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This article is written by Rishabh Shukla, pursuing B.A.LL.B (Hons) from the Maharaja Sayajirao University of Baroda, Faculty of Law. The article discusses and examines in detail the provisions of Section 67 under the NDPS Act. Furthermore, it digs into one of the most disputed questions of law involved in the cases of the NDPS Act. 

Introduction

The Narcotic Drugs and Psychotropic Substances Act, 1985, commonly referred to as the NDPS Act, is an Act passed by the Indian Parliament that prohibits an individual from producing/manufacturing/cultivating, possessing, selling, purchasing, transporting, storing, and/or consuming any narcotic drug or psychotropic substance. Indians are possibly at high risk of illicit drug use inferable from propinquity with the significant poppy-growing regions, with the golden triangle lying in the northeast and the Golden crescent lying in the North-west. The area’s amicable climate with the medications makes India one of the largest consumer bases of various substance abusers. To maintain the normality amongst the people, the Narcotic Drugs and Psychotropic Substance Act, 1985 was introduced for the illicit drug use control in the nation, and the peculiarity of the same was fixed in the Narcotic Drugs and Psychotropic Substance (Amendment) Bill, 2011.

This article is a preliminary analysis of Section 67 of the NDPS Act, a provision that inter alia, by the virtue of Section 53 of the Act empowers an officer, during the course of any probe in connection with the Act, to be authorised to summon and examine any individual, including an accused, who is well versed with the facts and circumstances of the case, and to summon and call for information/records concerning with the contravention of any provision of the Act. It is pertinent to note that if a statement made by an accused to an officer empowered under Section 67 of the Act, then such statement will be admissible as evidence. It must also be noted that the provision is silent on the aspect of questions tending to expose the person to criminal charges and on statements amounting to confessions.

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Scope of the article

This article does not discuss and examine all the provisions of the said Act, but it digs into one of the most disputed questions of law involved in the NDPS cases. These questions are as follows:

  1.  Whether or not the powers that are granted to an empowered officer under Section 67 of the NDPS Act are connected, and in pari materia with the powers that are granted under Section 161 of the Code of Criminal Procedure, 1973?
  2. Whether or not the empowered officer is competent to record the confession of the accused under Section 67 NDPS Act?
  3. Whether or not the confessional statement that is made by the accused before the empowered officer under Section 42 of the NDPS Act is admissible as evidence? If yes, then whether or not can it be used against the accused himself along with the co-accused?

Whether empowered officers Under NDPS Act can be termed as police officers 

A “police officer” does not necessarily have to be an officer of police in the narrow view of being a person who is a designated police officer, attached to a police station. The question as to who is referred to as a ‘police officer’ has been an irksome issue that has been subject to litigation because of the fact that it is not clearly defined under any statute. The Apex court, over the years, has been dealing with this issue on a case-by-case basis. Different benches of the Apex Court of coordinate strength have often swung like a pendulum in determining this question. In a series of judgments, a broader view has been accepted and till date, never contradicted.

Relevant case laws

In the case of Toofan Singh v. State of Tamil Nadu, (2020), it was held that “Where an individual who is not a police officer appropriately so-called is vested with all the powers of investigation, which lead to the filing of a police report, such officials can be referred as police officers within the definition of Section 25 of the Evidence Act, 1872 as when they detect and prevent crime, they are in a position to forcefully extract confessions, and thus are able to accomplish their goal through an alternate strategy of drawing out involuntary confessions.” It was additionally held that in order to draw out the conclusion that the confessional statement made before an officer who is designated under Section 42 or Section 53 can be the sufficient ground to detain a person under the NDPS Act, without any non-obstante provision doing away with Section 25 of the Evidence Act, and without any safeguards, this would be a direct infringement of the constitutional guarantees laid down under Article 14, Article 20(3), and Article 21 of the Indian Constitution.

