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. 

The Tofan Singh Reference — Part 1: Some Key Questions of Fact, and the Scheme of the NDPS Act

(This is the third post on the Blog discussing the reference in Tofan Singh, and the second one in an on-going series) 

The previous post introduced this issues in the Tofan Singh reference, that has been fixed for hearing this month by the Supreme Court. In this first substantive post, the focus is on getting the facts straight. The legal issues that are bound to be raised turn on some very specific facts, and so it is critical to be sure of just what had happened in Tofan Singh. After having set out the facts, the post will then tease the legal issues out in connection with these facts, to help in getting a better sense of the same. 

Sorting out the Facts

Tofan Singh was a criminal appeal in a narcotics case that reached the Supreme Court after two rounds of litigation, in both of which the appellant and other accused persons had lost. The prosecution had sought to prove that Tofan Singh and his associates had conspired to engage in drug trafficking (heroin, the choice of substance). 

The Supreme Court judgment extracts the facts at length. But, here's the thing: it does not extract the same facts as done by other courts which have heard the matter. The factual narration in the High Court judgment (reported as Badrilal Sharma v. State), differs from the Supreme Court version on some very important aspects. I've extracted these below: 

• An intelligence officer in the NCB, South Zone Unit (L.S. Aruldoss, PW-7) had received a tip-off about the trafficking activity, and he was in-charge of a team that intercepted the Ambassador car in which the appellant and some other accused persons were found. From this vehicle, the contraband was recovered, and the appellant and other accused persons were arrested by the raiding party. Note though, that the High Court judgment suggests that the arrests happened later, after the statements had been recorded.
• Statements of the accused persons were recorded under Section 67 of the NDPS Act by another Intelligence Officer who was part of the raiding party, and in his statement it was claimed that the appellant had confessed to the crime. Note, again, that the High Court judgment suggests that the statements of each accused were recorded by different officers]
• The case was then transferred to another officer, R. Murugan, for investigation, who filed a report under Section 173 of the Criminal Procedure Code 1973 [“Chargesheet”] upon completing the investigation. Critically, note that High Court judgment suggests that it was not R. Murugan, but instead one Sridhar (also an NCB Intelligence Officer), who conducted the investigation, and he eventually filed a Complaint and not a Chargesheet.

Despite the discrepancies, one can still ascertain that (i) Regular police cadre did not investigate the case and this was done by Intelligence Officers in the Narcotics Control Bureau [NCB], and; (ii) Statements of accused persons recorded were also not recorded by regular police officers but by these NCB officials. But it is imperative to have certainty about the third issue — whether the officers filed a Chargesheet, or a Complaint? In the current legal scheme governing the question of who is a police officer, one that has been constructed by judgments of the Supreme Court going back to the 1960s, it is this singular fact upon which the entire story turns, as the next post in the series will discuss.

The NDPS Act Structure — Taking Cognizance

The Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS Act] has a slightly peculiar statutory scheme which also contributes to the complications at hand. Take a look at Section 36(1)(d), which describes how the court can take cognizance of an offence:

"a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial." [Emphasis supplied]

 

This provision largely mirrors the scheme of Section 190, Cr.P.C., which lays down the general law and states that cognizance can be taken upon (a) "a complaint of facts which constitute the offence", or (b) "a police report of such facts". Note, that a police report refers to the report that is filed under Section 173, Cr.P.C. It is colloquially called a "Chargesheet" when the police recommends that a case be sent for trial. Whenever police officers investigate a case, the only instance in which this leads to filing a "Complaint" is where the offences alleged are "non-cognizable" in nature. In all other cases, the document that the police files at the end of an investigation is a "Police Report" as under Section 173 of the Code.

Through this scheme, the Supreme Court has concluded thus: A police officer is one who files a police report at the end of an investigation, and not a complaint. We will come back to this rule of thumb in detail later, but just keep it in mind for now, as this is crucial for the first issue posed in the Tofan Singh reference.

The NDPS Act Structure — Who Investigates

Section 36(1)(d) suggests that courts can take cognizance on either a police report, or a complaint filed by an officer so authorised. This prompts another question: Who can investigate a case under the NDPS Act, and ultimately file it before the court?

Chapter V of the NDPS Act, titled "Procedure", sets out the bulk of the investigative powers vested upon officers under this Act. In this regard, take a look at Section 53 of the Act:

53. Power to invest officers of certain departments with powers of an officer-in-charge of a police station.— 

(1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act. 

