Coercive Powers in Tax Matters - The Judgment in Radhika Agarwal v UOI

On 27.02.2025, a Three Justices' Bench of the Supreme Court delivered its verdict in a large batch of petitions which raised issues about the manner and exercise of the power of arrest without warrant under the Customs Act 1962 and the Central and State GST Acts. The judgment, reported as Radhika Agarwal v. Union of India & Ors. [2025 INSC 272 ('Radhika Agarwal')], consists of two opinions — one penned by the CJI for himself and Justice Sundresh, and a separate, mostly concurring, opinion by Justice Trivedi for herself. 

This post will engage mainly with the majority opinion and its two main themes: (i) applying the Criminal Procedure Code 1973 [Cr.P.C.] to warrantless arrests made under the Customs Act and GST Acts, and (ii) regulating exercise of warrantless arrests under both these acts. There are some smaller issues / aspects, which I take up under a 'Miscellany' head. The post then turns to the separate opinion of Trivedi J. where I try and explain its synergy, and dissonance, with the majority opinion. A small concluding section ends the post.

Extending the Cr.P.C. to Warrantless Arrests under Revenue Laws

Radhika Agarwal unambiguously extends Cr.P.C. provisions regulating warrantless arrests by police to the exercise of such powers under the Customs Act / GST Acts by revenue officials. This means that officers conducting arrests must wear clear badges, must inform relatives about arrest, maintain diaries to note progress of investigation, furnish grounds of arrest in writing to an accused prior to them being taken before a magistrate for further custody, and allow the arrested person to meet with legal counsel during interrogation (though not for its entirety) [Paras 23-28]. 

One may reasonably argue that this extension is hardly a perceptible shift, as practically all of the above requirements were already being adopted by the relevant departments. The argument about extending the Cr.P.C. regime to arrests under the Customs Act / GST Acts regime was not to make sure that officers wear name tags while arresting persons — nobody goes to Court for that. The gain for petitioners and accused persons here was to firstly get clarity on whether Section 41-A Cr.P.C. applies to arrests under the Customs Act / GST Acts, and secondly get a ruling that officers conducting arrests under the special laws are police officers, which in turn would impact the evidentiary value of any statements recorded by them. On both these aspects, Radhika Agarwal rules in favour of the Union on my reading — slightly ambiguously in respect of the Section 41-A issue, and very resoundingly on the 'police officer' issue. 

Section 41-A Cr.P.C. pertains to issuing notices to join an investigation. It has been used by the Supreme Court to foster a regime where today, for offences up to seven years, ordinarily such notices are sent to secure the cooperation of accused persons as opposed to rushing for an arrest. Extending it to the Customs Act / GST Acts regime would, in turn, help in staving arrests as most offences under these special laws are punishable up to seven years. Interestingly, the majority opinion in Radhika Agarwal is entirely silent on whether Section 41-A Cr.P.C. applies to the Customs Act / GST Acts regime on arrests. What to make of this? Technically, since Section 41-A is pre arrest and the judgment is concerned with post arrest issues, one may argue that the issue is left open. At the same time, nothing stopped the Court from looking at the clause, especially since the judgment refers to neighbouring Sections 41-B and 41-D of the Cr.P.C. It is fair to say that this issue may yet be litigated further. 

Moving on, Radhika Agarwal decisively rejects the contention that officers arresting persons under the Customs Act / GST Acts regime are 'police officers'. It does not on the strength of its own reasoning, but by relying purely on precedent which recognised this distinction. This precedent has been extensively discussed elsewhere on this blog here, and in a paper here, with my view being that the distinction needs to be revisited. That the Court chose not to do so is a win for the government, since treating such officers as 'police officers' would have dealt a bodyblow to the evidentiary value of statements recorded by them during the course of an inquiry or investigation. 

Nevertheless, reading Radhika Agarwal I wonder just how long this artificial distinction between officers will continue to hold the field, at least when a person is arrested. Since the 1960s, which is when the Constitution Bench decisions creating this artificial distinction came, the law has not remained static. A big change has been the shift in judicial perspective. The older cases took a formalist and hyper-technical approach to the issue to play a game of spot the difference where if even one facet from the Cr.P.C. regime on investigations was absent from the special law, that meant the officers under special laws were not seen as police officers for any purpose. Over time, this formalist approach gave way to a judicial perspective focusing on the impact of coercive action on life and liberty, especially when it comes to arrests. Radhika Agarwal also adopts this approach and uses it to further bridge the gap between arrests by ordinary police officers and revenue officers by extending the Cr.P.C. explicitly to the latter. 

