The Author, Gaurav Thote is an Advocate practising in the Bombay High Court.
On October 29, the Supreme Court in the case of Tofan Singh v. State of Tamil Nadu held (in a 2:1 ratio) that officers invested with powers to investigate offences under the Narcotic Drugs and Psychotropic Substances Act are ‘Police Officers’ within the meaning of Section 25 of the Indian Evidence Act and therefore a confession made by an accused under Section 67 of the Act before such officer/s was inadmissible in evidence. While arriving at such finding it was observed-
“Even if the NDPS Act is to be construed as a statute which regulates and exercises control over narcotic drugs and psychotropic substances, the prevention, detection and punishment of crimes related thereto cannot be said to be ancillary to such object, but is the single most important and effective means of achieving such object. This is unlike the revenue statutes where the main object was the due realisation of customs duties and the consequent ancillary checking of smuggling of goods (as in the Land Customs Act, 1924, the Sea Customs Act, 1878 and the Customs Act, 1962); the levy and collection of excise duties (as in the Central Excise Act, 1944); or as in the Railway Property (Unlawful Possession Act), 1966, the better protection and security of Railway property. Second, unlike the revenue statutes and the Railway Act, all the offences to be investigated by the officers under the NDPS Act are cognizable. Third, that section 53 of the NDPS Act, unlike the aforesaid statutes, does not prescribe any limitation upon the powers of the officer to investigate an offence under the Act, and therefore, it is clear that all the investigative powers vested in an officer in charge of a police station under the CrPC – including the power to file a charge-sheet – are vested in these officers when dealing with an offence under the NDPS Act.
Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India”
The Prevention of Money Laundering Act 2002 (PMLA) was introduced to make Money Laundering an offence and attach properties involved in Money Laundering so that the threat to the financial system of India is adequately dealt with.
Would the ratio of Tofan Singh’s ruling apply to PMLA and ipso facto are officers authorised to investigate offences under PMLA ‘Police Officers’ within the meaning of Section 25 of Evidence Act?
The answer to this conundrum will be based on three questions being answered in the affirmative.
- Whether the Prevention of Money Laundering Act is a penal statute?
- Whether all offences under the Prevention of Money Laundering Act are cognizable?
- Whether officers authorised to investigate into offences under the Prevention of Money Laundering Act would have all the powers of an officer-in-charge of a Police Station, including the power to file a final report/charge-sheet?
The provisions of the PMLA empower authorised officers to exercise the powers of survey, search, seizure, arrest and attach properties involved in offences under the Act (Refer Sections 16-21). Section 45 makes all offences under the PMLA cognizable and non-bailable and additionally incorporates the rigors of twin conditions to apply for grant of bail. Section 50(1) vests with the Director, the same powers as are vested in civil court under the Code of Civil Procedure for the purposes of Section 13 of the Act which empowers the authorised officers to impose a fine on any person failing to comply with obligations under Chapter-IV of the Act.
Interestingly, sub-section (2) of Section 50 (which is similar to Section 67 of NDPS Act) without referring to Section 13, states that the Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance is considered necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under the Act. Subsections (3) and (4) behold that such persons summoned would be bound to attend in person and state the truth upon examination, and such proceedings shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of IPC.
Leaving apart Section 50 for a moment, the preceding provisions manifest that the PMLA inter alia is a penal statute which carries a maximum punishment of ten years (Refer-Sections 3 & 4).
Thus, to answer (i) and (ii) the Act is a penal statute and all offences therein are cognizable and non-bailable.
To answer (iii) it would be apposite to refer to Sections-19 and 44 of the PMLA which read as:
19. Power to arrest
(1) If the Director, Deputy Director, Assistant Director, or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
(2) xxx
(3) Every person arrested under sub-section(1) shall within twenty-four hours, be taken to a Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the Magistrate’s Court.
44. Offences Triable by Special Courts
(1) Notwithstanding anything contained in the CrPC, 1973 -
(a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed:
Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or;
(b) a Special Court may, upon a complaint made by an authority authorised in this behalf under this Act take cognizance of offence under section 3, without the accused being committed to it for trial;
(c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause(b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed.
(d) a Special Court while trying the scheduled offence or the offence of money-laundering shall hold trial in accordance with the provisions of the CrPC, 1973 as it applies to a trial before a Court of Session.
Explanation - For the removal of doubts, it is clarified that,
(i) xxx;
(ii) the complaint shall be deemed to include any subsequent complaint in respect of further investigation that may be conducted to bring any further evidence, oral or documentary, against any accused person involved in respect of the offence, for which complaint has already been filed, whether named in the original complaint or not.
(2) xxx.
The ratios of Enforcement of Directorate v. Deepak Mahajan and Ashok Jain v. Assistant Directorate, ED hold that officers of the PMLA have the power to seek remand of an accused in their custody during investigation. A conjoint reading of the above provisions manifest that upon completion of investigation, the Courts would be empowered to take cognizance of the matter upon a complaint made to it by the authorised officer. It is further elucidated that a complaint shall be deemed to include any subsequent complaint in respect of further investigation. Section 65 observes the CrPC to apply so far as its provisions are not inconsistent with the Statute.
The cumulative effect is that an empowered officer under the PMLA, after registration of an ECIR (Enforcement Case Information Report), can exercise all the powers of an officer-in-charge of a police station and upon completion of investigation, would have the power to lodge a complaint. Such complaint appears to be a matter of nomenclature when seen in juxtaposition with a final report/charge sheet u/s.-173(2) of CrPC. Also, upon completion of further investigation, a subsequent complaint can be lodged which shall be deemed to be part of the original complaint. This again appears to be a matter of nomenclature when juxtaposed with Section 173(8) of CrPC.
At the cost of repetition, although Section 50(1) refers to Section 13 of the PMLA, Section 50(2) does not make any such reference.
In Tofan Singh, the bench took into account Section 36A(1)(d) of the NDPS Act (the latter part of which is pari materia to Section 44(1)(b) of PMLA) which states that a Special Court, upon perusal of police report of the facts constituting an offence under the Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, may take cognizance of that offence without the accused being committed to it for trial and nevertheless observed that all officers authorised to investigate into offences under the NDPS Act are ‘Police Officers’.
As a result (iii) can also be answered in the affirmative and as corollary thereof, the ruling of Tofan Singh would squarely apply to PMLA matters which would essentially mean that officers empowered to investigate into offences under PMLA would be ‘Police Officers’ within the meaning of Section 25 of the Evidence Act.