(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.

The "officer in charge of a police station" is a technical term defined in the Cr.P.C., but reading the definition alone doesn't help understanding its import and the power that it confers, for which one must go through the Cr.P.C. as a whole. Basically, this is the officer upon substantive powers of arrest, search, etc. are vested through the Code. And, under Section 156 of the Cr.P.C., it is this officer who is empowered to investigate into a cognizable case. 

Section 53 is a tool of convenience. Rather than selectively choose powers to confer upon these other officers, through this clause the entire gamut of police powers gets vested upon the specific officers / classes of officers who are so notified in the official gazette. On top of which, one finds that Chapter V of the NDPS Act modifies some of these powers — such as search and seizure — from their generic form as found within the Cr.P.C.    

What we have then is three potential classes of persons who can investigate a case under the NDPS Act: (i) Ordinary police officers, whose powers are in no way taken away under the Act; (ii) Officers empowered under Section 53 of the NDPS Act; (iii) Other government officials, who are not notified under Section 53. For the first class of persons, there is no doubt that they will file a police report in court upon concluding  their investigation. Similarly, for the last category of officers, there is no doubt that they will file a Complaint, as a police report can only be filed by a police officer.

Which then leaves us with the middle category. Will an officer invested with powers of an officer in-charge of a police station, file a "Police Report" upon concluding the investigation, or a "Complaint"? Filing a police report would be to take the deeming fiction under Section 53 of the NDPS Act to its logical conclusion, perhaps. But then again, can filing a "Police Report" be called a power for it to be invested through Section 53? 

The NDPS Act Structure — Statements during Investigation

We now know that Section 53 of the NDPS Act confers the entire gamut of police powers detailed under the Cr.P.C. upon specific officers / classes of officers, and it is the status of these officers — whether they are "police officers" — which is the focus of the first issue in the Tofan Singh reference. 

At the same time, the NDPS Act also contains provisions which modify these police powers to a certain extent. In this regard, consider the power to record statements, which is provided under Section 161 of the Cr.P.C., which would be conferred upon the empowered officer. These general powers coexist with Section 67 of the NDPS Act, which is at the heart of the second issue in the Tofan Singh reference.

67. Power to call for information, etc.— Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act,— (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case.

Note that: (i) Section 67 does not confer any power to record statements on oath; (ii) It does not render the questioning to be a "judicial proceeding"; (iii) It does not contain any clause requiring that the person giving the statement is to be warned about its consequences, and (iv) Section 67 is not complemented by a clause like Section 163 of the Cr.P.C., which prohibits officers from coercing / inducing persons to give statements. 

On my reading of the NDPS Act, this "officer referred to in Section 42" referred to in Section 67, will often be one who is empowered under Section 53 of the NDPS Act, in which case Section 67 might seem rather superfluous as these officers already have the power under Section 161 Cr.P.C.

Or, maybe not. Take a look at Section 53-A of the NDPS Act:

53A. Relevancy of statements under certain circumstances.— 

(1) A statement made and signed by a person before any officer empowered under section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,— 

.... 

(b) when the person who made the statement is examined as a witness in the case before the court and the court is of the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. ...

This clause brings about two big changes to the ordinary powers of a police officer to record statements: 

• First, the powers of a police officer do not extend to taking signed statements — this is explicitly barred by Section 162(1) of the Cr.P.C. However, Section 53-A(1) refers to a statement "made and signed" before the officer empowered under Section 53, which clearly lifts that bar, and indirectly tells us that these signed statements will end up being recorded under Section 67 instead. 
• Second, the use of statements recorded under Section 161, Cr.P.C. is severely limited by Section 162, which prohibits statements given to police officers from being admitted in evidence for anything other than contradicting a witness. But Section 53-A(1)(b) throws this out the window, and permits statements made to be treated as substantive evidence if the court deems it necessary "in the interests of justice". 

I'll return to Section 53-A when discussing the issue of whether or not Section 67 can be the source of recording confessions, which is the second issue posed in the Tofan Singh reference (Curiously, the 2013 judgment does not mention Section 53-A anywhere).

