The Author, Gaurav Thote is a Advocate practising in Bombay High Court.
On July 29, the Registry of the Supreme Court issued a notice that a batch of criminal cases including the long pending reference of Tofan Singh v. State of Tamil Nadu (referred in 2013) would be listed for hearing on August 18, before a bench presided by Justice R.F.Nariman. The matter was referred to a larger bench on October 8, 2013 by a division bench of the Supreme Court in view of the conflicting opinions on whether a statement recorded under 67 of The Narcotic Drug and Psychotropic Substances Act, 1985 (“NDPS Act”) could be termed as a “confessional statement” and whether an officer authorised to investigate into offences under the Act was a “police officer” for the purpose of Section 25 of the Indian Evidence Act, 1872.
This Article is a preliminary analysis of the provision of Section 67 of the NDPS Act, which, inter alia, empowers an authorised officer under Section 53 of the Act to summon and examine any person including an accused person acquainted with the facts and circumstances of a case, during the course of any enquiry in connection with the Act and to summon and call for information/documents, from any person including an accused, with regards to the contravention of any provision of the Act or Rule made thereunder. It is pertinent to note that a statement made by an accused under Section 67 of the NDPS Act to an empowered officer is admissible in evidence. Given that the provision is silent on aspect of questions having a tendency to expose the person to criminal charges ; and on statements amounting to confessions, it would be imperative to analyse the constitutional ambit of the said provision.
Section 161 of the Criminal Procedural Code (“the Code”) is similar to Section 67 of the NDPS Act, which, in general statutes, empowers Police Officers to examine any person including an accused person acquainted with the facts and circumstances of the case. However, such a statement, whether made by an accused person or otherwise, whether amounting to a confession or not, is inadmissible in evidence by virtue of Section 162 of the Code. Section 161 of the Code also states that a person is bound to truly answer all questions put to him/her by the Police Officer, except the questions which have a tendency to expose the person to a criminal charge or penalty. As observed in Nandini Satpathy v. P.L. Dani, Section 161 of the Code is underpinned by Article 20(3) of the Constitution of India which asseverates that no accused person shall be compelled to be a witness against himself.
On April 24 2019, the Supreme Court in Dipakbhai Patel v. State of Gujarat[1] had the occasion to revisit the issue pertaining to statements made by a person/accused before a Police Officer under Section 161 of the Code wherein the landmark judgment of the Privy Council in Pakala Narayan Swami[2] was referred. While distinguishing the term “admission” from “confession”, the Court held that a statement given under Section 161 would be inadmissible regardless of its nature. A reference was also made to the full-bench decision of Nandini Satpathy v. P.L. Dani[3] while observing that an accused could also be examined by the Police Officer under Section 161 of the Code, however, the statement would attract the bar of admissibility under Section 162 of the Code.
In Pakala Nayaran Swami (supra), the aspect of confessions and their admissibility was dealt in depth highlighting Sections 25, 26 and 27 of the Indian Evidence Act, 1872. In State of UP v. Deoman Upadhyaya[4] a five-judge-bench was constituted to determine whether Section 162 of the Code in so far as it related to Section 27 of the Evidence Act was ultra vires. Although the question before the bench was apart from the subject issue, an observation was made that a statement amounting to a confession before a Police Officer would be tainted and hence inadmissible by virtue of Sections 25 and 26 of the Evidence Act.
In Kartar Singh v. State of Punjab[5], a Constitution Bench of the Supreme Court issued mandatory guidelines on the aspect of recording confessions. The cumulative effect of Pakala Narayan Swami and Kartar Singh (both supra) primarily hold that a voluntary statement admitting in terms the offence, or at any rate substantially all the facts which constitute the offence made by an accused in a “free” atmosphere would be a valid “confession”.
The Maharashtra Control of Organised Crime Act, 1999 is another draconian enactment which empowers Police Officers to record Confessions of accused persons. However, there are check-points contemplated at every step in the provision and the MCOC Rules. Section 18 of the MCOC Act makes it mandatory on part of the empowered Officer to inform the Accused person that he is not bound to make the confession and if he does so, it may be used against him as evidence. Furthermore, the MCOC Rules mandate the officer to give minimum 24 hours of reflection time to the Accused before recording his confession. The Rules also cast a duty on the empowered Officer to strictly ensure that no person from the Investigating Team can visit the Accused during the reflection time. Once these procedures are complied with, only then can the Officer record a confessional statement. Even so, subsequent to recording of the statement, the Officer is to forthwith forward the confession and the Accused person to a Magistrate who must scrutinise the confessional statement and procedure of recording the confession.
Even in IPC Offences, the Magistrate recording a confession under Section 164 of the Code is duty bound to comply with the requisites in the provision and additionally give at least 24 hours reflection time to a person expressing his intent to make a confession. (Refer- Sarwan Singh v. State of Punjab[6]).
Juxtaposing this with Section 67 of the NDPS Act, neither the NDPS Act nor the NDPS Rules provide for any such mandates. There is no procedure contemplated for recording confessions. An empowered officer under the NDPS Act could summon a person for the purpose of examining him and threaten/coerce/pressurize him to make an incriminating statement or confession. It is true that the duties of Police Officers and Revenue Officers can be distinguished, however, that does not mean that the Revenue Officer investigating into an offence under the NDPS Act is powerless. Being an officer in authority, he/she could pressurise/coerce and/or threaten a person to make such statement with malafide intent of procuring conviction. Moreover, the person making a statement is not protected as is contemplated under sub-section (2) of Section 161 of the CrPC and would be bound to answer all questions including the questions exposing him to a criminal charge. Hence, on the face of it, this interpretation of the provision appears to be violative of Article 20(3) of the Constitution of India.
In Mohammed Fasrin v. State[Cri. Appeal No.296 of 2014](delivered on September 4, 2019) the Supreme Court while setting aside the conviction of the Appellant charged under the NDPS Act, categorically opined that a confession made by an accused person even under the NDPS Act would have to satisfy the Court that it is a voluntary statement, free from any pressure and that the accused was apprised of his rights before recording the confession. However, given the absence of any checkpoints, it would be difficult to ascertain as to the authenticity of the confessional statement.
To conclude, given the ambiguity and divergent interpretations on the provision, it is a relief that the Supreme Court has finally issued the subject notice to hear and decide the reference, as a fundamental question of law is involved and a number of matters are kept in abeyance, pending judgment of the larger bench on the issue.