In the case of Raja Ram Jaiswal v. State of Bihar, (1963) it was held by the Hon’ble Supreme Court that under the Bihar and Orissa Excise Act, 1915, the excise officers are considered to be ‘police officers’, thus resulting in confessions statements made to them inadmissible in light of Section 25 of the Evidence Act. In the case of Badku Joti Savant v. State of Mysore, (1966) it was held by a constitution bench of the Apex Court that central excise officers were not considered to be police officers under the Central Excise and Salt Act, 1944. In the case of Raj Kumar Karwal v. Union of India, (1990) while deciding the question of a police officer in the context of the NDPS Act, 1985, the Supreme Court held that officers of Department of Revenue Intelligence cannot be considered to be police officers for the purpose of Section 25 of the Evidence Act. In the case of Kanhaiyalal v. Union of India, (2008) the ratio of the Karwal case regarding confessions by virtue of powers mentioned under Section 67 of the NDPS Act was made applicable to officers as well. This judicial disbalance continued in the case of Noor Aga v. State of Punjab, (2008) wherein it was held that officers of NCB are in fact considered to be ‘police officers’.

Admissibility of the confessional statement under Section 67 of the NDPS Act

September 16th, 1985, was the date when the legislature of India effectively laid down the Narcotic Drugs and Psychotropic Substances Act, 1985, in order to make severe provisions for the control of activities concerning narcotic drugs and psychotropic substances, to execute the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances, and to accommodate the relinquishment of property derived from, or used in illegal trafficking under the narcotic drugs and psychotropic substances. Till date, certain numbers of amendments have been incorporated in the Act with the purpose of making it more efficient and achieving the object of the Act. 

Section 67 of the Act deals with the power to call for information, etc. According to the Section, any officer referred to in Section 42 of the Act, who is competent to be authorised on this behalf by a State Government or the Central Government, during the course of any enquiry in connection with the contravention of any provision of the Act, may:

(a) For the purpose of assuring himself, call for information from any person, to know whether or not there has been any contravention of the provisions of the Act, or any rule or order made thereunder.

(b) Require any person to deliver or produce any document or material that might be relevant or useful to the enquiry.

(c) Examine any individual who is well acquainted with the facts and circumstances of the case.

From the analysis of Section 67 in affinity with the whole provisions of the Act, it is evident that there is no power authorized to the empowered officer to record the confession of the accused, and if recorded, then, in that case, its admissibility is questionable. Unlike the Terrorist and Disruptive Activities Act, 1987, the NDPS Act is completely silent on the recording of confession or making such confession admissible according to the law. Yet, the said Section 67(c) empowers the officer authorised under Section 42 to examine or inquire any person who is well acquainted with the facts and circumstances of the case. Now the question that arises is, does the word ‘any person’ express the term accused as well? Also, why did the Indian legislature insert the word ‘enquiry’ in Section 67 of the Act instead of the term ‘investigation’?

The NDPS Act nowhere explains the word ‘enquiry’. The literal meaning of the word enquiry is an act of asking for information in the process of conducting an official investigation. However, the officer who is empowered under Section 42 of the NDPS Act has no authority to investigate the offences under the NDPS Act. Officers empowered under Section 42 only have the authority to enter and search the premises, seize the contrabands and arrest the person who is believed to have committed the offence under the NDPS Act. Such power of investigation or examination of an offence can only be handled by the officer-in-charge of the police station under whose jurisdiction the offence is committed under Section 156 of the Criminal Procedure Code.

Nonetheless, Section 53 of the NDPS Act provides authority to the Central or State Government to delegate powers of an officer-in-charge of a police station regarding the investigation of offences under the NDPS Act, by issuing a notification in the Official Gazette. If a particular officer is not appointed by the government then, the powers of investigation must be exercised only by the officer-in-charge of the local police station.

From the discussion made hereinbefore, it can be deduced that the term ‘enquiry’ is used under Section 67 of the NDPS Act for the circumstance where enquiry is needed prior to conducting the proceedings laid down under Section 42 which permits for entry, search, seizure, and arrest, and not the investigation. Such a contention can be strengthened with the provision of Section 52(3), which requires the officer under Section 42 to take the person to the officer-in-charge of the nearest police station, or to the officer empowered under Section 53, along with the substances seized. 

