TMI Blog2013 (10) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... mal Singh Pehalwan (2011 (7) TMI 1026 - SUPREME COURT). The matter needs to be referred to a larger Bench for re-consideration of the issue as to whether the officer investigating the matter under NDPS Act would qualify as police officer or not. Comparison between section 67 of NDPS act and Section 14 of Central Excise Act and Section 108 of Customs Act - Held that:- Provisions of Section 67 of the Act cannot be interpreted in the manner in which the provisions of Section 108 of the Customs Act or Section 14 of the Excise Act had been interpreted by number of judgments and there is a qualitative difference between the two sets of provisions. In so far as Section 108 of the Customs Act is concerned, it gives power to the custom officer to summon persons “to give evidence” and produce documents. Identical power is conferred upon the Central Excise Officer under Section 14 of the Act. However, the wording to Section 67 of the NDPS Act is altogether different. As against the sentence of 10 years awarded to the appellant he has already undergone more than 9 years of sentence. In these circumstances, we deem it a fit case to suspend further sentence till the disposal of this app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to export out of India. As per the complaint filed by the Intelligence Officer, NCB, Chennai in this behalf, the prosecution case is stated, in a summary form, as below:- 4. On 23.10.2004, the Intelligence Officer, NCB, South Zone Unit, Mr. L.S. Aruldoss (PW-7), received information at about 9.00 p.m. that one Prem @ Kannan @ Sudeshwaran resident of Nanganallur, Chennai was procuring Narcotic Drugs from Guddu Singh resident of Rajasthan with the assistance of one Bapulal resident of Pattalam, Chennai, for trafficking it from Chennai to Srilanka and that they had made arrangements for the supply of 5 Kgs. of heroin through his two persons, who were identified to Bapulal by Guddusingh and those two persons were arriving at Chennai on the next day by Jaipur Express. It was further reported that the said Bapulal and Kannan had planned to leave at 10.00 p.m. on 23.10.2004 to Nellore, Andhra Pradesh, in a white Ambassador Car bearing Registration No. TN- 01-K0923 and on reaching Chennai, Prem @ Kannan @ Sudeshwaran would receive the heroin and smuggle it out to Srilanka. 5. After receiving the information, Mr. L.S. Aruldoss, the Intelligence Officer (PW-7) discussed the matter with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akravarthy, Chemical Examiner in Customs House Laboratory at Chennai (P.W.4), Mr. T. Sridhar (P.W.5). 8. The information relating to the commission of the offence has been taken note of and discussed by the Trial Court as well as the High Court in the impugned judgment in detail. It is not necessary to burden this judgment with all those details as our purpose would be served by referring to those aspects which are essential for the purposes of the present appeal. We may state that the prosecution had also produced Exs. P1 to P81 and M.Os 1 to 19 during the trial. After examining the prosecution witnesses, statements of the accused persons under Section 313 of the Code of Civil Procedure (hereinafter to be referred as Code )were recorded. The accused persons denied the same and stated as follows: A-1: Denied the incriminating evidence against him and stated that he was compelled to come to the NCB Office and a false case is foisted against him and gave a written statement stating that the NCB officers came to his house between 12.30 to 1.00 p.m. on 25.10.2004 and took him to their office at Chennai in the presence of his wife and his children and have forcibly taken the signat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case as new C.C. No. 9 of 2007. Thereafter, the trial proceeded against the other four accused persons which led to their conviction, as mentioned above. All these four accused persons had filed the appeal which has been dismissed by the High Court of Judicature at Madras vide impugned Judgment. However, out of the four convicted persons, only the appellant herein has preferred the present appeal. JUDGMENT OF THE TRIAL COURT: 11. The learned Trial Court in its judgment dated 18.12.2009, after pointing out the main prosecution evidence as well as the defence, noted that the gist of the prosecution case was that the six accused persons had hatched criminal conspiracy at Nellore, Andhra Pradesh, Chennai and Srilanka to procure, possess, transport and attempt to export out of India 5.250 Kgs. of heroin to Srilanka. Accused No. 2 had indulged in financing for purchase of heroin for which he entered India without registering himself as a foreigner. The heroin, which was seized, was being taken for the said export which was intercepted in the manner stated below:- As per the prosecution, after the information was received by Mr. L.S. Aruldoss, Intelligence Officer (P.W.9) on 23.