TMI Blog2020 (11) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ay with by the 44th Amendment, it is now provided that even in an Emergency, these rights cannot be suspended see Article 359(1). The interpretation of a statute like the NDPS Act must needs be in conformity and in tune with the spirit of the broad fundamental right not to incriminate oneself, and the right to privacy, as has been found in the recent judgments of this Court. CONFESSIONS UNDER SECTION 25 OF THE EVIDENCE ACT - HELD THAT:- Whereas a formal accusation is necessary for invoking the protection under Article 20(3), the same would be irrelevant for invoking the protection under section 25 of the Evidence Act - Section 26 of the Evidence Act extends the protection to confessional statements made by persons while in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate. Custody is not synonymous with arrest , as has been held in a number of judgments of this Court custody could refer to a situation pre-arrest - section 46 of the CrPC speaks of a submission to the custody by word or action , which would, inter alia, refer to a voluntary appearance before a police officer without any formal arrest being made. PROVISIONS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 190 of the CrPC and therefore, any complaint that has to be made can only be made under section 36A(1)(d) to a Special Court, and not to a Magistrate under section 190. Shri Lekhi s argument, that the procedure under section 190 has been replaced only in part, the police report and complaint procedure under section 190 not being displaced by section 36A(1)(d), cannot be accepted. Section 36A(1)(d) specifies a scheme which is completely different from that contained in the CrPC. Whereas under section 190 of the CrPC it is the Magistrate who takes cognizance of an offence, under section 36A(1)(d) it is only a Special Court that takes cognizance of an offence under the NDPS Act. Secondly, the complaint referred to in section 36A(1)(d) is not a private complaint that is referred to in section 190(1)(a) of the CrPC, but can only be by an authorised officer. Thirdly, section 190(1)(c) of the CrPC is conspicuous by its absence in section 36A(1)(d) of the NDPS Act the Special Court cannot, upon information received from any person other than a police officer, or upon its own knowledge, take cognizance of an offence under the NDPS Act. Further, a Special Court under section 36A is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny inquiry, investigation or other proceeding, may be tendered in evidence in the trial of an offence under the said Act and proved in accordance with law. I am also unable to agree that a statement recorded under Section 67 of the NDPS Act cannot be used against an accused offender in the trial of an offence under the NDPS Act. The NDPS Act has been enacted, inter alia, to implement International Conventions relating to narcotic drugs and psychotropic substances to which India has been a party and also to implement the Constitutional policy enshrined in Article 47 of the Constitution of India, which casts a duty upon the State to improve public health and also to prohibit consumption, except for medicinal purposes, of drugs which are injurious to health - As stated in its Preamble, the NDPS Act has been enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson making it, or used for any purpose, save as provided in the proviso to the said section, that is, to confront the person making the statement, if he gives evidence as a witness, Section 53A(1) provides that a statement made and signed by a person before any officer empowered under Section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under this Act in certain circumstances specified in the said section. A statute may expressly make Section 173 of the Cr.P.C applicable to inquiries and investigations under that statute. However, in the case of a statute like the NDPS Act, where the provisions of the Cr.P.C do not apply to any inquiry/investigation, except as provided therein, it cannot be held that the officer has all the powers of a police officer to file a report under Section 173 of the Cr.P.C. The NDPS Act does not even contain any provision for filing a report in a Court of law which is akin to a police report under Section 173 of the Cr.P.C. - As per the well established norms of judicial discipline and propriety, a Bench of lesser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Garg, AOR Ms. Shrutika Garg, Adv. Mr. Shreeyash U. Lalit, Adv. Ms. Jaspreet Gogia, AOR Mr. Manish Vashishtha, AOR Mr. Amit K. Nain, AOR Mr. C. K. Sasi, AOR Mr. Kuldip Singh, AOR Mr. Aniruddha P. Mayee, AOR Mrs. Anil Katiyar, AOR Ms. Liz Mathew, AOR CRIMINAL APPEAL NO. 1750 OF 2009 CRIMINAL APPEAL NO. 2214 OF 2009 CRIMINAL APPEAL NO. 827 OF 2010 CRIMINAL APPEAL NO. 835 OF 2011 CRIMINAL APPEAL NO. 836 OF 2011 CRIMINAL APPEAL NO. 344 OF 2013 CRIMINAL APPEAL NO. 1826 OF 2013 CRIMINAL APPEAL NO. 433 OF 2014 SPECIAL LEAVE PETITION (CRL.) NO. 6338 OF 2015 CRIMINAL APPEAL NO. 77 OF 2015 CRIMINAL APPEAL NO. 90 OF 2017 CRIMINAL APPEAL NO. 91 OF 2017 SPECIAL LEAVE PETITION (CRL.) NO. 1202 OF 2017 JUDGMENT R. F. Nariman, J. 1. These Appeals and Special Leave Petitions arise by virtue of a Reference order of a Division Bench of this Court reported as Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31. The facts in that appeal have been set out in that judgment in some detail, and need not be repeated by us. After hearing arguments from both sides, the Court recorded that the Appellant in Criminal Appeal No.152 of 2013 had challenged his conviction primarily on thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a facet of the 1st issue as to whether such a statement is to be treated as statement under Section 161 of the Code or it partakes the character of statement under Section 164 of the Code. 43. As far as this second related issue is concerned we would also like to point out that Mr Jain argued that the 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 a number of judgments and there is a qualitative difference between the two sets of provisions. Insofar 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. This difference has been pointed out by the Andhra Pradesh High Court in Shahid Khan v. Director of Revenue Intelligence [2001 Cri LJ 3183 (AP)]. 3. Shri Sushil Kumar Jain, learned Senior Advocate appearing for the Appellants in Criminal Appeal Nos. 152 of 2013; 836 of 2011; 433 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to the officer thereafter moving forward. Shri Jain argued that the reason to believe must be formed before the officer acts, and that therefore, section 67 operates at a stage antecedent to the exercise of the powers of the officer designated under section 42. He then went on to argue that these provisions must be construed strictly in favour of the subject, inasmuch as they impinge upon the fundamental right to privacy, recently recognised by this Court in K.S. Puttaswamy and Anr. v. Union of India and Ors. (2017) 10 SCC 1. He also argued that the NDPS Act therefore incorporates a legislative balance between powers of investigation and the obligation to uphold privacy rights of the individual. He then went on to argue that the information under section 67 of the NDPS Act cannot be equated with evidence , which is only evidence before a court, as per the definition of evidence under the Indian Evidence Act, 1872 ( Evidence Act ). He cited judgments to show that even witness statements made under section 164 of the CrPC are not substantive evidence. He then contrasted section 67 of the NDPS Act with the power of officers under revenue acts to record evidence, suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to in section 36A(1)(d) of the NDPS Act has only reference to a complaint filed under section 59(3) therein. He also pointed out the anomalies of granting to the concerned officer under section 53 all the powers of the officer-in-charge of a police station, which, unless it ends up in the form