In this article, Pranav does A comparative analysis of the Narcotics Drugs and Psychotropic Substance Act, 1985 and The Indian Evidence Act, 1872.
The Indian Evidence act and the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS act) are two very different pieces of legislation. The Indian Evidence act provides for the types of evidence that can be relied upon by the courts, the evidence which the courts cannot look at and also the age that is to be given to the evidence. The NDPS Act, on the other hand, was enacted in the year 1985 in order to curb the growing menace of drugs in the country. The NDPS Act has certain provisions which overlap with certain provisions of the Indian Evidence Act, in this paper, we look at two such overlapping aspects, one is the provisions for search and seizure, the other is the aspect of confessions. Sections 40, 42 and 50 are the provisions for search and seizure in the NDPS act, and in many cases the Hon’ble Courts have held that strict application of these provisions needs to be there for the evidence obtained to be admissible before the court, with the help of relevant case laws we will see the conflict between the two legislations in this aspect. Secondly we have Section 67 of the NDPS act which talks about confessions, now the question arises as to whether section 25 of the Indian Evidence Act which is applicable to the confessions made to a police officer under the Indian Evidence Act would be applicable to the NDPS act as well. In this paper we seek to answer these questions with an analysis of the relevant provisions and the relevant case laws and look at the overlapping between the two legislations.
The process and the basis of admissibility of the seized substance under the NDPS Act and the Indian Evidence Act stand on two different. The study highlights the differences between the and the rationale behind the same. The law under NDPS Act is devoid of a single and standard interpretation as to what would be regarded as admissible with regard to a search and seizure, the judicial pronouncements have therefore played a significant role in bringing a uniformity in the special legislation. The papers also throws light on the principle of onus of proof, which as a general rule of criminal law lies on the prosecution, however, the same principle has been applied in reverse under the NDPS Act.
Confessions
Section 67 of the NDPS act reads as,
“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.”[1]
Section 25 of the Indian Evidence Act reads as,
“Confession to police officer not to be proved.—No confession made to a police officer1, shall be proved as against a person accused of any offence.—No confession made to a police officer1, shall be proved as against a person accused of any offence.”[2]
This provision implies that confessions made to a police officer are inadmissible as evidence in a court of law as there is always a possibility that it may have been obtained by coercion. Now the question arises as to whether this provision would be applicable to information obtained by the officer exercising his power obtained by way of Section 67 of the NDPS Act.
Another question that arises from this Section is whether the officer so empowered under the NDPS Act qualifies as a police officer so as to attract the ire of Section 25 of the Evidence Act.
These questions have been answered by the Supreme Court of India in a number of cases which we shall analyse in order to answer these questions convincingly. First is the case of Kanhaiyalalv. Union of India.[3]
In this case the Assistant Narcotics commissioner received news that opium was being smuggled, based on this information a raiding party was appointed and duly sent to the suspected place, upon reaching the place in question they saw that two persons were sitting near a well with 3 bags, upon seeing the raiding party one of the accused ran away. After this the raiding party questioned the remaining accused and searched the 3 bags from which opium was found. This accused identified the other two persons involved, one of whom was Kanhaiyalal who was later summoned before the investigating officer, who recorded his statement in which Kanhaiyalal confessed. Later he retracted his confession and thus the question as to wether Section 67 would invoke the ire of Section 25 of the Indian Evidence Act.
In this case theHon’ble Supreme Court of India held that, “
“Since it has been held by this Court that an officer for the purposes of Section 67 of the NDPS Act read with Section 42 thereof, is not a police officer, the bar under Sections 24 and 27 of the Evidence Act cannot be attracted and the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person. Since a conviction can be maintained solely on the basis of a confession made under Section 67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant.”
From this judgement it can be ascertained that the officers empowered under Section 42 of the act would not qualify as police officer and thus would not attract the penalty of Sections 24 to 27 of the evidence act.
The Court has in MohteshamMohd. Ismail v. Spl. Director, Enforcement Directorate[4] held as under, “We may, however, notice that recently in Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram this Court has emphasised that confession only if found to be voluntary and free from pressure, can be accepted.
A confession purported to have been made before an authority would require a closer scrutiny. It is furthermore now well settled that the court must seek corroboration of the purported confession from independent sources.“
Thus even though Sections 24 to 27 are not attracted, the courts still need to ensure the validity of the confession in order to ensure no injustice is meted out to the accused.