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in RPF. Ex. P-79 is the voluntary statement of A-4 which is free english translation of the hindi statement of Ex. P- 74 in which A- has stated that he boarded Jaipur Express on 22.10.2004 and met A-3 in Bhopal in the train and that he knew that A-3 brought Narcotic Drug with him. Conspiracy could be proved only through the conduct of the accused. A-3 and A-4 had travelled with the contraband in the train and have met A-1 and A-2 at Nellore and handed over the same and boarded in the ambassador car only due to the previous meeting of minds by fixing the time and place of handing over the contraband to the concerned accused. From the proved conduct of A-1 to A-4 it is clear that they have involved themselves in the illegal trafficking of heroin. Ex. P-21 call analysis discloses that 07425-284050 in the name of Bhuvan Singh of M.P. was frequently in touch with A-2 and A-2 mobile numbers A-1 in his voluntary statement Ex. P-2 has stated that Guddu Singh Number is 07425-284050 through which he used to contact A-3 and Guddu Singh. Hence, the prosecution contended that the charges against A-1 to A-4 for possession transportation of heroin for Export from India and Conspiracy U/s. 8(c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were wrongly included in the charge sheet. (vii) There was a violation of standing order 1/88 in as much as samples were not submitted to the Chemical Examiner within 72 hours of seizure and the report was not submitted within 15 days of receipt of contraband for analysis. (viii) Statements under Section 67 were not recorded in accordance with law, as no statutory warning under Section 164 of the Code of Criminal Procedure was given to the accused persons before recording the statement. 15. The trial court discussed the arguments predicated on the aforesaid defence but found the same to be meaningless. On the basis of prosecution evidence, the trial court concluded that the prosecution was able to prove the charges under Section 8(c) read with Section 21(c) and Section 29 of the NDPS Act and convicted and sentenced the accused persons in the manner mentioned in the beginning of this judgment. JUDGMENT OF THE HIGH COURT: 16. A perusal of the impugned judgment reveals that as many as six arguments were advanced before the High Court, attacking the findings of the learned Trial Court. Taking note of these grounds of appeal, the High Court framed the questions in Para 12 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h their seat and handed it over to PW.7. The appellant cannot be said to be in conscious possession of the narcotic substance. (d) In the search conducted of the appellant herein, the raiding party found Indian currency of Rs. 680/- (vide Ex. P-11) which is M.O. 15 and two second class train tickets from Shamgarh to Chennai. Thus no incriminating material has been recovered from the appellant. Further there is also no recovery of any mobile phone from the appellant herein which could link the appellant with the other co-accused. (e) The prosecution case hinges solely upon the confessional statement of the appellant herein (Ex. P-9), which was recorded by PW.2 R. Murugan under Section 67 of the Act, and the same person acted as the investigating officer in the present case. 19. From the above, Mr. Jain argued that there was no evidence worth the name implicating the appellant except the purported confessional statement of the appellant recorded under Section 67 of the NDPS Act. After drawing the aforesaid sketch, Mr. Jain endeavoured to fill therein the colours of innocence in so far as the appellant is concerned with the following legal submissions:- (I) It was argued tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thful as provided under Section 161(2) of the Criminal Procedure Code, which required the person making statement to a police officer under Section 161 Cr.P.C. to make a true statement. Even such a statement made under Section 161 Cr. P.C. is not a substantive evidence on which a conviction can be based. Statements under Section 67 are not required in law to be given truthfully and hence cannot in any case be treated to be a substantive evidence. Further statement under Section 67 are not recorded after administration of oath as is required under Section 164(5) of the Criminal Procedure Code, the officers are not competent to administer oaths and, therefore, the statements under Section 67 cannot be substantive evidence for recording conviction. (c) Taking the arguments to a still higher pedestal, Mr. Jain s effort was to demonstrate that the officer recording the statement was a police officer and, therefore, such a statement was hit by Section 25 of the Indian Evidence Act. He submitted that an officer empowered under Section 42 of the Act has been conferred with substantive powers which are powers available to a police officer for detection and prevention of crime. