Indians are potentially at high risk of drug abuse owing to propinquity with the major poppy growing areas, with the Golden crescent lying in the Northwest and the golden triangle lying in the Northeast. The location friendly atmosphere with the drugs make India one the large consumer base of different substance abusers. To restore the normalcy amongst the people, the Narcotic Drugs and Psychotropic Substance Act, 1985 was introduced for the drug abuse control in the country and the anomalies of the same was fixed in the Narcotic Drugs and Psychotropic Substance (Amendment) Bill, 2011. The NDPS Act prohibits a person to produce, manufacture, cultivate, possess, sell, purchase transport, store and even consume any narcotic drug or psychotropic substance. Recently, in India’s narcotics law, a paramount change has been made by the Hon’ble Supreme Court. In the latest judgement of Tofan Singh v. State of Tamil Nadu, the Hon’ble Supreme Court by a 2:1 majority held that if an officer authorized under the NDPS (Narcotic Drugs and Psychotropic Substances) Act gets a confession of an accused person and the same is hit by the provisions of the evidence act, will not be admissible as evidence. It was further held that “officers of the Central & State agencies appointed under the NDPS Act are police officers and therefore the confessional statements recorded by them under Section 67 are not admissible.”
Background of Reference
Earlier there was a provision that the authorities were given incredible power to ensure that there is proper investigation and there is justice in the NDPS matters and conviction takes place when the offenders are there, in those situations there are safeguards as well which mandate that if you are searching a person you have to give a notice. The power of certain officers empowered by the government such as revenue officers, narcotics control bureau, the central excise department, central excise intelligence. All of these organisations earlier have power, the officers have power to call upon accused persons in relation to these offences and take their statements and the same will be considered as evidence in courts. But with the recent upgradation in the narcotics law this has been completely changed and this cannot be considered as evidence. Section 67 of the NDPS Act 1985, says that any officer empowered under the act can call any person or record the person’s statement and that shall be admissible as evidence in the court. Furthermore, any officer authorized by the by government may during an investigation 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. The officer may also require any person to produce or deliver any document or thing useful or relevant to the enquiry” and any person acquainted with the case shall be examined. But this is contrary with regard to Section 161 and 162 of Criminal Procedure Code. Section 161, authorizes a police officer doing an investigation to examine orally any person suppose to be conversant with the facts and circumstances of the case and to reduce into writing any statement made to him in the course of such examination. Section 162, speaks of the use of the statement so recorded, states that no statement recorded by a police officer, if reduced into writing, to be signed by the person making it and that the statement shall not be used for any purpose same as provided in the Criminal Procedure Code and the provisions of Evidence Act.
Confession to the police officer
A police officer is clearly a person in authority. Section 25 of The Indian Evidence Act, 1872 says that no confession made to a police officer shall be proved as against a person accused of any offence because there is always a high chance that accused might have accepted the crime due to the punitive and coercive measures used by the police. A special legislation may change the system of excluding police confessions. For instance, under the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987, confessional statements were not excluded from evidence on the ground that the persons making them were in police custody. Section 26 of this act also says that confession by accused while in custody of police cannot be proved against him. The main objective of Section 25 and 26 is to prevent practices of torture by the police officers for the purpose of extracting confessions from the accused persons. It is observed that there in always a tendency of coercion by the officers while recording confessions. It is often said that the interrogation in police lock-up are often done under conditions of stress and pressure due to which the suspect could be exposed to great strain even if he is not guilty, while the culprit in the custody to hide or suppress maybe doubly susceptible to misperception and manipulation.
Positions considered as equivalent to police officers
Section 53 of The Narcotic Drug and Psychotropic Substances Act, 1985 articulates that the officers of certain department who has power to investigate with powers of an officer-in-charge of a police station. The departments can be: The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics control bureau, customs, revenue intelligence or even paramilitary or armed forces or any class of such officers with the power of an officer-in-charge of a police station for the investigation of the offences under this Act. The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control revenue or excise or any other department or any class of such officers with the powers of an officer-in-charge of police station for the investigation of offences under this Act. Now the main issue of concern was that whether the officers listed under Section 53 has the same power as of “police officers” in all sense or not? The matter was then placed before a Three Judge Bench of the Hon’ble Supreme Court. In answering of the question, Justice Rohinton F. Nariman and Justice Navin Sinha, with a majority on the Bench said that, “any confessional statement made to them [officials empowered under Section 53] would be barred under the Evidence Act.” Hence, confession made to them by the accused would not be admissible as evidence under the NDPS Act.