In 2009 the Hon’ble Court in Noor Aga v. State of Punjab[5] differed from the earlier view and held that custom officers empowered under the NDPS act would qualify as Police officers and thus Section 25 of the Indian Evidence act would be applicable to statements recorded under this section. In this case the court talked about how the presumption with respect to the innocence of the accused must be respected at all times and the court held that customs officers must be deemed to be police officers here as a special statute invested them with powers of an officer-in-charge of a police station. Since legal fiction must be given full effect, and section 25 must be applicable to confessions made before such officers as well.
Thus in this case we saw a change in the ideology of the Supreme Court as it took a restricted view so as to include the officers so empowered under the ambit of Section 25.
In 2011 in the case of Ram Singh v. Central Bureau of Narcotics[6], the court stated that S. 53 alone would be insufficient to hold officers of the Narcotics Bureau as police officers since it did not confer the necessary power of filing a charge sheet. However, the judicial see-saw turned to favour the conclusions of Noor Aga.[7]
In this case the court held that the officers could not qualify as police officers since they did not have the power to file a charge sheet under section 173 of the Crpc. The court decided that, “it is clear that a statement made under Section 67 of the NDPS Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act.”
With respect to the applicability of Section 24 of the Indian Evidence Act, the court decided that, “
“From the plain reading of the aforesaid provision it is evident that a confession made by an accused is rendered irrelevant in criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, threat or promise with reference to the charge against the accused. A confession, if it is voluntary, truthful, reliable and beyond reproach is an efficacious piece of evidence to establish the guilt of the accused. However, before solely acting on confession, as a rule of prudence, the Court requires some corroboration but as an abstract proposition of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made under Section 67 of the Act.”
Thus from this extract, we can establish that the statements recorded under Section 67 of the act can theoretically be enough to convict an accused but in almost every case there would be a need for corroborative evidence to support such statement.
The current position is that only those officers empowered under law to carry out investigation and file a charge sheet would qualify as police officers for the purpose of Section 25 of the act, but this stance has certain repercussions. There exists a latent fear of abuse of the power by the officers so empowered to extort confessions from the accused. The whole purpose of Section 25 is to remove the possibility that the confession has been obtained as a result of coercion. This is why the Calcutta High Court in S. Fernandez v. State was so explicit in its disapproval of considering the power of investigation as the governing test in applying Section 25[8]; similar thoughts were echoed by Subbarao J. in his dissent in Barkat Ram. Where powers of arrest, detention, search and seizure are conferred upon officers, but the entire catalogue of investigative powers of police officers are not, a refusal to extend Section 25 to such circumstances patently defeats the object of the provision.[9]
Even if we assume that there is merit in this view of keeping investigative powers as the bar to determine the liability of the officer, the step of singling out the power to file the charge sheet as the test still doesn’t make sense. A charge-sheet would enable the Magistrate to take cognizance and ultimately begin trial. Therefore, for the Apex Court, all other powers of investigation made little difference if the power to prosecute is absent. Apart from the obvious certainty ushered in by such a test, I believe it provides little value otherwise. This test has its downfalls.
Firstly, adhering steadfastly to such a rigid notion of who can be a police officer makes the Court ignorant to obvious legislative conferrals of power. In the Raj KumarKarwal, Section 53 of the NDPS Act had given the officer powers of a station house officer for investigation of offences. The Court, however, did not consider this sufficient to apply Section 25, as the power to file a charge-sheet was not vested with the officer.[10] This went directly against an earlier judgements, including the earlier Supreme Court decision in Jaiswal.[11] I believe that the decision given in the Noor Aga case should be seen to be the authority in this question and that view should be reiterated by the Supreme Court.
This is the stance with regard to the relation between Section 25 of the Indian Evidence act and Section 67 of the NDPS act.
Admissibility of Seized Substances
The admissibility of the contraband substance under Section 50 of the NDPS act is covered with a blanket of complexities. The substance seized under Section 50 has to be under strict compliance, and in failure to comply with the same the material would lose its evidentiary value.