of a final report, would leave things hanging. Thus, if the concerned officer finds that there is no sufficient evidence, and that the accused should be released, section 169 of the CrPC would apply. In the absence of section 169 of the CrPC, as has been contended by the other side, there is no procedure for discharge of the accused if evidence against him is found to be wanting. In a without-prejudice argument that complaints under the NDPS Act can be made outside of section 59(3), Shri Jain stressed the fact that there is in reality and substance no difference between the complaint under the NDPS Act and the charge-sheet under the CrPC, as investigation has already been carried out even before the complaint under the NDPS Act is made. He therefore argued that both Raj Kumar Karwal (supra) and Kanhaiyalal (supra) require to be overruled by us, as they erroneously applied earlier judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Senior Advocate stressed the various provisions of the NDPS Act which showed that it was extremely stringent, in that it had minimum sentences for even possession of what is regarded as a commercial quantity of a drug or psychotropic substance, being a minimum sentence of rigorous imprisonment of 10 years, going up to 20 years. This, coupled with various presumptions raised against the accused, and stringent bail conditions, all made the NDPS Act a very stringent measure of legislation, which, the more stringent it is, must contain necessary safeguards against arbitrary search, seizure and arrest, or else it would fall foul of the fundamental rights chapter of the Constitution. He argued that the NDPS Act was penal in nature, and contained regulatory provisions as well, but given the fact that we are concerned only with the penal provisions, could be distinguished from the revenue statutes whose dominant object is the collection of revenue, and not the punishment of crime. He stressed the fact that the enquiry under section 67 of the NDPS Act is not a judicial enquiry, but only a preliminary fact-finding exercise before a reason to believe is formed under section 42, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for purposes of contradiction. He argued that a confessional statement made to a section 41 or section 42 officer was also hit by section 25 of the Evidence Act. He added that the special procedure in section 36A of the NDPS Act applies only qua offences punishable for a term of more than three years, and where offences under the Act are punishable for terms up to three years, they are to be tried by a Magistrate under the CrPC. Obviously, officers under section 53 of the NDPS Act would investigate an offence under the Act that is punishable for a term up to three years, and file a police report, as no complaint procedure, being the procedure under section 36A of the NDPS Act, would then apply. According to him, this would show that investigation does culminate in a police report for offences punishable for a term up to three years, as a result of which section 36A(1)(d) has to be read as providing two methods of approaching a Special Court one, by way of a police report, and the other, by way of a complaint to the Special Court. 8. Shri Uday Gupta, learned Advocate appearing on behalf of the Appellant in Criminal Appeal No. 344 of 2013, supplemented the arguments of his pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 436, have now largely been incorporated in Chapter V of the CrPC, which safeguards would also operate qua confessions recorded under section 67 of the NDPS Act. According to him, section 67 on its plain language does not refer to the information spoken of in section 42, as it uses the expression require any person to produce or deliver a document, as opposed to information called for from such persons. He also argued, based on judgments of this Court, that confessions, if properly recorded, are the best form of evidence, as these are facts known to the accused, about which he then voluntarily deposes. He also argued that section 190 of the CrPC is not completely displaced by section 36A(1) (d) of the NDPS Act, in that the requirement of the filing of a complaint and/or a police report contained in section 190 continues to apply, in support of the decision in Raj Kumar Karwal (supra). He then referred in detail to Badku Joti Savant (supra), and stated that this judgment was not considered in the reference order, and that finally, the only test that is laid down by several Constitution Bench judgments to determine whether a person is or is not a police officer is whether s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference order itself being flawed, there ought to have been no reference at all, and that the judgments in Raj Kumar Karwal (supra) and Kanhaiyalal (supra) do not need reconsideration. Later judgments such as Noor Aga (supra) ought to be overruled by us, inasmuch as they are contrary to several Constitution Bench judgments of this Court. 11. Shri Saurabh Mishra, learned Additional Advocate General appearing on behalf of the State of Madhya Pradesh in SLP (Crl.) 1202 of 2017, largely reiterated the submissions of learned ASG, adding that when section 67 of the NDPS Act is used to record the confession of an accused, section 164 of the CrPC will not apply, but only section 24 of the Evidence Act makes such confessions relevant, if the conditions laid down in the section apply. He also reiterated that a statement recorded under section 67 of the NDPS Act cannot be assimilated to a statement under section 161 of the CrPC, for the reasons outlined by the learnedASG. 12. Shri Aniruddha Mayee, learned counsel appearing for the State of Gujarat in Criminal Appeal No. 2214 of 2009; 344 of 2013; and 1750 of 2009, adopted the submissions of Shri Aman Lekhi, learned ASG. 13. Having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The phrase used in Article 20(3) is to be a witness and not to appear as a witness : It follows that the protection afforded to an accused in so far as it is related, to the phrase to be a witness is not merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the Court went on to state that furnishing evidence would exclude thumb-impressions or writing specimens, for the reason that the taking of impressions of parts of the body often becomes necessary for the investigation of a crime (see page 29). Incriminating information must therefore include statements based on personal knowledge. The Court then went on to consider whether section 27 of the Evidence Act would fall foul of Article 20(3), having already been upheld when a constitutional challenge under Article 14 had been repelled by the Court in State of U.P. v. Deoman Upadhyaya (1961) 1 SCR 14. The Court held that if self-incriminatory information is given under compulsion, then the provisions of section 27 of the Evidence Act would not apply so as to allow the prosecution to place reliance on the object recovered as a result of the statement made (see pages 33-34). In the result, the Court held: (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra), these judgments were referred to, and the Court then concluded: 70. To sum up, only a person against whom a formal accusation of the commission of an offence has been made can be a person accused of an offence within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an FIR or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in court. In the instant case no such formal accusation had been made against the appellant when his statement(s) in question were recorded by the RPF officer. 