Warrantless arrests are a serious infringement with personal liberty. The gravity of this infringement does not alter on the basis of the department in question. Nor is there any difference in the consequential impact of arrests. If the evidentiary value of statements by arrested persons to regular police officers is deemed sketchy, nothing inherently changes the reliability of such statements by arrested persons when they are made to revenue officers. One hopes, therefore, that at least in the context of arrested persons, a bench of the Supreme Court will soon have the courage to simply apply the Duck Test, and treat all officers with the power of arrest without warrant as belonging to one category.

Regulating the Exercise of Arrest Powers

Unsurprisingly, the majority opinion in Radhika Agarwal extends the judicial approach recently taken by the CJI in Arvind Kejriwal [(2025) 2 SCC 248] which sought to regulate warrantless arrest powers under the Prevention of Money Laundering Act 2002 ['PMLA']. The PMLA arrest provision is quite similar to the Customs Act / GST Acts clause, allowing for easy transplantation. Essentially, this approach consists of two conjoint parts. First, an insistence upon rigid compliance with the statutory tests for warrantless arrests, and second, recognising that the exercise of this arrest power is amenable to judicial review.

The statutory test for warrantless arrest under the Customs Act / GST Acts has been reduced to a threefold exercise for ease of understanding: (i) the officer must have material in his possession, (ii) this material must be the basis to form 'reasons to believe' which are recorded in writing, that (iii) the person is guilty of having committed the alleged offence. Following Arvind Kejriwal, each of these three parts is developed by the Court in a way to ensure that the arresting power is not arbitrarily used. Thus, the 'material' must be translatable into legally admissible evidence and consist of all the material available and not deliberately exclude material that favours the accused. The 'reasons to believe' recorded in writing must be lucid and clear, and must be shared with persons. Lastly, the legislative mandate in requiring for reasons to believe a person is 'guilty' of the alleged offence suggests a higher threshold as compared to arrests governed by the Cr.P.C. provisions which prescribe a lighter test in the form of requiring only a reasonable suspicion (more on this later). 

A little more time must be spent on the recording reasons part of the exercise here. The warrantless arrest power under the Customs Act / GST Acts regime is not recognised for all crimes. Instead, it triggers only if a certain monetary threshold is crossed (in most cases). For instance, only if the alleged tax intentionally evaded by the accused is beyond 5 Crores does the warrantless arrest power come alive under the GST Act. What Radhika Agarwal clarifies is that the recording of reasons must also explain on what basis has an officer decided that the monetary threshold was crossed. While this is undoubtedly a significant move, the Supreme Court does not go quite as far as the Delhi High Court had back in 2016, when in context of service tax laws it had restricted the warrantless arrest power as contingent upon a tax assessment order being passed quantifying the tax demand as crossing the monetary limit.

Significant also is the fact that the majority opinion deals with a contention that the threat of arrest was being used to coerce persons into paying tax dues. Obviously, the Court holds that arrest powers cannot be used to coerce persons into paying up, but it takes the issue a step further to hold that aggrieved persons can take their pleas to court and, if found true, then they would be entitled to refund of any dues so coercively paid. Whether this remedy is a meaningful one or not is difficult to say, considering judicial delays and the difficulty to establish coercion.

Which brings us to the second part of the regulatory exercise — judicial review of arrests. The existence of having statutory tests regulating the exercise of arrests is meaningless without the possibility of judicial review, and one reason for the Court to insist upon strict and documented compliance with statutory tests for arrest is to ensure fairer exercise of judicial review. At the same time, the majority opinion itself notes, in line with Arvind Kejriwal, that the review here is not a 'merits' review by, for instance, testing whether the material itself was correct or not. Rather, it is akin to judicial review of administrative action, allowing courts to step in if the action is, for instance, found to be entirely unreasonable, perverse, arbitrary, or is an action based on jurisdictional error. The import of proportionality analysis will aid this exercise. Though it must be flagged that a key issue within a proportionality assessment of whether the necessity of an arrest can be reviewed was referred to a larger bench in Arvind Kejriwal and remains pending.

I will return to the theme of judicial review when dealing with the separate opinion. Before that, a slight detour to cover some miscellaneous findings of interest. 

