By TIOL News Service

NEW DELHI, OCT 09, 2013: THE appellant, Tofan Singh, was listed as Accused No. 3 in the trial for the offences under Section 8(c) r/w Section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) as well as for the offences under Section 8(c) r/w Section 29 of the NDPS Act. This trial, conducted by the Special Judge, Additional Special Court, under NDPS Act, Chennai, resulted in the conviction of the appellant holding him guilty of the offences under the aforesaid provisions of the Act. As a consequence of the said judgment dated 18.12.2009 convicting him under the provisions of the NDPS Act, the Special Judge sentenced the appellant to undergo 10 years rigorous imprisonment and to pay a fine of Rs. one lakh.

Appeal filed by the appellant against the order of the Special Judge, Addl. Special Court, has been dismissed by the High Court of Judicature at Madras vide judgment dated 18.6.2012. This is how the present appeal arises against the impugned judgment of the High Court of Judicature at Madras.

It was argued that the conviction of the appellant is based upon a purported confessional statement recorded under the provisions of Section 67 of the NDPS Act, which did not have any evidentiary value. It was submitted that:

(a) There is no power under Section 67 of the NDPS Act to either record confessions or substantive evidence which can form basis for conviction of an accused.

(b) 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. 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.

(c) The officer recording the statement was a police officer and, therefore, such a statement was hit by Section 25 of the Indian Evidence Act . An officer empowered under Section 42 of the Act has been conferred with substantive powers which are powers available to a police officer for detection and prevention of crime.

(d) Even if it is assumed, without admitting, that Section 67 confers powers to record confessions, the status of a statement recorded by an officer under Section 42 of the Act can at best be recorded as 'extra judicial confession' and no conviction can be based solely on the basis of extra judicial convictions.

(e) In any case the statement under Section 67 was retracted and as such the confession in the present case is a retracted confession which ought to have been investigated and could have been used only to corroborate other evidence and not as a substantive evidence itself.

The Supreme Court recapitulated in brief, the submission of the appellant's Counsel as that there is no power in the Section 67 of the NDPS Act to either record confessions or substantive evidence which can form basis for conviction of the accused; that in any case, such a statement is not admissible in evidence as the excise official recording the statement is to be treated as "police officer" and thus, the evidential value of the statement recorded before him is hit by the provisions of Section 25 of the Indian Evidence Act.

The Supreme Court observed that the NDPS Act is a complete code relating to Narcotic Substances, and dealing with the offences and the procedure to be followed for the detection of the offences as well as for the prosecution and the punishment of the accused. The provisions are penal provisions which can, in certain cases, deprive a person of his liberty for a minimum period of 10 years and can also result in sentences which can extend upto 20 years or even death sentence under certain circumstances. The provisions therefore have to be strictly construed and the safeguards provided therein have to be scrupulously and honestly followed.

The Division Bench of the Supreme Court was of the view that the matter needs to be referred to a larger Bench for re-consideration of the issue as to whether the officer investigating the matter under NDPS Act would qualify as police officer or not.

In this context, the other related issue viz. 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 also needs to be referred to the larger Bench, inasmuch as it is intermixed with a facet of the 1st issue as to whether such a statement is to be treated as statement under Section 161 of the Code or it partakes the character of statement under Section 164 of the Code.

As far as this second related issue is concerned the Division Bench also pointed out that the Counsel 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 .

The Registry is accordingly directed to place the matter before the Chief Justice for the decision of this appeal by a larger Bench after considering the issues specifically referred as above.

The Bench found from the record that as against the sentence of 10 years awarded to the appellant he has already undergone more than 9 years of sentence. In these circumstances, it is deemed a fit case to suspend further sentence till the disposal of this appeal by the larger Bench. The appellant shall be released on bail on furnishing security in the sum of Rs.50,000 /- (Rupees Fifty Thousand) with two sureties of the same amount, to the satisfaction of the trial court.

(See 2013-TIOL-51-SC-NDPS)