20. We now come to the judgment of this Court in Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424. This case referred to the inter-play between Article 20(3) and section 161 of the CrPC as follows: 21. Back to the constitutional quintessence invigorating the ban on self-incrimination. The area covered by Article 20(3) and Section 161(2) is substantially the same. So much so, we are inclined to the view, terminological expansion apart, that Section 161(2) of the CrPC is a parliamentary gloss on the constitutional clause. The learned Advocate-General argued that Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police level is embraced by Article 20(3). This is precisely what Section 161(2) means. That sub-section relates to oral examination by police officers and grants immunity at that stage. Briefly, the Constitution and the Code are co- terminus in the protective area. While the Code may be changed, the Constitution is more enduring. Therefore, we have to base our conclusion not merely upon Section 161(2) but on the more fundamental protection, although equal in ambit, contained in Article 20(3). xxx xxx xxx 57. We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation - not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self- accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read compelled te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will take note of - the setting, the totality of circumstances, the equation, personal and social, which have a bearing on making an answer substantially innocent but in effect guilty in import. However, fanciful claims, unreasonable apprehensions and vague possibilities cannot be the hiding ground for an accused person. He is bound to answer where there is no clear tendency to criminate. 21. In Kartar Singh (supra), the majority judgment referred to Article 20(3) in the following terms: 205. In our Constitution as well as procedural law and law of Evidence, there are certain guarantees protecting the right and liberty of a person in a criminal proceeding and safeguards in making use of any statement made by him. Article 20(3) of the Constitution declares that No person accused of any offence shall be compelled to be a witness against himself . 206. Article 20(3) of our Constitution embodies the principle of protection against compulsion of self- incrimination which is one of the fundamental canons of the British System of Criminal Jurisprudence and which has been adopted by the American System and incorporated in the Federal Acts. The Fifth Amendment of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any person charged together with him at the same trial. 209. There is a clear embargo in making use of this statement of an accused given to a police officer under Section 25 of the Evidence Act, according to which, no confession made to a police officer shall be proved as against a person accused of any offence and under Section 26 according to which no confession made by any person whilst he is in custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person. The only exception is given under Section 27 which serves as a proviso to Section 26. Section 27 contemplates that only so much of information whether amounts to confession or not, as relates distinctly to the fact thereby discovered, in consequence of that information received from a person accused of any offence while in custody of the police can be proved as against the accused. 210. In the context of the matter under discussion, two more provisions also may be referred to - namely Sections 24 and 30 of the Evidence Act and Section 164 of the Code. 211. Section 24 of the Evidence Act makes a confession, caused to be made before any author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nouncements of this Court as well the High Courts which principle holds the field till date. See (1) State of U.P. v. Durga Prasad [(1975) 3 SCC 210] , (2) Balkishan A. Devidayal v. State of Maharashtra [(1980) 4 SCC 600] , (3) Ramesh Chandra Mehta v. State of W.B. [Ramesh Chandra Mehta v. State of W.B., (1969) 2 SCR 46], (4) Poolpandi v. Superintendent, Central Excise [(1992) 3 SCC 259], (5) Directorate of Enforcement v. Deepak Mahajan [(1994) 3 SCC 440], and (6) Ekambaram v. State of T.N. [1972 MLW (Cri) 261] We feel that it is not necessary to cite any more decisions and swell this judgment. 22. Ramaswamy, J. concurring in part, but dissenting on the constitutional validity of sections 9(7) and 15 of the TADA, also referred to Article 20(3) as follows: 377. Custodial interrogation exposes the suspect to the risk of abuse of his person or dignity as well as distortion or manipulation of his self-incrimination in the crime. No one should be subjected to physical violence of the person as well as to torture. Infringement thereof undermines the peoples' faith in the efficacy of criminal justice system. Interrogation in police lock-up are often done under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oral testimony given in a court or out of court, but also statements in writing which incriminated the maker when figuring as accused person. In Nandini Satpathy v. P.L. Dani it was further held that compelled testimony must be read as evidence procured not merely by physical threat or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like - not legal penalty for violation. 23. Sahai, J. in a separate opinion, concurring in part, but dissenting on the constitutional validity of section 15, referred to Article 20(3) as follows: 456. A confession is an admission of guilt. The person making it states something against himself, therefore it should be made in surroundings which are free from suspicion. Otherwise it violates the constitutional guarantee under Article 20(3) that no person accused of an offence shall be compelled to be a witness against himself. The word offence used in the article should be given its ordinary meaning. It applies as much to an offence committed under TADA as under any other Act. The word, compelled ordinarily means by force . This may ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Section 161(2) CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20(3) is decided by the trial Judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators. 180. We have already stated that the narcoanalysis test includes substantial reliance on verbal statements by the test subject and hence its involuntary administration offends the right against self-incrimination . 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 (ibid. at SCR p. 30.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutes has to be often re-examined in light of scientific advancements, we should also be willing to re-examine judicial observations with a progressive lens. 183. An explicit reference to the lie detector tests was of course made by the US Supreme Court in Schmerber [384 US 757 (1965)] decision, wherein Brennan, J. had observed at US p. 764: (L Ed p. 916) To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. 184. Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject's mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject's physiological responses ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible conveyance of personal knowledge that is relevant to the facts in issue . The results obtained from each of the impugned tests bear a testimonial character and they cannot be categorised as material evidence. 263. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of substantive due process which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law prescribing a search to obtain documents for investigating into offences was challenged as being contrary to the guarantee against self-incrimination in Article 20(3). The Court repelled the argument that a search for documents compelled a person accused of an offence to be witness against himself. Unlike a notice to produce documents, which is addressed to a person and whose compliance would constitute a testimonial act, a search warrant and a seizure which follows are not testimonial acts of a person to whom the warrant is addressed, within the meaning of Article 20(3). The Court having held this, the controversy in M.P. Sharma would rest at that. The observations in M.P. Sharma to the effect that the Constitution makers had not thought it fit to subject the regulatory power of search and seizure to constitutional limitations by recognising a fundamental right to privacy (like the US Fourth Amendment), and that there was no justification to import it into a totally different fundamental right are at the highest, stray observations. 