Power of seizure and arrest under the NDPS Act
Section 42 of The Narcotic Drug and Psychotropic Substances Act confers power of entry, search, seizure and arrest without warrant or authorisation to any such officer as mentioned in Section 42 of the Act. It includes any such officer of the revenue, drugs control, excise, police or any other department of a State Government or the Central Government, as the case may be, and as observed hereinabove, Section 53 authorises the Central Government to invest any offices of the department of central excise, narcotics, customs, revenue intelligent or any other department of the Central Government or any class of such officers with the powers of an officer in charge of a police station for the investigation. Similar power is with the State Government. The only change in Section 42 and 53 is that in Section 42 the word “police” is there, however in Section 53 the word “police” is not there.
Constitutional and the NDPS Act
The first most noteworthy constitutional protection provided in the fundamental rights subdivision so far as NDPS Act cases are concerned is provided by Article 20(3), which is the well-known right against self- incrimination Article 20(3) reads as “(3) No person accused of any offence shall be compelled to be a witness against himself.” In an early judgment of this Court, M.P. Sharma and Ors. v. Satish Chandra 1954 SCR 1077, an eight-Judge Bench of this Court set out Article 20(3), and then went into the historical origin of this Article in English law. “The phrase used in Article 20(3)is “to be a witness”. A person can “be a witness” not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (Section 119 of the Evidence Act) or the like. “To be a witness” is nothing more than “to furnish evidence” and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word “witness”, which must be understood in its natural sense i.e. as referring to a person who furnishes evidence. Indeed, every positive volitional act, which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room.” Article 22(1) and (2) deliberate certain rights of a person who has been detained. The narcoanalysis test includes substantial reliance on verbal statements by the test subject and hence its involuntary administration offends the “right against selfincrimination”. The crucial test laid down in Kathi Kalu Oghad is that of “imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation”. However, this does not entail that the results of these two tests should be likened to physical evidence and thereby excluded from the protective scope of Article 20(3). Right to privacy is equally important which has been recognised by a number of decisions of this Court, and now firmly grounded in Article 21 of the Constitution of India. In K.S. Puttaswamy (supra), several judgments were referred to; and M.P. Sharma (supra), where it was held that no such right was recognised in the Constitution of India, was overruled. “The decision in M.P. Sharma held that in the absence of a provision like the Fourth Amendment to the US Constitution, a right to privacy cannot be read into the Indian Constitution. The decision in M.P. Sharma did not decide whether a constitutional right to privacy is protected by other provisions contained in the fundamental rights including among them, the right to life and personal liberty under Article 21. Hence the decision cannot be construed to specifically exclude the protection of privacy under the framework of protected guarantees including those in Articles 19 or 21. The absence of an express constitutional guarantee of privacy still begs the question whether privacy is an element of liberty and, as an integral part of human dignity, is comprehended within the protection of life as well”. “The NDPS Act is to be construed in the backdrop of Article20(3) and Article 21, Parliament being aware of the fundamental rights of the citizen and the judgments of this Court interpreting them, as a result of which a delicate balance is maintained between the power of the State to maintain law and order, and the fundamental rights chapter which protects the liberty of the individual. Several safeguards are thus contained in the NDPS Act, which is of an extremely drastic and draconian nature, as has been contended by the counsel for the Appellants.”
Conclusion
The whole contentions undoubtedly state that the person who is detained or is in police custody by any of these officers or department for the infringement of the NDPS Act, so the officers will be considered as police officers but any confessional statement recorded by them will now not be permissible as evidence in contradiction of the person. Now it becomes very diligent for the officers to prove their case, and they have to work harder than before. It will not be the only matter of just confessional statements but the recovery of the statements of the autonomous witnesses, the testimony of the concerned department of the officers as well, the sample report, the purity report and all these things will hold more significance now onwards. As in Criminal Procedure Code there is a list of offences along with the concerned court, that the matter should be heard in this court only but the NDPS Act provides “Special Courts” governed by the judges no less than the rank of an Additional Session Judge (ADJ) to supervise over these cases. So, no other cases but narcotics cases are being heard in these courts.