A Sub-Inspector who was present on platform for checking smuggling and other antisocial elements, on suspicion, nabbed him and found that he was carrying poppy straw weighing 7 kgs. in the bag. It was held that the Police Officer had neither information, nor knowledge nor reason to believe that the offence under the NDPS Act had been committed and therefore section 50 was not applicable.[12] The prior acts of the police authority also form a part of the fact. The essence of the same makes a seizure process admissible or inadmissible before the court of law. The SC further held that the police in those circumstance could have reason to ‘suspect’ that some contraband could be found but they had no ‘reasons to believe’ that contraband could be found; suspicion cannot be equated with reasons to believe.[13]
Section 114 illustration e of The Evidence Act cannot be pressed into service to raise a presumption that Section 50 was complied with.[14]It was also considered and the argument that the contraband seized during an illegal search could still be used to prove possession of narcotic drug, was rejected in the matter of Ali Mustaffa Abdul Rahman Moosa v.Kerala.[15] It is, therefore, evident that the non-compliance of the evidence would make the seizure process illegal and the same could vitiate the trial. Therefore the same would lead to acquittal of the suspect.
However a trial solely on the basis of the Evidence Act lies on the different horizon. The legality of the seizure process is not in issue even when the evidence has been illegally collected. Evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act[16]. There is warrant for the proposition that even if evidence is illegally obtained, it is admissible.[17]The validity of the the seizure is not effected, at the most it can only force the court to be on guard in examination of the evidence.[18]The apex court has also held that there is no statutory bar in the usage of the evidence that are illegally collected.[19]
When acting on prior information duty to inform the suspect of his right under Section 50 is imperative and failure in this regard would cause prejudice to the accused. Failure to take the suspect to nearest Magistrate or a gazette Officer if he opts for it, would render recovery suspect and vitiate the conviction. Use of evidence collected in breach of safeguards provided in Section 50 would render the trial unfair.[20]
The form that the policemen have to follow in establishing that the accused has a right to be searched in front of the magistrate has passed through a lot of development. The accused in the matter of Joseph Fernandez vs. State of Goa the accused was told that “If you wish you may be searched in the presence of a gazetted officer or a Magistrate” and the court held that the same was in substantial compliance of Section 50[21]. In another case where the suspect was informed that, “You would like to give me search or you would like to be searched by a gazetted officer or by a Magistrate” this was also held to in substantial compliance.[22] The court however held on a different footing that it is the right of the accused and he should me made aware of this, the court emphasized on the substance and not on the intimation.[23]
The rights of the suspect lies in the heart of this special statute, the Evidence Act takes into consideration the larger prospects of a crime free society. The intention of the legislators of the NDPS Act too did not divert much from the object of the mother Act, however due to the grave nature of the punishment inflicted upon the guilty the law makers just wanted it to be a process devoid on any glitches.
Onus of proof
The principle of onus probandi has been enshrined in the Indian Evidence Act. The principle states that “ On every issue, there is an obligation on one party to convince the tribunal of the truth of some proposition of fact which is in issue and which is vital to his case.[24] Section 101 of the Act provides that the burden of proof lies on the person who says that the accused has committed the crime[25]. The burden of proof therefore lies on the party which makes the claim and not the one who is defending it.[26] It is therefore a well established proposition of the Indian Evidence Act that it is the responsibility of the person making the claim to clearly establish his facts. It is only when the prosecution has established his fact, section 105 of the same Act prompts the shifting of the burden on the defence and the defence is to put forward the exceptions[27]. The case of K.M. Nanavati which created a sensation in the Indian judiciary laid down the proposition that the burden on the accused under S.l05 is not so onerous as the burden on the prosecution, and can be discharged by a balance of probabilities.[28] The burden so created can be done away with reasonable doubt[29] and an indirect acquittal can be provided for the same[30].