27. 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 priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Article 20(3) of the Indian Constitution. The judgment does not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article 19. The observation that privacy is not a right guaranteed by the Indian Constitution is not reflective of the correct position. M.P. Sharma is overruled to the extent to which it indicates to the contrary. 26. The judgment of Nariman, J. held as follows: 442. The importance of Semayne case [77 ER 194] is that it decided that every man's home is his castle and fortress for his defence against injury and violence, as well as for his repose. William Pitt, the Elder, put it thus: The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail-its roof may shake -the wind may blow through it-the storm may enter, the rain may enter-but the King of England cannot enter-all his force dare not cross the threshold of the ruined tenement. A century and a half later, pretty much the same thing was said in Huckle v. Money [Huckle v. Money 95 ER 768] in which it was held that Magistrates cannot exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as the US and the UK on Article 20(3) which, on the facts of the case, was held not to be violated. Also we must not forget that this was an early judgment of the Court, delivered in the Gopalan era, which did not have the benefit of R.C. Cooper or Maneka Gandhi. Quite apart from this, it is clear that by the time this judgment was delivered, India was already a signatory to the Universal Declaration of Human Rights, Article 12 of which states: 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. xxx xxx xxx 468. It will be seen that different smaller Benches of this Court were not unduly perturbed by the observations contained in M.P. Sharma as it was an early judgment of this Court delivered in the Gopalan era which had been eroded by later judgments dealing with the interrelation between fundamental rights and the development of the fundamental right to privacy as being part of the liberty and dignity of the individual. 469. Therefore, given the fact that this j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as a most cherished human value which ensures the means of full development and evolution of a human being. The majority judgment is also correct in pointing out that Article 21 interdicts unauthorised intrusion into a person's home. Where the majority judgment goes wrong is in holding that fundamental rights are in watertight compartments and in holding that the right to privacy is not a guaranteed right under our Constitution. It can be seen, therefore, that the majority judgment is like the proverbial curate's egg-good only in parts. Strangely enough when the good parts alone are seen, there is no real difference between Subba Rao, J.'s approach in the dissenting judgment and the majority judgment. This then answers the major part of the reference to this nine-Judge Bench in that we hereby declare that neither the eight-Judge nor the six-Judge Bench can be read to come in the way of reading the fundamental right to privacy into Part III of the Constitution. xxx xxx xxx 521. In the Indian context, a fundamental right to privacy would cover at least the following three aspects: Privacy that involves the person i.e. when there is some invasion by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 25. Confession to police-officer not to be proved. No confession made to a police-officer, shall be proved as against a person accused of any offence. 26. Confession by accused while in custody of police not to be proved against him. No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Explanation. In this section Magistrate does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882). 27. How much of information received from accused may be prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, there is of course impunity for real offenders, and a great encouragement to crime. The darogah is henceforth committed to the direction he has given to the case; and it is his object to prevent a discovery of the truth, and the apprehension of the guilty parties, Who, as far as the police are concerned, are now perfectly safe. We are persuaded that any provision to correct the exercise of this power by the police will be futile; and we accordingly propose to remedy the evil, as far as possible, by the adoption of a rule prohibiting any examination whatever of any accused party by the police, the result of which is to constitute a written document. (at page 110) 31. It is important to emphasise that the interpretation of the term accused in section 25 of the Evidence Act is materially different from that contained in Article 20(3) of the Constitution. The scope of the section is not limited by time it is immaterial that the person was not an accused at the time when the confessional statement was made. This was felicitously put by this Court in Deoman Upadhyaya (supra) as follows: By Section 24, in a criminal proceeding against a person, a confession made by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l statements made by persons while in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate. Custody is not synonymous with arrest , as has been held in a number of judgments of this Court custody could refer to a situation pre-arrest, as was the case in State of Haryana and Ors. v. Dinesh Kumar (2008) 3 SCC 222 (see paragraphs 27-29). In fact, section 46 of the CrPC speaks of a submission to the custody by word or action , which would, inter alia, refer to a voluntary appearance before a police officer without any formal arrest being made. PROVISIONS CONTAINED IN THE NDPS ACT 35. At this stage, it is important to notice that the NDPS Act has been held to be a complete code on the subject covered by it. In Noor Aga (supra), this Court held: 2. Several questions of grave importance including the constitutional validity of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act ), the standard and extent of burden of proof on the prosecution vis- -vis the accused are in question in this appeal which arises out of a judgment and order dated 9- 6-2006 passed by the High Court of Punjab and Haryana in Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the CrPC and the provisions of the NDPS Act is contained in several provisions. It will be noticed that the CrPC has been expressly excluded when it comes to suspension, remission or commutation in any sentence awarded under the NDPS Act see section 32A. Equally, nothing contained in section 360 of the CrPC or in the Probation of Offenders Act, 1958 is to apply to a person convicted of an offence under the NDPS Act, subject to the exceptions that such person is under 18 years of age, and that that offence only be punishable under section 26 or 27 of the NDPS Act see section 33. 38. On the other hand, the CrPC has been made expressly applicable by the following sections of the NDPS Act: section 34(2), which refers to the form of a security bond; section 36B, which refers to the High Court s powers in appeal and revision; section 50(5), which refers to searching a person without the intervention of a Gazetted Officer or a Magistrate; and section 51, which deals with warrants, arrests, searches and seizures made under the Act. Equally, the CrPC has been applied with necessary modifications under section 36A(1)(b), when it comes to authorising the detention of a person in cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national government. There is no comprehensive law to enable exercise of control over psychotropic substances in India in the manner as envisaged in the Convention on Psychotropic Substances, 1971 to which India has also acceded. 