The Author, Gaurav Thote is a Lawyer practising in the Bombay High Court.
As we all know, the death of actor Sushant Singh Rajput is being investigated by the CBI, Enforcement of Directorate and Narcotics Department. As regards the drugs angle, the actor’s partner Rhea Chakraborty was arrested by the Narcotics Control Bureau (NCB) on Tuesday and remanded to judicial custody. Earlier on Friday – September 4, 2020, her brother Showik Chakraborty, Sushant’s house manager Samuel Miranda and house helper Dipesh Sawant were arrested and remanded to NCB custody pursuant to an order passed by the Magistrate. The Special Court on September 10 reserved its order on the bail pleas filed by Rhea Chakraborty and her brother.
Nevertheless, it would be imperative to analyse whether the Magistrate was justified in authorising the detention of the accused in the custody of NCB. This Article contemplates two fundamental questions of law-
- Whether officers empowered to investigate into offences by virtue of Section 53 of the NDPS Act are deemed “police officers” for the purpose of seeking remand of accused persons?
- Whether empowered officers (not being ‘Police Officers’) under Section 53 of the Act can seek ‘Police Custody’ of an arrestee and whether the Magistrate or Special Court is empowered to authorise detention of accused to custody of such empowered officers?
As far as General Criminal Statutes are concerned, it is a settled position that police officers are empowered to arrest a person under Section 41 of the CrPC and seek further police custody by producing him within 24 hours of his arrest before a Magistrate. Section 167 of the CrPC empowers the Magistrate to authorise the detention of such accused in police custody for a period not exceeding 15 days, and thereafter to judicial custody. However, the Magistrate shall not authorise detention in custody for a total period exceeding-
- ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
- sixty days, where the investigation relates to any other offence.
In CBI v Anupam J. Kulkarni, the Apex Court while examining the scope of Section 167 of the CrPC observed-
“The magistrate under this Section can authorise the detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. Therefore the custody initially should not exceed fifteen days in the whole. The custody can be police custody or judicial custody as the magistrate thinks fit. The words "such custody" and "for a term not exceeding fifteen days in the whole" are very significant.”
The Court concluded by holding-
“The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e. either police or judicial from time to time but the total period of detention cannot exceed fifteen day in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa.”
Although the NDPS Act is a special statute, the provisions of the CrPC apply as long as they are not inconsistent with the Act. (Refer Section 51 of the NDPS Act)
REMAND IN NDPS CASES:
It would be apposite to refer to Section 36A of the NDPS Act as it pertains to remand proceedings-
36A. Offences triable by Special Courts
(1) Notwithstanding anything contained in the CrPC, 1973,-
(a) xxx ;
(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973, such Magistrate may authorize the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:
Provided that where such Magistrate considers-
(i) xxx; or
(ii) upon or at any time before the expiry of the period of detention authorized by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;
(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section;
(d) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorized in the behalf, take cognizance of that offence without the accused being committed to it for trial.
Section 53 of the NDPS Act empowers the Central Government to invest any officer of the department of central excise, narcotics, customs, revenue intelligence or Border Security Force or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under the Act.
Various provisions of the NDPS Act empower authorised officers (Refer Sections 41, 42, 43 & 44) to carry out search, seizure, arrest etc. As per Article 22(2) of the Constitution of India, a person arrested and detained in custody would have to be produced before a magistrate within 24 hours of his arrest. No person can be detained in custody beyond the period of 24 hours without an order of a Magistrate.
A conjoint reading of the abovementioned provisions makes it clear that a Police Officer or empowered officer under Section 53 of the Act is duty bound to produce an accused before the Magistrate within 24 hours after his arrest and would have the power to seek remand of the accused under Section 36A(1)(b) and (c) of the Act. In such circumstances, (i) can be answered in the affirmative only to the extent of the empowered officer asking for judicial custody of an arrestee.
Let us go on to answer (ii).
Now although Section 53 of the NDPS Act empowers authorised officers with the powers of an officer-in-charge of a police station, it would be pertinent to observe that such officers belong to various departments as contemplated in the provision. This being said, a catena of judgments indicate that such officers are not police officers as their roles and duties can be distinguished from that of police officers.
In Raj Karwal v. UOI, the Apex Court after referencing various decisions including constitution rulings, held -
“…this Court has since the decision in Badku Joti Savant accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Section 173, he cannot be described to be a 'police officer' under Section 25, Evidence Act.
We must, therefore, negative the contention that an officer appointed under Section 53 of the Act, other than a police officer, is entitled to exercise 'all' the powers under Chapter XII of the Code, including the power to submit a report or charge-sheet under Section 173 of the Code.”
The word “Police Officer” has not been defined in any statute/enactment. However, the Police Act 1861 (Refer Sections 1 & 8) indicates that a Police Officer is a person enrolled under the Act or a person having a certificate granted by virtue of Section 8 of the Act. Furthermore, the Police Act 1888 empowers the Central Government to constitute Special Police Forces for special purposes. In this backdrop, the concept of “Police Custody” would mean in the custody of a designated or qualified ‘Police Officer’ under such Act empowered to investigate into the matter.
It would not be out of place to mention here that merely because an officer is vested with powers of an officer-in-charge of a police station, it does not per se embody him/her a ‘police officer’. As Section 36A(1)(b) of the NDPS Act is silent on the aspect of “such custody as he thinks fit” and in view of clause (c) of subsection (1) of Section 36A of the NDPS Act which states that Section 167 of the Code is to apply for the purposes of the Act, the ruling of Anupam Kulkarni (supra) would be applicable in NDPS cases as well. At the cost of repetition, the Supreme Court in the aforesaid ruling has recognised only two kinds of custody under Section 167 of the CrPC – Police Custody and Judicial Custody.
As constitutional rulings of the Apex Court have held that Revenue/Customs Officers are not Police Officers, it would manifest that a Magistrate would not be empowered to authorise the detention of accused in the custody of such officers.
It may be argued that if such an interpretation is adopted, officers under the Delhi Special Police Establishment Act or National Investigation Agency Act etc would also not be “Police Officers” for the purposes. However, as far as the Delhi Special Police Establishment Act is concerned Section 2(2) states-
“(2) Subject to any orders which the Central Government may make in this behalf, members of the said police establishment shall have throughout [any [Union territory]], in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of [that Union territory] have in connection with the investigation of offences committed therein.”
As regards National Investigation Agency Act is concerned Section 3(2) states-
“(2) Subject to any orders which the Central Government may make in this behalf, officers of the Agency shall have throughout India in relation to the investigation of Scheduled Offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences committed therein.”
This makes it clear that officers under both the enactments are ‘police officers’ and have all the powers, duties, privileges and liabilities of Police Officers. Such officers would naturally be empowered to file a final-report under Section 173 of the CrPC, after completion of investigation.
Juxtaposing this with the NDPS Act, officers empowered to investigate into offences under Section 53 only possess powers of that of an officer-in-charge of a police station and ipso facto are not ‘Police Officers’. Resultantly, the custody of such officers cannot technically be termed as ‘Police Custody’ and hence (ii) will have to be answered in the negative.
CONCLUSION:
It can thus be seen that the practice adopted by Special Courts authorising the detention of an accused to custody of such empowered officers under the pretext of such officers being ‘Police Officers’ is wholly irregular, leading to legal anomalies. Resultantly, authorising the detention of Rhea Chakraborty’s brother Showik and others to NCB custody, was therefore without jurisdiction and in ignorance of law.
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