In this manner, it can be concluded that the word ‘any person’ used under Section 67 cannot be, in any circumstances contemplated to include an accused person as before the said procedures under Section 42 by the empowered officer, such person can never be in the custody of that respective officer. In addition to the legislature, the term ‘enquiry’ is mentioned in the said section rather than the word ‘investigation’, which additionally features the intention of the legislature to limit the use of Section for the enquiry under Section 42 only, and not for the investigation of offences under the act. 

This results in the appropriate answer to another question that the power under Section 67 is not similar to the power under Section 161 of the Code of Criminal Procedure, as the power under Section 161 of the Code can be utilised over the span of an investigation by the officer-in-charge of the police station, although, the power under Section 67 of NDPS Act can be exercised only by the officer empowered under Section 42 of the NDPS Act which aims to achieve object and purpose of Section 42 only, not in any other case. It implies that no confession can be recorded under Section 67 by an empowered officer under Section 42. Although, any confession, if any, under the NDPS Act can be recorded exclusively by an officer-in-charge of the police station who is conducting the investigation or by an officer who is appointed on his behalf under Section 53 of the NDPS Act.

Section 67 of the NDPS Act vis-à-vis Sections 161 to 164 of the CrPC

The term “enquiry” mentioned in Section 67 is not the same as the term “investigation.”

Section 67 is the precursor stage to “investigation”, which happens after the concerned officer under Section 42 has enough “reason to believe”, on the basis of information gathered in an enquiry made on that behalf, that an offence has been committed.

The term “examination” mentioned in Section 67 cannot be connected to the term “statement” mentioned in Section 161 of the CrPC.

As per Section 67(c) of the NDPS Act, the term used is “examine” any person who is well acquainted with the facts and circumstances of the case. The “examination” of such a person is again only for the purpose of accumulating information so as to assure himself that there is a “reason to believe” that an offence has been committed. This can, not by any stretch of the imagination, be related to the term “statement” mentioned in Section 161 of the CrPC.

Certain safeguards are provided under Sections 161 to 164 of the CrPC to the accused

Under Section 163(1) of the Code of Criminal Procedure, no threat, inducement, or promise, as has been laid down under Section 24 of the Evidence Act, can be made to coerce such a statement from a person. Further, if the confession is supposed to be recorded, it can only be recorded according to the manner as laid down in Section 164, i.e., before the Court of Magistrate and the statement should additionally be recorded by audio-video electronic means in the due presence of the Attorney of the person accused of an offence.

The confession of an accused can exclusively be recorded once the Magistrate confirms to the person making the statement that he is, in no manner, compelled to make a confession and that, after the knowledge of the situation, it can be used as evidence against him in the court of law. The Magistrate must then make a memorandum at the foot of the record, stating that he has warned the concerned person that he is not bound to make any such confession and it may be used against him as evidence. Most significantly, the Magistrate is vested with the judicial authority to administer the oath to the person whose statement is so recorded. 

Thus, ideally, a proper police officer must investigate an offence under the NDPS Act. That way, all the safeguards that are laid down in Sections 161 to 164 of the CrPC would be available to the accused. Although, if the same police officer or any other officer designated under Section 42 of the Act records confessional statements under Section 67 of the Act, these safeguards would be tossed in the winds. 

Conclusion

All these contentions without any doubt state that if a person is detained or is in the custody of any of these officers or the department for the infringing of the NDPS Act, then such officers are deemed to be considered as police officers. Nonetheless, any confessional statement that is recorded by them in the due course will not be considered permissible as evidence in contradiction of the person. As of this date, it has become very rigorous for the officers to prove their case, and they have to strive harder than before.

It will not only be restricted to the matter of just confessional statements, but also the recovery of the statements of the autonomous witnesses, the testimony of the concerned department of the officers, the sample report, and the purity report. All these things will hold more significance from now onwards. There is a list of offences along with the concerned court as mentioned in the Code of Criminal Procedure, but the NDPS Act provides “Special Courts” that are governed by the judges who hold the rank of no less than an Additional Session Judge (ADJ) to supervise these cases. So no cases other than cases of narcotics are to be heard in these courts.

References

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