2. In view of what has been stated above, there is an urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances which, inter alia, should consolidate and amend the existing laws relating to narcotic drugs, strengthen the existing controls over drug abuse, considerably enhance the penalties particularly for trafficking offences, make provisions for exercising effective control over psychotropic substances and make provisions for the implementation of international conventions relating to narcotic drugs and psychotropic substances to which India has become a party. 3. The Bill seeks to achieve the above objects. (emphasis supplied) 40. The very first thing that this Statement addresses is the woeful inadequacy of three old Acts, insofar as the scheme of penalties is conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commit offences, and for abetment and criminal conspiracy, are then set out. An extremely important section is section 30, where even preparation to commit an offence is made an offence- It may be remembered that in the Indian Penal Code, 1860 ( IPC ), the only section where preparation is made an offence, is preparation to commit dacoity . See Section 399, IPC. . Under section 31, where a person is already convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under the NDPS Act, and is subsequently convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, an offence punishable under the NDPS Act, the punishment then goes to up to a term which may extend to one and one-half times the maximum term of imprisonment, and shall also be liable to a fine which shall extend to one and one-half times of the maximum amount of fine. In certain circumstances under section 31A, the death penalty is also awarded. Under section 32A, no sentence awarded under the NDPS Act, other than a sentence under section 27, shall be suspended, remitted or commuted. Equally, we hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace outside India (duly authenticated by such authority or person and in such manner as may be prescribed by the Central Government) in the course of investigation of any offence under this Act alleged to have been committed by a person, and such document is tendered in any prosecution under this Act in evidence against him, or against him and any other person who is tried jointly with him, the court shall- (a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person s handwriting; and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under clause (i), also presume, unless the contrary is proved, the truth of the contents of such document. 43. Section 37(1) makes all o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of almost all the offences is fastened either on the ground of intention or knowledge or reason to believe . We are now concerned with the expressions knowledge and reason to believe . Knowledge is an awareness on the part of the person concerned indicating his state of mind. Reason to believe is another facet of the state of mind. Reason to believe is not the same thing as suspicion or doubt and mere seeing also cannot be equated to believing. Reason to believe is a higher level of state of mind. Likewise knowledge will be slightly on a higher plane than reason to believe . A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same. Section 26 IPC explains the meaning of the words reason to believe thus: 26. Reason to believe .-A person is said to have reason to believe a thing, if he has sufficient cause to believe that thing but not otherwise. 47. Section 50 of the NDPS Act contains extremely important conditions under which a search of persons shall be conducted. Section 50 states: 50. Conditions under which se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NDPS Act governing arrest, search and seizure and, in particular, the provisions of Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57 of the NDPS Act as well as the provisions of the Code of Criminal Procedure relating to search and seizure effected during investigation of a criminal case. Dealing with Section 50, it was held that in the context in which the right had been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires he shall be searched before a gazetted officer or Magistrate and on such request being made by him, to be taken before the gazetted officer or Magistrate for further proceedings. The reasoning given in Balbir Singh case [(1994) 3 SCC 299] was that to afford an opportunity to the person to be searched if he so requires to be searched before a gazetted officer or a Magistrate he must be made aware of that right and that could be done only by the empowered officer by informing him of the existence of that right. The Court went on to hold that failure to inform the person to be searched of that right and if he so requires, failure to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; (4) That there is indeed need to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act (9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Baldev Singh case [(1999) 6 SCC 172] insofar as the obligation of the empowered officer to inform the suspect of his right enshrined in sub-section (1) of Section 50 of the NDPS Act is concerned. It is also plain from the said paragraph that the flexibility in procedural requirements in terms of the two newly inserted sub-sections can be resorted to only in emergent and urgent situations, contemplated in the provision, and not as a matter of course. Additionally, sub-section (6) of Section 50 of the NDPS Act makes it imperative and obligatory on the authorised officer to send a copy of the reasons recorded by him for his belief in terms of sub-section (5), to his immediate superior officer, within the stipulated time, which exercise would again be subjected to judicial scrutiny during the course of trial. xxx xxx xxx 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson arrested and article seized under sub- section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to- (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. 52. Section 52(1)-(3) contains three separate safeguards, insofar as disposal of persons arrested and articles seized are concerned. 53. Section 57 then speaks of a person making an arrest or seizure having to make a full report of all the particulars of such arrest or seizure to his immediate official superior within forty-eight hours. Equally, under section 57A, whenever any officer notified under section 53 makes an arrest or seizure under the Act, the officer shall make a report of the illegally acquired properties of such person to the jurisdictional competent authority within ninety days of the arrest or seizure. Section 58 is extremely important, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lpable mental state. Ordinarily, even an accused may not be released on bail having regard to Section 37 of the Act. The court has the power to publish names, address and business, etc. of the offenders. Any document produced in evidence becomes admissible. A vast power of calling for information upon the authorities has been conferred by reason of Section 67 of the Act. 10. Interpretation and/or validity in regard to the power of search and seizure provided for under the said Act came up for consideration in Balbir Singh case [(1994) 3 SCC 299] wherein it was held: 10. It is thus clear that by a combined reading of Sections 41, 42, 43 and 51 of the NDPS Act and Section 4 CrPC regarding arrest and search under Sections 41, 42 and 43, the provisions of CrPC, namely, Sections 100 and 165 would be applicable to such arrest and search. Consequently the principles laid down by various courts as discussed above regarding the irregularities and illegalities in respect of arrest and search would equally be applicable to the arrest and search under the NDPS Act also depending upon the facts and circumstances of each case. 11. But there are certain other embargoes envisaged u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 165 of the Code of Criminal Procedure would be attracted in the matter of search and seizure but the same must comply with right of the accused to be informed about the requirement to comply with the statutory provisions. xxx xxx xxx 16. It is not in dispute that the said Act prescribes stringent punishment. A balance, thus, must be struck in regard to the mode and manner in which the statutory requirements are to be complied with vis- -vis the place of search and seizure. 