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

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

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

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

The Tofan Singh Ratio

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

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

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

The Backdrop Of Samarth Kumar & The Jurisprudence After

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

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

The Law & The Trouble

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

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

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

Balancing the Scales

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

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

Conclusion

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

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 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 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. 

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).      

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 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.