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay every person arrested or article seized to either an officer-in-charge of a police station or an officer empowered under Section 53. According to him, since there is an obligation to forward such person arrested or article seized, to an officer under Section 53 or an officerin- charge of the police station, it necessarily follows that an officer under Section 42 would be different and distinct from an officer invested with the task of investigation, i.e., either the officer-in-charge of the police station or an officer empowered under Section 53 of the Act. In the present case, however, the PW.2 R. Murugan recorded the statement of the appellant under Section 67 and thereafter arrested him. He was, therefore, required to forward the statement as well as the appellant to the Investigating officer in terms of Section 52(3). Instead, he himself became the Investigating Officer in the present case, which amounted to non-compliance of Section 52(3) read with Section 58 of the Act. Fair investigation demands existence of an independent investigating agency which is also contemplated and is evident from the scheme of NDPS Act. It was submitted that since Section 58 of the Act provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh @ Vikram Singh and Bapulal Jain picked them in a car and proceeded to Chennai. It is on the way that these accused persons were caught by the respondent s officials and based on their confession as well as the material seized, the case was registered. He also pointed out that it has come on record that Babulal Jain (declared as absconder) and Guddu Singh were involved in the similar offence by selling 8 Kgs. of heroin on earlier occasions which was handed over to Prem @ Kannan, a Srilankan National, another co-accused in this case. It was the second time that the accused persons planned to smuggle the heroin to Srilanka. 21. Refuting the submissions of the appellant, it was submitted that the confessional statement recorded under Section 67 of the NDPS Act could be acted upon, as the officer recording statement under this provision under Section 67 is not a police officer and, therefore, such a statement is not hit by the provisions of Section 24 to 27 of the Evidence Act or Article 20(3) of the Constitution of India. His submission was that law on this aspect had already been settled by the judgment of this Court in Kanhaiyalal v. Union of India; 2008 (4) SCC 668 as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sconded accused viz. Babulal Jain is also on the original record. In addition to that, the Identity Card of Badrilal Sharma and the train tickets of the appellant and Badrilal Sharma, as both of them travelled together, have come on record. All this proves that the appellant was in possession of the heroin 5.250 Kgs. and carried it from Rajasthan to Chennai with intention to smuggle the same to Srilanka, when he was caught. He thus pleaded that conviction and sentence of the appellant was rightly recorded by the courts below, which warranted no interdicting by this court. 24. From the arguments noted above, it would be clear that the appellant has challenged the conviction primarily on the following grounds:- (i) The conviction is based solely on the purported confessional statement recorded under Section 67 of the NDPS Act which has no evidentiary value in as much as: (a) The statement was given to and recorded by an officer who is to be treated as Police Officer and is thus, hit by Section 25 of the Indian Evidence Act. (b) No such confessional statement could be recorded under Section 67 of the NDPS Act. This provision empowers to call for information and not to record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building , conveyance or enclosed place, may between sunrise and sunset- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act. Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer and thus, the evidential value of the statement recorded before him is hit by the provisions of Section 25 of the Indian Evidence Act. 27. The learned Counsel for the respondent had pointed out that in the case of Kanhaiyalal vs. Union of India; 2008(4) SCC 668, it has been categorically held that the officer under Section 63 is not a police officer. In arriving at that conclusion the two judge Bench judgment had followed earlier judgment in the case of Raj Kumar Karwal Vs. Union of India; 1990(2) SCC 409. 28. Had the matter rested at that, the aforesaid dicta laid down by two judge Bench would have been followed by us. However, on the reading of the aforesaid judgment, we find that the only reason to conclude that an officer under Section 53 of the NDPS Act was not a police officer was based on the following observations: These provisions found in Chapter V of the Act show that there is nothing in the Act to indicate that all the powers under Chapter XII of the Code, including the power to file a report under Section 173 of the Code have been expressly conferred on officers who are invested with the powers of an officer-in-charge of a police station under Section 53, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld come within the ambit of Section 24 of the Evidence Act. This decision therefore would not be direct authority on the point in issue. In the aforesaid premises, the decision of Raja Ram would apply to the alleged confessional statement made by the appellant to the superintendent of excise and therefore would be inadmissible in evidence. 