56. Likewise, in Union of India v. Bal Mukund (2009) 12 SCC 161, this Court held: 28. Where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years, and making stringent provisions for grant of bail, scrupulous compliance with the statutory provisions must be insisted upon. 57. With this pronouncement of the law in mind, let us now examine the two questions that have been referred to us. SCOPE OF SECTION 67 OF THE NDPS ACT 58. Section 67 of the NDPS Act is set out hereinbelow: 67. Power to call for information, etc.-Any officer referred to in section 42 who is authorised in this behalf by the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reserved for uses meaning make a formal investigation . (see https://www.lexico.com/grammar/enquire-or- inquire). . As a matter of fact, the notifications issued under the Act soon after the Act came into force, which will be referred to later in the judgment, specifically speak of the powers conferred under section 42(1) read with section 67. This is an important executive reading of the NDPS Act, which makes it clear that the powers to be exercised under section 67 are to be exercised in conjunction with the powers that are delineated in section 42(1). Thus, in Desh Bandhu Gupta Co. v. Delhi Stock Exchange Assn. Ltd. (1979) 4 SCC 565, this Court referred to the principle of contemporanea expositio in the context of an executive interpretation of a statute, as follows: 9 The principle of contemporanea expositio (interpreting a statute or any other document by reference to the exposition it has received from contemporary authority) can be invoked though the same will not always be decisive of the question of construction (Maxwell 12th ed. p.268). In Crawford on Statutory Construction (1940 ed.) in para 219 (at pp. 393-395) it has been stated that administrative con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a police station. -(1) 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, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces 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 this Act. (2) 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 a police station for the investigation of offences under this Act. 62. Investigation is defined under the CrPC in section 2(h) as follows: (h) investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf; 63. By virtue of section 2(xxix) of the NDPS Act, this definition becomes applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation etc. under section 67, the same police officer will be bound by sections 160-164 of the CrPC, together with all the safeguards mentioned therein firstly, that the person examined shall be bound to answer truly all questions relating to such case put to him, other than questions which would tend to incriminate him; secondly, the police officer is to reduce this statement into writing and maintain a separate and true record of this statement; thirdly, the statement made may be recorded by audio-video electronic means to ensure its genuineness; and fourthly, a statement made by a woman can only be made to a woman police officer or any woman officer. Even after all these safeguards are met, no such statement can be used at any inquiry or trial, except for the purpose of contradicting such witness in cross-examination. In Tahsildar Singh v. State of U.P., 1959 Supp (2) SCR 875, Subba Rao J., speaking for four out of six learned Judges of this Court, had occasion to refer to the history of section 162 of the CrPC. After setting out this history in some detail, the learned Judge held: It is, therefore, seen that the object of the legislature throughout has been to exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses and record separately the statement of each one of them. Generally he records only a summary of the laments which appear to him to be relevant. These statements are, therefore only a summary of what a witness says and very often perfunctory. Indeed, in view of the aforesaid facts, there is a statutory prohibition against police officers taking the signature of the person making the statement, indicating thereby that the statement is not intended to be binding on the witness or an assurance by him that it is a correct statement. At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by Section 145 of the Evidence Act by drawing his attention to parts of the statement intended for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the same person were to be apprehended with ganja on a subsequent occasion, this time not by the State police force but by other officers for the same or similar offence, the safeguards contained in sections 161-164 of the CrPC would apply insofar as the first incident is concerned, but would not apply to the subsequent incident. This is because the second time, the investigation was not done by the State police force, but by other officers. The fact situation mentioned in the aforesaid example would demonstrate manifest arbitrariness in the working of the statute, leading to a situation where, for the first incident, safeguards available under the CrPC come into play because it was investigated by the local State police, as opposed to officers other than the local police who investigated the second transaction. 70. Take another example. If X Y are part of a drug syndicate, and X is apprehended in the State of Punjab by the local State police with a certain quantity of ganja, and Y is apprehended in the State of Maharashtra by officers other than the State police, again with a certain quantity of ganja which comes from the same source, the investigation by the State police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of a police station for investigation of offences under the NDPS Act, refers to Chapter XII of the CrPC, of which sections 161, 162 and 172 are a part. First and foremost, under section 162(1) of the CrPC, statements that are made in the course of investigation are not required to be signed by the person making them under section 53A they can be signed by the person before an officer empowered under section 53. Secondly, it is only in two circumstances [under section 53A(1)(a) and (b)] that such a statement is made relevant for the purpose of proving an offence against the accused: it is only if the person who made the statement is dead, cannot be found, is incapable of giving evidence; or is kept out of the way by the adverse party, or whose presence cannot be obtained without delay or expense which the court considers unreasonable, that such statement becomes relevant. Otherwise, if the person who made such a statement is examined as a witness, and the court thinks that in the interest of justice such statement should be made relevant and does so, then again, such statement may become relevant. None of this would be necessary if Shri Lekhi s argument were right, that a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han those officers authorised under Sections 41, 42, 43, and 44 of the NDPS Act. It appears that the legislature in its wisdom has never thought that the officers authorised to exercise the powers under Sections 41, 42, 43 and 44 cannot be the officer in charge of a police station for the investigation of the offences under the NDPS Act. 94. Investigation includes even search and seizure. As the investigation is to be carried out by the officer in charge of a police station and none other and therefore purposely Section 53 authorises the Central Government or the State Government, as the case may be, 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 a police station for the investigation of offences under the NDPS Act. 95. Section 42 confers power of entry, search, seizure and arrest without warrant or authorisation to any such officer as mentioned in Section 42 including 