Miscellaneous Findings

There are some other notable points in the majority opinion, out of which I would want to flag two given their connection with the blog. First, the opinion has again remained faithful to precedent where it notes that persons who have received a notice to cooperate with the inquiry etc. under the revenue laws are not persons 'accused of an offence' for purposes of Article 20(3) of the Constitution. Second, the opinion notes that even though such persons may not be falling within the scope of Article 20(3), they can still avail of their remedies to seek anticipatory bail, where they can demonstrate that a threat of arrest exists. In doing so, the Court overrules the contrary view taken by some benches last year, which was also criticised on the blog here.       

The Separate Opinion

Justice Trivedi's short separate opinion is restricted only to expressing her views on the manner in which judicial review of the exercise of arrest powers ought to be conducted. Is it a concurrence, or a dissent, or yet another one of those separate opinions which is a bit of both? While on first blush it appeared that the third category is the safest bet, on a re-reading of her opinion I do believe that it is a concurrence which is merely emphasising the note of caution which is inherent in the majority opinion itself. At the same time, I also sense a divergence of views on a more fundamental aspect of what is the purpose of arrests in context of revenue laws. 

Justice Trivedi recognises the power of writ review in context of warrantless arrests, but urges that courts should ordinarily be 'loath' to interfere with use of the power by the concerned authorities under laws that concern serious financial crimes. Thus, while she agrees that non-compliance with the statute would be a valid ground for review, she cautions that this should not prompt courts to use a 'magnifying glass' to blow up minor procedural lapses on part of officers and confer undue benefits upon accused persons.

This, according to me, is just a more cautious way of expressing the same idea as the majority: do not go for a merits review, and do not interfere unless the decision is found perverse or arbitrary. Minor technical violations would not pass muster even under the Arvind Kejriwal standard, which Justice Trivedi does not disagree from specifically within her opinion. 

I would submit that a large part of Justice Trivedi's concerns, and the seeming differences in her view from the majority, stem from deeper differences in how the two opinions viewed the use of the arrest power. For the separate opinion there is a tight nexus between arrest and investigation, requiring a wider berth to be granted to agencies. Thus, one finds that Justice Trivedi urges caution while reviewing arrests because the investigation may be at a 'very nascent' stage. Whereas for the majority opinion, a legislative mandate that allows warrantless arrest only upon gathering material sufficient to form reasons to believe that a person is guilty of the offence assumes that an investigation has progressed to a degree. In fact, the majority opinion at one place in its discussion on the GST regime specifically notes that the arrest "cannot be made to merely investigate whether the conditions are being met." Thus, the arrest power in these revenue laws is not primarily used as an investigate tool, but a step later on in the inquiry and adjudicatory process. 

In this regard, while I understand the perspective of Justice Trivedi, it is understandable why the majority opinion does not begin from that standpoint. In rare cases, arrests in revenue laws may occur at a nascent stage and there the usual caveats may apply, but that is not the norm. After all, it is because arrests are not routine parts of investigations under revenue laws that courts have sustained the distinction between the traditional crime versus the revenue offence, and used this distinction to conclude that the revenue officers are not 'police officers'. The legislative mandate must be respected in full, and the majority opinion rightly does so.

Conclusion: Confronting Two-Track Justice

The majority opinion in Radhika Agarwal re-emphasises that the power of warrantless arrests is drastic. It places this perspective at the heart of its reasoning to adopt conclusions which, in the eyes of the Court, aim to assist in the better regulation of how this drastic power is exercised. In pushing for better regulation the Court implicitly admits that the current scenario was suboptimal. 

If the current scenario is indeed suboptimal, that calls for some pause to think and reflect. Throughout Radhika Agarwal we are reminded that the scheme for warrantless arrests under the Customs Act / GST Acts is different from the scheme governing such arrests for ordinary crimes made under the Criminal Procedure Code (now Bharatiya Nagarik Suraksha Sanhita 2023). The threshold under the special laws for exercising this power is higher than the threshold under regular criminal law, and what Radhika Agarwal does is to tighten the bolts even further to ensure better regulation. At the same time, the total number of persons arrested under the special laws (and we can even add the PMLA here) is incomparably lesser than persons arrested everyday under the Cr.P.C. / BNSS for ordinary crime. Not only this, but the demographic of persons ordinarily being arrested under both sets of laws is also incomparable. Those arrested under the special laws are, usually, the 'haves' with access to money and resources, whereas the ordinary criminal accused are the 'have-nots' who are struggling to make ends meet.