31. Both the said judgments i.e. Raj Kumar Karwal (supra) as well as Kanhiyalal (supra) were thereafter considered by this court in Noor Aga vs. State of Punjab (2008) 9 SCALE 681 where the court, has after considering the entire scheme of the Customs Act, has held that the officer under Section 53 of the customs Act is a police officer and would, therefore, attract the provisions of Section 25 of the Evidence Act. It observed: 104. Section 53 of the Act, empowers the Customs Officer with the powers of the Station House Officers. An officer invested with the power of a police officer by reason of a special status in terms of sub-section (2) of section 53 would, thus, be deemed to be police officers and for the said purposes of Section 25 of the Act shall be applicable. 32. No doubt, Abdul Rashid Noor Aga were the cases under the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity over a person from whom a confession is obtained. 35. We would also like to point out that Mr. Sushil Kumar Jain had referred to the provisions of the Police Act as well to support his submission. The preamble of the Police Act, 1861 (Act 5 of 1861), which is an Act for the regulation of a group of officers who come within the meaning of the word police provides Whereas it is expedient to re-organize the police and to make it a more efficient instrument for the prevention and detection of crime, it is enacted as follows. He argued that from the above, it can be seen that the primary object of any police establishment is prevention and detection of crime which may be provided for under the Indian Penal Code or any other specific law enacted for dealing with particular offences and bring the guilty to justice. It was submitted by him that if special authorities are created under special enactments for the same purpose i.e. prevention and detection of crime, such authorities would be Police and have to be understood in the said perspective. Sections 23 and 25 of the said Act lay down the duties of the police officers and Section 20 deals with the authority and provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or inquiry in regard to the said offence, the procedure prescribed by the Code of Criminal Procedure will give place to that provided in that Act. If the said Act entrusts investigation to an officer other than one designated as police officer, he will have to make the investigation and not the police officer. In this situation, the mere use of the words "police officer" in section 25of the Evidence Act does not solve the problem, having regard to permissible rules of interpretation of the term "police officer" in that section. It may mean any one of the following categories of officers : (i) a police officer who is a member of the police force constituted under the Police Act; (ii) though not a member of the police force constituted under the Police Act, an officer who by statutory fiction is deemed to be a police officer in charge of a police station under the Code of Criminal Procedure; and (iii) an officer on whom a statute confers powers and imposes duties of a police officer under the Code of Criminal Procedure, without describing him as a police officer or equating him by fiction to such an officer. Now, which meaning is to be attributed to the term "police officer" in a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to such police officers. As the State's power and duties increased manifold, acts which were at one time considered to be innocuous and even praiseworthy have become offences, and the police power of the State gradually began to operate on different subjects. Various Acts dealing with Customs, Excise, Prohibition, Forest, Taxes etc., came to be passed, and the prevention, detection and investigation of offences created by those Acts came to be entrusted to officers with nomenclatures appropriate to the subject with reference to which they functioned. It is not the garb under which they function that matters, but the nature of the power they exercise or the character of the function they perform is decisive. The question, therefore, in each case is, does the officer under a particular Act exercise the powers and discharge the duties of prevention and detection of crime? If he does, he will be a police officer. 38. In our view the aforesaid discussion necessitates a re-look into the ratio of Kanhiyalal Case. It is more so when this Court has already doubted the dicta in Kanhaiyalal (supra) in the case of Nirmal Singh Pehalwan (2011) 12 SCC 298 wherein after noticing both Kanhiyala ..... X X X X Extracts X X X X X X X X Extracts X X X X
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