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case. He has also the authority to examine such person orally either by himself or by a duly authorised deputy. The officer examining any person in the course of investigation may reduce his statement into writing and such writing is available, in the trial that may follow, for use in the manner provided in this behalf in Section 162. Under Section 155 the officer in charge of a police station has the power of making a search in any place for the seizure of anything believed to be necessary for the purpose of the investigation. The search has to be conducted by such officer in person. A subordinate officer may be deputed by him for the purpose only for reasons to be recorded in writing if he is unable to conduct the search in person and there is no other competent officer available. The investigating officer has also the power to arrest the person or persons suspected of the commission of the offence under Section 54 of the Code. A police officer making an investigation is enjoined to enter his proceedings in a diary from day-to-day. Where such investigation cannot be completed within the period of 24 hours and the accused is in custody he is enjoined also to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police station. It is also clear that the final step in the investigation, viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under Section 551. (at pages 1156-1158) This statement of the law was reiterated in State of Madhya Pradesh v. Mubarak Ali (1959) Supp. 2 SCR 201 at 211, 212. 78. It is important to remember that an officer-in-charge of a police station, when he investigates an offence, begins by gathering information, in the course of which he may collect evidence relating to the commission of the offence, which would include search and seizure of things in the course of investigation, to be produced at the trial. Under the scheme of the NDPS Act, it is possible that the same officer who is authorised under section 42 is also authorised under section 53. In point of fact, Notification S.O. 822(E) issued by the Ministry of Finance (Department of Revenue), dated 14.11.1985, empowered the following officers under section 42 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers of and above the rank of sub-inspector in Central Bureau of Narcotics and Junior Intelligence Officer in Narcotics Control Bureau and of and above the rank of inspectors in the Central Board of Indirect Taxes and Customs, Directorate of Revenue Intelligence, Central Economic Intelligence Bureau to exercise the powers and perform the duties specified in section 42 within the area of their respective jurisdiction and also authorise the said officers to exercise the powers conferred upon them under section 67. S.O. 3899(E).-In exercise of the powers conferred by sub-section (1) of section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of the notification of the Government of India in the Ministry of Finance, Department of Revenue number S.O. 823(E), dated the 14th November, 1985, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), except as respects things done or omitted to be done before such supersession, the Central Government after consultation with all the State Governments hereby invests the officers of and above the rank of inspectors in the Central Board of Indirect Taxes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 42. After this, for investigation into the offence under the NDPS Act, the only route in the absence of a designated officer under section 53, would be for him to present the information gathered to an officer-in- charge of a police station, who would then investigate the offence under the NDPS Act. 85. Also, we must bear in mind the fact that the Constitution Bench s focus was on a completely different point, namely, whether the complainant and the investigator of an offence could be the same. From the point of view of this question, section 53A of the NDPS Act is not relevant and has, therefore, not been referred to by the Constitution Bench. As has been pointed out by us hereinabove, in order to determine the questions posed before us, section 53A becomes extremely important, and would, as has been pointed out by us, be rendered otiose if Shri Lekhi s submission, that a statement under section 67 is sufficient to convict an accused of an offence under the Act, is correct. For all these reasons, we do not accede either to Shri Puneet Jain s argument to refer Mukesh Singh (supra) to a larger Bench for reconsideration, or to Shri Lekhi s argument based on the same jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police officer under the Police Act and any Act for regulating criminal procedure. The authority given to police officers must naturally be to enable them to discharge their duties efficiently. Of the various duties mentioned in s. 23, the more important duties are to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances and to detect and bring offenders to justice and to apprehend all persons whom the police officer is legally authorised to apprehend. It is clear, therefore, in view of the nature of the duties imposed on the police officers, the nature of the authority conferred and the purpose of the Police Act, that the powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order. The powers of Customs Officers are really not for such purpose. Their powers are for the purpose of checking the smuggling of goods and the due realisation of customs duties and to determine the action to be taken in the interests of the revenues of the country by way of confiscation of goods on which no duty had been paid and by imposing penalties and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the police force is a police officer. A person is a member of the police force when he holds his office under any of the Acts dealing with the police. A person may be a member of the police in any other country. Officers of the police in the erstwhile Indian States and an officer of the police of a foreign country have been held in certain decided cases to be police officers within the meaning of Section 25 of the Evidence Act. There is no denying that these persons are police officers and are covered by that expression in Section 25. That expression is not restricted to the police-officers of the police forces enrolled under the Police Act of 1861. The word police is defined in S.1 and is said to include all persons who shall be enrolled under the Act. No doubt this definition is not restrictive, as it uses the expression includes , indicating thereby that persons other than those enrolled under that Act can also be covered by the word police . Sections 17 and 18 of the Police Act provide for the appointment of special police officers who are not enrolled under the Act but are appointed for special occasions and have the same powers, privileges and protection and are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1958 SCR 822]; Shewpujanrai Indrasanrai Ltd. v. Collector of Customs [1959 SCR 821]. Any enquiry under Section 171-A is deemed to be a judicial proceeding within the meaning of Sections 193 and 228 IPC, in view of its sub-section (4). It is under the authority given by this section that the Customs Officers can take evidence and record statements. If the statement which is recorded by a Customs Officer in the exercise of his powers under this section be an admission of guilt, it will be too much to say that that statement is a confession to a police officer, as a police officer never acts judicially and no proceeding before a police officer is deemed, under any provision so far as we are aware, to be a judicial proceeding for the purpose of Sections 193 and 228 IPC, or for any purpose. It is still less possible to imagine that the legislature would contemplate such a person, whose proceedings are judicial for a certain purpose, to be a person whose record of statements made to him could be suspect if such statement be of a confessional nature. (at page 350-351) 92. The majority concluded: We make it clear, however, that we do not express any opinion on the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under the Police Act, 1861 was accepted to be a police officer under section 25 of the Evidence Act, Subba Rao, J., then finally concluded that, given the functional test and the object of section 25, a customs officer would be a police officer properly so called. 