2013 (10) TMI 361 - SC - Customs

Court Refers Appeal on NDPS Act Admissibility & Bail Granted

The court referred the appeal to a larger bench for a detailed examination of issues concerning the admissibility of statements under Section 67 of the ... Power of entry, search, seizure and arrest without warrant - Power to call for information and to examine persons under Section 67 - Admissibility of confessional statements and applicability of Section 25 of the Evidence Act - Independence of investigating officer and obligation under Section 52(3) requiring transmission to investigating authority - Reference to Larger Bench for reconsideration of classification of NDPS officers as police officersAdmissibility of confessional statements and applicability of Section 25 of the Evidence Act - Power to call for information and to examine persons under Section 67 - Whether statements recorded under Section 67 of the NDPS Act by officers referred to in Section 42 qualify as confessional statements admissible in evidence and whether such officers fall within the ambit of 'police officer' for the purposes of Section 25 of the Evidence Act. - HELD THAT: - The Court examined competing authorities and statutory scheme and found that earlier two-judge decisions warrant re-examination. Observing that the question whether officers empowered under the NDPS Act (notably those acting under Sections 42, 53 and 67) should be classified as 'police officers' for the purpose of Section 25 of the Evidence Act and whether statements under Section 67 partake the character of confessional statements or are akin to statements under Sections 161/164 Cr.P.C. raise substantial and inter-related points of law. In view of divergent precedents (including Kanhaiyalal, Raj Kumar Karwal, Noor Aga and subsequent commentary), the Court considered the issue to be fit for authoritative determination and therefore referred the questions to a Larger Bench for reconsideration. The Court did not decide the merits of admissibility or classification but directed that these questions be heard by a Larger Bench. [Paras 39, 40, 41, 42]Referred for decision by a Larger Bench; no final determination on admissibility or classification made by this Bench.Independence of investigating officer and obligation under Section 52(3) requiring transmission to investigating authority - Fair investigation - Whether the exercise of powers under Section 42 by an officer and his subsequent assumption of investigational role without forwarding arrested persons or seized articles to the officer-in-charge (as contemplated by Section 52(3)) vitiates the investigation and trial. - HELD THAT: - The Court considered submissions that the same officer who exercised powers under Section 42 subsequently acted as investigating officer in alleged non-compliance of Section 52(3) and Section 57, raising issues about independence of investigation and conformity with safeguards in the NDPS Act. Given the inter-connection of this inquiry with the classification of NDPS officers and the evidentiary character of statements under Section 67, the Court treated this matter as part of the questions fit for consideration by the Larger Bench and did not pronounce a final finding on whether such conduct vitiates investigation in the present case. [Paras 29, 39, 40, 42]Left open for determination by the Larger Bench; no conclusive adjudication on vitiation of investigation rendered by this Bench.Power of entry, search, seizure and arrest without warrant - Interim relief in respect of sentence and custody pending determination by the Larger Bench. - HELD THAT: - Noting that the appellant had already undergone over nine years of the sentence of ten years, and having referred the substantial legal questions to a Larger Bench, the Court exercised its discretion to suspend further sentence. The suspension was made subject to conditions of bail and security to ensure appearance and protection of the prosecution's interest. [Paras 43]Sentence suspended and appellant released on bail upon furnishing security of Rs.50,000 with two sureties of the like amount, to the satisfaction of the trial court, until disposal of the matter by the Larger Bench.Final Conclusion: Substantial questions of law-whether officers under the NDPS Act qualify as 'police officers' for the purpose of Section 25 of the Evidence Act and whether statements under Section 67 are admissible as confessional/substantive evidence-are referred to a Larger Bench for authoritative determination; meanwhile further sentence is suspended and the appellant is released on bail on specified security and surety conditions. Issues Involved:1. Admissibility and evidentiary value of statements under Section 67 of the NDPS Act.2. Compliance with procedural safeguards under Sections 42, 50, 52(3), and 57 of the NDPS Act.3. Fairness of the investigation and the role of the investigating officer.4. Conviction based on retracted confessions and corroborative evidence.Issue-wise Detailed Analysis:1. Admissibility and Evidentiary Value of Statements under Section 67 of the NDPS Act:The appellant's conviction was primarily based on a confessional statement recorded under Section 67 of the NDPS Act. The appellant argued that Section 67 does not confer power to record confessions or substantive evidence and that such statements are akin to those under Section 161 Cr.PC, which are not substantive evidence. It was also contended that the officer recording the statement should be considered a 'police officer' under Section 25 of the Indian Evidence Act, making the statement inadmissible. The court noted the existing judgments in Kanhaiyalal v. Union of India and Raj Kumar Karwal v. Union of India, which held that officers under Section 53 of the NDPS Act are not police officers. However, the court acknowledged the need to re-examine this issue in light of conflicting judgments and the significant powers conferred upon such officers, which align with those of police officers in preventing and detecting crime.2. Compliance with Procedural Safeguards under Sections 42, 50, 52(3), and 57 of the NDPS Act:The appellant argued that there was non-compliance with procedural safeguards, particularly Sections 42, 50, 52(3), and 57 of the NDPS Act. Section 42 pertains to the power of entry, search, seizure, and arrest without a warrant. Section 50 deals with the conditions under which searches of persons should be conducted. Section 52(3) mandates that every person arrested or article seized should be forwarded to an officer-in-charge of a police station or an officer empowered under Section 53. Section 57 requires a report of the arrest or seizure to be submitted to the immediate superior officer. The appellant contended that these provisions were not followed, particularly highlighting that the same officer who recorded the statement under Section 67 also acted as the investigating officer, thereby compromising the fairness of the investigation.3. Fairness of the Investigation and the Role of the Investigating Officer:The appellant argued that the investigation was not fair as the same officer who recorded the statement under Section 67 of the NDPS Act also acted as the investigating officer, violating the principle of fair investigation. The court noted that fair investigation demands the existence of an independent investigating agency, and the conduct of the officer arresting or an officer under Section 42 should be subject to investigation by an independent agency. The court acknowledged the appellant's argument that this dual role of the officer amounted to non-compliance with Section 52(3) read with Section 58 of the NDPS Act.4. Conviction Based on Retracted Confessions and Corroborative Evidence:The appellant's conviction was also challenged on the ground that it was based on a retracted confession. The appellant argued that a retracted confession cannot be the sole basis for conviction and requires corroboration. The court noted that the trial court had dismissed the appellant's arguments regarding the retraction and found the prosecution's evidence sufficient to convict the appellant. However, the appellant contended that the retracted confession should have been investigated further and could only be used to corroborate other evidence, not as substantive evidence itself.Conclusion and Referral to Larger Bench:The court concluded that the issues raised by the appellant, particularly regarding the admissibility and evidentiary value of statements under Section 67 of the NDPS Act, the role of the investigating officer, and compliance with procedural safeguards, necessitated a re-examination by a larger bench. The court directed the registry to place the matter before the Chief Justice for the constitution of a larger bench to decide the appeal. Additionally, considering the appellant had already undergone more than nine years of the ten-year sentence, the court deemed it fit to suspend the further sentence and granted bail to the appellant.Judgment:The appeal was referred to a larger bench for a detailed examination of the issues raised, and the appellant was granted bail pending the final decision.