However the NDPS Act on the other hand provides for a strong revere onus clause, which initiates the burden of proof for the accused. Section 54 of the Narcotics Drugs and Psytrophic Substances Act, 1985 states that there lies a presumption that the person has committed an offence when he is found in possession of the contraband substance unless it is otherwise proved by the accused[31] and the prosecution under such circumstances need not even prove the illegal possession.[32] Under the special law, the prosecution just has to establish that the accused was in possession of the illicit drug.[33] Therefore it can be said here that the prosecution need not prove all the essentials of the offence, but to prove an offence under the evidence act the prosecution has to establish the fulfilment of the essentials of the offence. When the burden of proof shifts over to the accused under Section 105 of the Evidence Act, the accused need not establish the presence of a valid defence in toto but may simply raise the mens rea of the accused at the time of the commission of the offence[34]. The principle of presumption, therefore, rests upon the construction of the fact that the prosecution has proved the guilt beyond reasonable doubt. [35]Section 35 of the NDPS Act also states that the presumption would be against the mental state of the accused and the same has to be proved beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. The outcome of such sections has been to presume that the accused is guilty merely on the basis of physical possession and not conscious possession[36]. The NDPS act can therefore be said to be one of those special legislations with a strong reverse onus principle, inflicting the burden of proof on the accused. The Special legislation to this regard can be differentiated to a great extent with the Indian Evidence Act. The burden of proof on the Accused with regard to the NDPS Act is higher than that of the Evidence Act.
Conclusion
It is therefore clear that the Evidence Act and the NDPS act vary in the application of various provisions with regard to the admissibility of evidence. The crux of it lying on the grave nature of the offence under the evidence. The abuse of drugs has been a major concern in a developing nation like India and the same needs to be governed by a strict legislations like the Narcotics Drugs and Psychotropic Substances Act. The minimum punishment given under the NDPS Act is 10 years and a fine of 2 lakh rupees, since the gravity of punishment being of such high extent the provisions of taking the evidence had to be strictly followed. With the rate of offence increasing, there was a need for enacting certain provisions which would act as a strong deterrent.
References
[1]Section 25, Indian Evidence Act, 1872.
[2]Section 67, Narcotic Drugs and Psychotropic Substances Act. 1984.
[3](2008) 4 SCC 668.
[4](2007) 8 SCC 254
[5](2008) 16 SCC 417.
[6](2011) 11 SCC 347.
[7]http://nujslawreview.org/wp-content/uploads/2015/07/Abhinav-Sekhri.pdf
[8]AIR 1953 Cal 219.
[9]http://nujslawreview.org/wp-content/uploads/2015/07/Abhinav-Sekhri.pdf
[10](1990) 2 SCC 409.
[11][1963] 2 SCR 752.
[12] Gurbax Singh v. State of Haryana (2001) 3 SCC 28
[13] State of HP vs Sunil Kumar AIR 2014 SC 2564
[14] Saiyad Mohd. Saiyad Umar Saiyed vsGujarat (1995) 3 SCC 610
[15] Ali Mustaffa Abdul Rahman Moosa v.Kerala.1995 SSC 244
[16] Himachal Pradesh v. Pirthi Chand 1996 (2) SCC 37
[17] R.M. Malkani, AIR 1973 SCC157.
[18] State of Maharashtra v. Natwarlal Damodardas Soni. AIR 1980 SCC 593.
[19] Pooran Mai v. Director of Inspection, 93 I.T.R. 505 (1974)
[20] State of Punjab vs Baldev Singh AIR 1999 SC 2378.
[21] Joseph Fernandez Vs. State of Goa, AIR 2001 (1) SCC 707
[22] Prabha Shankar Dubey Vs. State of M.P, AIR 2004(2) SCC 56
[23] Krishan Kanwar (Smt.) Alias Thakuraeen Vs. State of Rajasthan, 2004(2) SCC .608.
[24] S.L. Phipson & D.W. Elliot, Manual of the law of evidence 70 (11th ed. 2001)
[25] Section 101 of the Indian Evidence Act.
[26] Rangammal v. Kuppuswami and Ors. CIVIL APPEAL NO. 562 OF 2003
[27] Section 105, Indian Evidence Act, 1872.
[28] K. M. Nanavati v. State of Maharashtra, AIR 1962 SC 605.
[29] Parbhoo v. Emperor, 1941 All LJ 619 AIR 1941 All 402.
[30] Rishikesh Singh v. State, AIR 1970 All 51
[31] Section 54, India Evidence Act, 1872.
[32] Radhakishan Parashar v. State , 1988 Cri. L. J. 17,18
[33] R. V. Hunt, (1987) 1All E.R.1.
[34] Dahayabhai v. State, AIR 1964 S.C. 1563.
[35] Henry L. Chambers Jr., Reasonable Certainty amd Reasonable Doubt, 81 MARQ .L. REV.- 655,671-672
[36] http://nujslawreview.org/wp-content/uploads/2015/02/juhi-gupta.pdf