There is, in practically every legal system, a two-track system of justice: one for the 'haves', and another for the 'have-nots'. The law cannot completely rid the handicap that the have-nots suffer from because of their lack of resources and access to capital, but what a fair legal system can try and do is to make sure that it is designed to reduce the impact of this inequality. For instance, in context of warrantless arrests, a fair legal system would prescribe the same threshold for arrests under crimes traditionally linked only with the 'haves' — such as tax fraud — and the usual crimes which traditionally mostly ensnare the 'have nots' to ensure that the law is not compounding the ill-effects of the latent inequality. Instead, what we have, is the exact opposite in place. A two-track system of justice with an arrest regime having strong safeguards under laws that primarily concern the haves (made even more robust by court) and an arrest regime with weak safeguards when it comes to the 'have nots' ensuring their liberty remains imperilled. 

This is a manifest injustice at the heart of this entire regime governing warrantless arrests. Rather than the ordinary law being dragged down to further improve upon the safeguards for warrantless arrests in special laws, one hopes that future benches of the Supreme Court and High Courts use the good work done by judgments such as Radhika Agarwal to raise the standard even for arrests under ordinary crimes. A start has, arguably, already been made in recent judgments on supplying the grounds of arrest. While the first judgments were indeed under a special law — the PMLA — the subsequent judgments affirmed this rule as applicable to all arrests. One hopes that a similar effect is felt in context of the arresting power itself, to tighten the bolts around the 'reasonable suspicion' standard under the Cr.P.C. / BNSS as well. Such an outcome would ensure that the drastic power of warrantless arrests is better regulated in its application to lakhs of Indians, as opposed to the few hundreds who are alleged to be evading taxes. 

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 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 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 2: NDPS Investigating Officers are Police Officers?

(This post has been co-authored with Shashwat Bhutani and Rishabh Narain Singh)

This blog has introduced the scope of the reference in Tofan Singh and the statutory context of the NDPS Act. Which means that we can straightaway jump in to discuss the first question: Whether an officer who investigates a case under the NDPS Act is a "police officer", for purposes of Section 25 of the Indian Evidence Act, 1872. This provision, readers may recall, is the statutory prohibition upon using confessions against accused persons at trial. Essentially, then, if the officer investigating an NDPS case is a "police officer", then any confessions / statements made to her would be rendered useless from a trial perspective. 

 

This post will tease out the legal position that led to the Tofan Singh reference, and then argue for what the authors think is the correct approach to follow. 

Revisiting the Classics and "Officer in-Charge of a Police Station".

It might come as a surprise that there is no controlling definition of the phrase "police officer" in Indian law, especially considering the significance of the evidentiary bar mentioned above. But, alas, such is the case. However, courts have filled in this gap, and today it would seem that there is a fairly settled test to decide who can be called a "police officer".

Rather than adopt a "functional" approach, of the kinds on display in, say, the Three Justices' Bench decision in State of Punjab v. Barkat Ram [AIR 1962 SC 276] [whether Customs Officers under the Sea Customs Act, 1878 and / or Land Customs Act 1924, are “police officers” within the meaning of Section 25, and finding that they are not], and Raja Ram Jaiswal v. State of Bihar [AIR 1964 SC 828] [Officer under the Bihar and Orissa Excise Act 1915 is a "police officer"] both of which looked at the purpose for investing officers with coercive powers, the Supreme Court quickly turned towards endorsing a more formulaic approach. A Constitution Bench of the Supreme Court in Badku Joti Savant v. State of Mysore [AIR 1966 SC 1746], was concerned with whether an officer under the Central Excises and Salt Act 1944 would be a "police officer". The Court proferred a simple test to resolve the matter: a police officer is one who can file a police report / chargesheet; if not, then you aren't dealing with a police officer. This decision by Five Justices continues to control the field, and has been followed by subsequent benches (including Constitution Benches), in cases such as Romesh Chandra Mehta v. State of West Bengal [AIR 1970 SC 940] and Illias v. Collector of Customs, Madras [AIR 1970 SC 1065]. 

