act be treated as a confession, even if the officer recording it is not treated as a police officer?

The case was recently listed before a three Justices' Bench and has been heard on four occasions this month, making a judgment likely in the near future. While the hearings have escaped media attention almost entirely, it does not take away from the fact that the issues being decided are very critical for not only cases under the NDPS Act but also criminal proceedings more generally. In this post, I lay out just what is at stake, and give my prediction for what the Three Justices' Bench might do. 

The Issues 

Section 67 allows an authorised officer to record statements of any person to determine if a crime under the NDPS Act has been committed. It includes questioning persons arrested on such suspicions as well, and these statements can be used in evidence. In permitting the use of statements recorded during investigations, Section 67 departs from regular Indian criminal procedure. This can be found in Chapter XII of the Criminal Procedure Code 1973 [Cr.P.C.], that details the powers and duties of police officers during investigations. Sections 161 and 162 of the Cr.P.C. do permit police to record statements, but do not permit their use at trial (except to contradict a witness). 

Though significant, this issue is not before the Court in Tofan Singh. Instead, the issues mentioned above stem from judicial interpretations of the phrase “police officer”: whether or not it includes officers from other services invested with similar powers. Why does it matter? Because confessional statements made to a "police officer" are inadmissible under Section 25 IEA, and if those officers are considered to be outside its scope, then the confessions recorded by these officers become admissible evidence. 

The lasting judicial answer to this question is found in the Constitution Bench decision in Badku Joti Savant [AIR 1966 SC 1746]. It gave a thumb-rule to decide the matter: if an officer can file a Final Report under Section 173(2) of the Cr.P.C. (commonly called a Chargesheet), then it is a “police officer”. This narrow reading has meant that the confessional statements made to officers under the Customs Act 1962 and the Prevention of Money Laundering Act 2002 [PMLA], among others, are all admissible. [For more on this controversy, see here.]   

Now, read the NDPS Act with this lens. Section 36-A says that a case will begin on a chargesheet or a complaint by an "authorised officer". So if we apply the thumb-rule, then since no chargesheet is being filed then these officers are not "police officers". But things are not so simple. The NDPS Act is different, because here, police and authorised officers have coequal powers to investigate, unlike the Customs Act or PMLA where the police have no role to play. Further, the statutory text has subtle differences. The NDPS Act, through Section 53, allows a Government to invest officers with powers equal to those of an Officer in-charge of a Police Station under the Cr.P.C. "for investigation" of offences. A similar provision is absent from the Customs Act or PMLA. Section 67 of the NDPS Act is also different from analogous provisions in the Customs Act (Section 108), and PMLA (Section 50); the latter require making statements under penalty of perjury, which is absent from the NDPS Act context.  

Why was a referral was required in Tofan Singh? In that case, the Division Bench indicated that the authorised officers recording the statement under Section 67 should be “police officers”, and use of any confessional statements recorded by them should be hit by Section 25 IEA. The problem was that two prior decisions by Division Benches had held otherwise: Raj Kumar Karwal [AIR 1991 SC 45] held that the powers under Section 53 NDPS Act are insufficient to make the officer a “police officer”, and Kanhaiyalal [(2008) 4 SCC 668] relied on this view to allow confessions recorded under Section 67 into evidence. Thus, the controversy had to be placed before a bench of higher strength.

The Possibilities in Referral

It is critical that the referral is before a Three Justices’ Bench. This means that the thumb rule of how to identify a “police officer” cannot be re-examined in the Tofan Singh hearings, as that was the gift of a Five Justices’ Bench. Unless, of course, the present bench finds a novel route out of that quandary. This means that the hearings in Tofan Singh should play out within the limited context of the NDPS Act, leaving similar powers invested under the Customs Act, PMLA etc untouched. 

How might the hearings turn out? I have not been able to attend court, nor have I come across live tweets, but I would wager that if the Bench is inclined to retain the existing position then it would want to diminish the statutory differences and locate the NDPS within the existing law. Whereas, if it is inclined to change the law, it will focus on the subtle differences flagged above that make the NDPS Act regime unique. I would argue that the latter option the better choice. Both legally, and also because it fits in with a trend over the past two decades of heightened procedural protection for NDPS Act cases. 

The points of difference — that Section 53 NDPS Act invokes a police officer, and Section 67 does not require sworn statements — are not trivial, and the earlier cases that ignored them not very well reasoned. Raj Kumar Karwal held that Section 53 was insufficient because of Section 36-A requiring that the authorised officer prosecute cases via a complaint. Kanhaiyalal simply extended this to Section 67 as well. This approach is not certainly one way to read Section 53 and Section 36-A of the NDPS Act together, but it is incorrect.

Looking only at the complaint or chargesheet to identify the procedure is far too narrow an approach. Instead, what must be looked at is the entire process from the start to finish. This highlights how the NDPS Act is different from the Customs Act or PMLA: there, a prosecution is not the only inevitable outcome and imagine resolving cases through administrative proceedings. For this reason, those sets of procedures are not termed investigations. On the other hand, Section 53 clearly confers powers for "investigating" cases. Looking only at the statutory label given to the end-product of this process will mean privileging form over substance.  

These arguments carry much more bite in the NDPS context because of the other fundamental point of difference: none of the other laws confer powers on both the police and other agencies. Thus, here the arbitrariness is manifest within the same statutory framework. How can investigations led by one agency end up with more evidence and less procedural protections for accused persons than another, for prosecuting the same crime. It should amount to violating Article 14, given that the NDPS Act has no process for separating the kinds of cases that are investigated by police officers or other officers.       

Which brings me to the final point, of a visible trend for heightened judicial protection to accused persons in NDPS Act cases. Unlike regular Indian criminal procedure, here, the judiciary has held that violations from procedural norms carry serious consequences for the prosecution. Two instances stand out: evidence obtained contrary to statutory norms under Section 50 is inadmissible, and investigation by the same officer who lodged the case can vitiate trial. Allowing confessional statements to be rendered admissible under Section 67 would create a strange tension within the legal framework, and belittle the other safeguards that the judiciary has fought hard to create and protect. 

Conclusions

The hearings in Tofan Singh should conclude within the month of January 2019, making a judgment likely before the retirement of Sikri, J., who was the author of the decision that started this process. It is possible that the Three Justices' Bench upholds the position prior to Tofan Singh entirely and says that confessions under Section 67 shall remain admissible, or try and carve out some exceptions to the general norms laid down by the Constitution Bench in Badku Joti Savant to perhaps exclude the use of confessional statements recorded under Section 67. I have suggested that the latter course is more likely, and like everyone else, await to find out how the issues are ultimately resolved by the Bench.