Whether Statement Recorded By Investigating Officer U/s 67 NDPS Act Is A Confessional Statement? SC To Hear On 18th August [Read Notice]

Whether a statement recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act can in law be a confessional statement or not?, a three judge bench will be hearing this important legal issue on 18th August.

A two judge bench had referred this issue to larger bench seven years ago.

The SC registry has now issued a notice that a batch of criminal cases including Tofan Singh vs. State of Tamil Nadu will be put up for hearing before a bench that would be presided by Justice Rohinton Fali Nariman. It has also requested the parties file written submissions and compilations in advance before the date of hearing and has also clarified that no request for adjournment would be granted.

Section 67 NDPS Act

Section 67 provides that '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 provisions 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.'

In these case, the contention of the accused is that their conviction is based upon a purported confessional statement under the provisions of Section 67 of the NDPS Act, and the same does not have any evidentiary value in view of the mandate under Section 25 of the Indian Evidence Act.

The 2013 Reference

A division bench of Justice AK Patnaik and Justice AK Sikri, in 2013, had referred these issues to the larger bench.

1. Whether the officer investigating the matter under the NDPS Act would qualify as police officer or not?
2. Whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer?
   

Reference was made by the two judge bench expressing its doubt about the correctness of the dictum laid in Kanhaiyalal vs. Union of India in which it was held that the officer under Section 63 is not a police officer and thus the bar under Sections 24 and 27 of the Evidence Act cannot be attracted. It was further held in Kanhaiyalal hat the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person.

"We have also to keep in mind the crucial test to determine whether an officer is a police officer for the purpose of Section 25 of the Evidence Act viz. the "influence or authority" that an officer is capable of exercising over a person from whom a confession is obtained. The term "police officer" has not been defined under the Code or in the Evidence Act and, therefore, the meaning ought to assessed not by equating the powers of the officer sought to be equated with a police officer but from the power he possesses from the perception of the common public to assess his capacity to influence, pressure or coercion on persons who are searched, detained or arrested. The influence exercised has to be, assessed from the consequences that a person is likely to suffer in view of the provisions of the Act under which he is being booked. It, therefore, follows that a police officer is one who:-(i) is considered to be a police officer in "common parlance" keeping into focus the consequences provided under the Act. (ii) is capable of exercising influence or authority over a person from whom a confession is obtained.", the bench had said while referring the matter to larger bench.

Later in July 2018, the Supreme Court bench headed by Justice Ranjan Gogoi had asked the Registry to bring it to the notice of Chief Justice of India about the pendency of reference made in Tofan Singh. The bench had observed that a large number of cases in the Apex court and various High courts in the country are awaiting the outcome in that case to know determination of the three-judge bench in the issue. In January 2019, a three judge bench headed by Justice Gogoi had begun hearing the reference but did not complete it.

In September 2019, the Court held that, (Mohammed Fasrin vs. State), even if confessions made to investigating officers are held to be admissible under Section 67 of the NDPS Act, the Court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession.

Confession of Co-Accused Cannot Be Basis For Conviction

In July 2018, a bench headed by Justice AM Sapre had held that hat conviction under NDPS Act cannot be based solely on the confessional statement of a co-accused, in the absence of a substantive piece of evidence.  In that case (Surinder Kumar Khanna vs. Intelligence Officer Directorate of Revenue Intelligence), the court had observed: "Even if we are to proceed on the premise that such statement under Section 67 of the NDPS Act may amount to confession, in our view, certain additional features must be established before such a confessional statement could be relied upon against a co-accused. It is noteworthy that unlike Section 15 of Terrorist and Disruptive Activities Act, 1987 which specifically makes confession of a co-accused admissible against other accused in certain eventualities; there is no such similar or identical provision in the NDPS Act making such confession admissible against a co-accused. The matter, therefore, has to be seen in the light of the law laid down by this Court as regards general application of a confession of a co-accused as against other accused."

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