Rather than belabouring the point about this "Chargesheet Test", let us instead turn our gaze upon what lay behind those conclusions arrived at in Badku Joti Savant. In that case, provisions of the Central Excises and Salt Act were in issue, and the investigative / coercive powers of a Central Excise Officer were being considered. Section 19 dictated that any person arrested under the Act had to be forwarded forthwith to a Magistrate or an officer in-charge of the nearest police station. Together with this went Section 21, which said that:

"(1) When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. 

(2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police-station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case: ..." [Emphasis Supplied]

For a limited purpose, then, a Central Excise Officer was conferred the same powers as the officer in-charge of a police station. This deeming fiction was used as the prong to argue that the Officer had to be treated as a police officer. And, as we know, the Court in Badku Joti Savant disagreed with this claim. It held that the power under Section 21 was limited [21(2) starts with "For this purpose"], and did not confer all powers of a police officer upon the Excise Officer, and in this context made its observations about the Act not conferring powers of filing the report under Section 173, Cr.P.C. 

Towards this end, the Court also repeatedly distinguished these facts from those before it in Raja Ram Jaiswal, which was referred to above. The Court noted in Badku Joti Savant, that "In any case unlike the provisions of s.78(3) of the Bihar and Orissa Excise Act, 1915, s. 21(2) of the [1944 Act] does not say that the Central Excise Officer shall be deemed to be an officer-in-charge of a police station and the area under his charge shall be deemed to be a police station. All that s.21 does is to give him certain powers to aid him in his enquiry. [Emphasis supplied]" Thus, the Court implied that the findings in Raja Ram Jaiswal were correct, due to that statutory context. Let's therefore take a look at the kind of clause which the Supreme Court held could deem other officers to be police officers, even for purposes of Section 25 of the Evidence Act. 

"(1) Any Collector, or any Excise Officer empowered under section 77, sub-section (2), may after recording in writing his reason for suspecting the commission of an offence which he is empowered to investigate, exercise — 

(a) any of the powers conferred upon a Police Officer making an investigation, or upon an officer in charge of a police-station, by sections 160 to 171 of the Code of Criminal Procedure, 1898 (5 of 1898), and 

... 

(3) For the purposes of section 156 of the Code of Criminal Procedure, 1898 (5 of 1898) the area to which an Excise Officer empowered under section 77, sub-section (2), is appointed shall be deemed to be a police-station, and such officer shall be deemed to be the officer in charge of such station. 

(4) As soon as an investigation by a Collector or by an Excise Officer empowered under section 77, sub-section (2), has been completed, if it appears that there is sufficient evidence to justify the forwarding of the accused to a Magistrate, the investigating officer, unless he proceeds under sub-section (2) of this section or under section 68 of this Act, shall submit a report which shall, for the purposes of section 190 of the Code of Criminal Procedure, 1898 (5 of 1898) be deemed to be a Police-report to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on Police-reports." [Emphasis supplied]

The Court in Badku Joti Savant referred explicitly to Section 78(3) to distinguish this statute from the 1944 Act, to suggest that there were no limits placed upon the deeming fiction created under Section 78. At the same time, the Court surprisingly did not refer to Section 78(4) and its very specific terms about deeming the report to be a police report, which is what it seemingly took inspiration from in its ultimate holding. 

The NDPS Act Cases

The NDPS Act came in 1985, many years after the Chargesheet test in Badku Joti Savant. We have seen the statutory context of the NDPS Act in detail in the previous post — powers to investigate offences may also be conferred upon special officers under Section 53, and these officers may be conferred with powers equivalent to that of an officer-in-charge of a police station to hold the investigation. 

The question of whether an Investigating officer empowered under Section 53, is a police officer or not came before the Supreme Court for the first time in the case of Raj Kumar Karwal v. Union of India [AIR 1991 SC 45] [Case investigated by an officer of the Directorate of Revenue Intelligence empowered under Section 25]. The Court held that the legislature has drawn a distinction in the manner of initiating a case by a police officer and by an officer of central or state government, by virtue of Section 36-A (1)(d) of the Act. According to the Court, Section 36-A (1)(d), allows officers of the central or state government to only file a complaint. On the other hand, a police officer would file a charge-sheet to initiate such proceeding. Thus, these empowered officers of central or state government were not police officers as they do not fulfil the criteria laid down in Badku Joti Savant. 