Conclusion and Next Post

This post sought to give some context for the reference in Tofan Singh. It showed that the NDPS Act framework is complex, and the ultimate issues before the Bench are very specific to this statutory context. At the same time, the post also flagged certain factual inconsistencies that are material in nature as those findings of fact will determine the application of the legal principles in question. It is to these legal principles that the next two posts will turn. First, the first issue of whether Section 53 officers are "police officers" will be considered, and then we will look at a related issue of whether Section 67 can be the source of confessions. Finally, there will be some concluding critical thoughts.    

The Tofan Singh Reference is Back

On 17.01.2019, this blog had carried a post about a case called Tofan Singh. I'm going to simply extract the introductory portion from that post below to explain just what is it about:

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:

• 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]?
• 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.

The wheels of justice often grind very slowly, and it so happened that my prediction about a judgment in Tofan Singh coming in / around January of 2019 proved to be quite off the mark. But, a year and a half since then, the Supreme Court has issued a notice informing us that the matter has now been kept for final arguments on 18.08.2020, and it will be heard by a bench presided over by Justice Nariman. This has led to some discussion starting on the issues involved in the case (for example, see here and here). 

While this blog had already discussed the case and the issues in the post referred to above, I thought it still might be worthwhile to revisit the topic, and this time do it over a series of posts. So, in the next post, I'll give a brief background to the facts in Tofan Singh and explain the structure of the NDPS Act to understand just what's at stake. After that, we will look at the two questions over separate posts, and then a concluding post will follow.

(As an aside, for anyone interested in a deep dive into the very fascinating question of who is a "police officer" for purposes of the Indian Evidence Act rule rendering confessions to police officers inadmissible, here's a link to a paper I'd written some time ago which might be of interest).      

Mobile Phones and Criminal Investigations

I've put out a short primer / paper (made with friends) explaining the basics about mobile phones and criminal investigations. This is meant to help convey the legal issues that arise in context of the following: (i) seizure of a phone by police; (ii) police compelling the person to unlock the phone, and; (iii) police accessing the contents of a phone.

Broadly, the takeaways are:

• Police have broad powers of search and seizure which they can use to seize a mobile phone during an investigation, which is treated just like any other object;
• There is greater ambiguity in the law that might authorise regular police, and courts, to compel individuals to provide passcodes and / or open locked devices by using biometric ID;
• There are no prior limits on the use of the seized phone and the kinds of content that might be accessed;  
• There are legal limits present under statutes that serve as avenues to restrain these powers. The misuse / abuse of these powers also threatens possible violations of the fundamental rights to privacy and that against compelled self-incrimination;
• However, the value of legal tools to contest seizure of mobile phones and / or any compulsion used by police in getting them unlocked, is often lost due to the situational dynamics in which the law operates. The power differential between police and a witness / suspect inside a police station is simply too much to bear and results in most persons unlocking their devices. The myriad difficulties in holding police officers to account, and quickly, only makes this worse. 

To put it simply: The police can take away almost anyone's phone if they think it might be useful to the investigation, see anything inside it without accountability, and the law confers potentially useful rights against compelled testimony which often don't matter inside the confines of a police station. 

At a time when a mobile phone is a close substitute for real life, the many problems posed by the status quo are not too difficult to imagine. For starters, the problems from ordinary life will obviously be replicated: investigating agencies will have to draw inferences from conversations and thus might impute criminal intent where none existed. 

But, given the massive amounts of information floating on a mobile phone, they bring their unique problems to the table. For most people, real life is never squeaky clean, and so it is safe to imagine that their phones reflect this reality. So by having relaxed laws that permit easy seizure of mobile phones, and having almost no legally defined limits on what the police can do with these devices once they've seized them, we create a situation where the police can go on a roving and fishing inquiry to find leverage against a person to either make her say things against her will. 

The document suggests some avenues for reform, but there are no short-term fixes to what is only a reflection of a broader, systemic, malaise. Let me explain how.

Sir James Fitzjames Stephen thought that having a law that excludes confessions made to the police was necessary in India because for them "it is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence." Amazingly, the law regulating investigations has changed little from Stephen's time. The past 150 years have taught us that without drastically improving the resources for policing, mere legal rules can do little to stop coerced confessions / statements and improve the quality of investigations. 

A police force that is short on money and staff, but pressed for time to deliver results, is always going to find shortcuts to give the public an answer. The risks of a fallout are also minimal, since any eventual unravelling of a case only happens many years after an investigation is completed, by which time nobody is around to blame. It is perhaps inevitable for the situation to get worse now, as mobile phones have meant that police don't need that proverbial red pepper anymore.

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.