Raj Kumar Karwal was also followed by the Court in the case of Kanhaiyalal v. Union of India [(2008) 4 SCC 668]. However, in Noor Aga v. State of Punjab [2008 (9) SCALE 681] a Division Bench of the Supreme Court digressed from these earlier decisions. It stated that Section 53 of the Act empowers the customs officers with the powers of the Station House Officers and officers invested with these powers by reason of a special statute in terms of sub-section (2) of Section 53, should be considered as police officers. However, soon after this, in Ram Singh v. Central Bureau of Narcotics [(2011) 11 SCC 347] the Court went back to the position in Raj Kumar Karwal and stated that Section 53 alone would not be sufficient to hold such officers as police officers as it does not confer the power of filing a charge sheet. However, the pendulum swung back again, when in Nirmal Singh Pehlwan v. Inspector, Customs [(2011) 12 SCC 298] as the bench in this case doubted the correctness of the holding in Kanhaiyalal and that line of judgments.

The result of all this confusion? A reference in Tofan Singh.

Why S. 53 Officers Must be Treated as "Police Officers"

The dichotomy within Section 36-A(1)(d), where it refers to both complaints and police reports, is what has led previous decisions to conclude that the officers of the central / state government which might be empowered under Section 53 are those who can only file a complaint. This, in our view, is an incorrect conclusion to draw.

The officers appointed under Section 53 fall within a larger subset of officers, as mentioned under Sections 5 & 7 of the Act. Section 5 defines the “officers of Central Government” and empowers the Central Government to appoint the Narcotics Commissioner as well as other officers for the purposes of this Act. Similarly, Section 7 defines the “officers of State Government” and empowers the state governments to appoint officers to carry out the purposes of the Act. The definitions given under both the sections are general and inclusive as they do not define which officers and of what designation will be appointed. 

Basically, the sensible way to read Section 36-A(1)(d) is this: while officers who are not empowered under Section 53 end up filing complaints, the report filed by empowered officers — who have been conferred with powers of an officer in-charge of a police station — should be seen as as a Police Report to give full effect to the deeming fiction created under Section 53. Not only does this degree of nuance help maintain the dichotomy under Section 36-A(1)(d), it also keeps the law in line with the tests laid out in the earlier Supreme Court decisions that we discussed above. If we look at the language of Section 53, it is not at all like that found in Section 21 of the Central Excises and Salt Act of 1944 inasmuch as there is no express limitation conferred upon the conferral of powers. Instead, Section 53 looks a lot more like Section 78 of the Bihar and Orissa Act of 1955. 

Such a reading also saves the relevant provisions of the NDPS Act from being assailed on an arbitrariness challenge. After all, if Section 53 makes empowered officers coequal in terms of their powers with regular police officers for all intents and purposes, and this was the legislative intent behind the provision, it is clearly arbitrary to render these officers exempt from the limitations on their powers that exist in law. If that were the purpose, the NDPS Act would very well have created clear deviations, as it has on so many other aspects by say enhancing powers of search and seizure under Section 42. More importantly, the NDPS Act already has created a statutory mechanism to override Section 25, and it does not rely upon an interpretation of the phrase "police officer" but instead involves a judicial determination about the interests served by admitting statements made to empowered officers. If the legislature had sought to simply remove the so-called shackles of Section 25, it would not have gone through all this trouble.

Conclusion

After thoroughly conducting an investigation, there are only two possible routes to initiate a case under an NDPS Act: upon the perusal of a “police report” or upon filing a “complaint”. Therefore at present, only a police officer can initiate a case by following the chargesheet-route, as other investigating officers do not have this power. If other officers have to initiate a case, they have no other alternative, but to follow the “complaint case route” because they cannot file a chargesheet. This conundrum can be easily be solved by reading Sections 36-A (1) (d) and 53 together. These two provisions will prove to be the decisive arrows in the statutory quiver if they are given a conjoint reading, as it will pave the way for the empowered officers to adopt the chargesheet route in order to initiate a case. 

Whatever might be our views about the "Chargesheet Test" laid down in Badku Joti Savant, a close reading of that decision shows how the Supreme Court did not advocate an entirely simplistic approach but still implored a careful reading of the statutory context involved in each case. In the case of the NDPS Act, Section 53 shows that the conferral of police powers upon other government officers is not limited by a specific purpose, and therefore the deeming fiction demands being given fullest effect to. We have also argued that such a reading is harmonious with the legislative intent behind the NDPS Act, and that any other reading would arguably be unconstitutional on arbitrariness grounds.

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.