96. (1) The majority view in this judgment first emphasised the point that the Land Customs Act, 1924 and the Sea Customs Act, 1878 were statutes primarily concerned with the levy of duties of customs, and ancillary to this duty, officers designated in those Acts are given certain powers to check smuggling of goods for due realisation of customs duties. In a significant sentence, the Court, therefore, stated that a customs officer is more concerned with the goods and customs duty than with the offender. (2) The persons who are not enrolled as police under the Police Act, 1861, would be included as police under the inclusive definition contained in that Act, leading to the acceptance of the broad view and rejection of the narrow view of the meaning of police officer . (3) The protection of section 25 of the Evidence Act is very wide, and applies to a confession made to any member of the police whatever his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer in charge of a police station with respect to the area to which his appointment as an Excise Officer extends. Sub-section (1) of Section 77 empowers the Collector of Excise to investigate without the order of a Magistrate any offence punishable under the Excise Act committed within the limits of his jurisdiction. Sub-section (2) of that section provides that any other Excise Officer specially empowered behalf in this by the State Government in respect of all or any specified class of offences punishable under the Excise Act may, without the order of a Magistrate, investigate any such offence which a court having jurisdiction within the local area to which such officer is appointed would have power to enquire into or try under the aforesaid provisions. By virtue of these provisions the Lieutenant Governor of Bihar and Orissa by Notification 470-F dated 15-1-1919 has specially empowered Inspectors of Excise and Sub-Inspectors of Excise to investigate any offence punishable under the Act. It is not disputed before us that this notification is still in force. By virtue of the provisions of Section 92 the Act it shall have effect as if enacted in the Act. It would thus follow that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act is not analogous to that of a Customs Officer for two reasons. One is that the Excise Officer, does not exercise any judicial powers just as the Customs Officer does under the Sea Customs Act, 1878. Secondly, the Customs Officer is not deemed to be an officer in charge of a police station and therefore can exercise no powers under the Code of Criminal Procedure and certainly not those of an officer in charge of a police station. No doubt, he too has the power to make a search, to seize articles suspected to have been smuggled and arrest persons suspected of having committed an offence under the Sea Customs Act. But that is all. Though he can make an enquiry, he has no power to investigate into an offence under Section 156 of the Code of Criminal Procedure. Whatever powers he exercises are expressly set out in the Sea Customs Act. Though some of those set out in Chapter XVII may be analogous to those of a police officer under the Code of Criminal Procedure they are not identical with those of a police officer and are not derived from or by reference to the Code. In regard to certain matters, he does not possess powers even analogous to those of a Police Officer. Thus he i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect or delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys. These questions may perhaps be relevant for consideration where the powers of the police officer conferred upon him are of a very limited character and are not by themselves sufficient to facilitate the obtaining by him of a confession. (at pages 762-766) (emphasis supplied) 99. In a significant sentence, the Court held: It is the power of investigation which establishes a direct relationship with the prohibition enacted in Section 25. (at page 768) 100. After referring to the object sought to be achieved by section 25, the Court went on to hold: This provision was thus enacted to eliminate from consideration confessions made to an officer who, by virtue of his position, could extort by force, torture or inducement a confession. An Excise Officer acting under Section 78(3) would be in the same position as an Officer in charge of a police station making an investigation under Chapter XIV of the Code of Criminal Procedure. He would likewise have the same opportunity of extorting a confession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevention of smuggling of goods and safeguarding the recovery of customs duties. (2) The mere fact that customs officers possess certain powers similar to those of police officers in regard to detection of infractions of customs laws, is not a sufficient ground for holding them to be police officers within the meaning of Section 25 of the Evidence Act, even though the word police officer are not to be construed in a narrow way but have to be construed in a wide and popular sense, as remarked in Queen v. Hurribole. The expression police officer is not of such wide meaning as to include persons on whom certain police powers are incidentally conferred. (3) A confession made to any police officer, whatever be his rank and whatever be the occasion for making it, is inadmissible in evidence but a confession made to a customs officer when he be not discharging any such duty which corresponds to the duty of a police officer will be inadmissible even if the other view be correct that he was police officer when exercising such powers. (4) The Sea Customs Act itself refers to police officer in contradistinction to Customs Officer. (5) Customs Officers act judicially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereunder for this main purpose. In order that they may carry out their duties in this behalf, powers have been conferred on them to see that duty is not evaded and persons guilty of evasion of duty are brought to book. xxx xxx xxx Section 19 lays down that every person arrested under the Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer- in-charge of the nearest police station. These sections clearly show that the powers of arrest and search conferred on Central Excise Officers are really in support of their main function of levy and collection of duty on excisable goods. (at page 702) (emphasis supplied) 107. Section 21 of the Central Excise Act, 1944 was then set out as follows: 21.(1) When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. (2) For this purpose the Central Excise Officer may exercise the same powers and shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure a Magistrate can take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence, or (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. A police officer for purposes of clause (b) above can in our opinion only be a police officer properly so-called as the scheme of the Code of Criminal Procedure shows and it seems therefore that a Central Excise Officer will have to make a complaint under clause (a) above if he wants the Magistrate to take cognizance of an offence, for example, under Section 9 of the Act. Thus though under sub-section (2) of Section 21 the Central Excise Officer under the Act has the powers of an officer in charge of a police station when investigating a cognizable case, that is for the purpose of his inquiry under sub-section (1) of Section 21. Section 21 is in terms different from Section 78(3) of the Bihar and Orissa Excise Act, 1915 which came to be considered in Raja Ram Jaiswal s case [(1964) 2 SCR 752] and which provided in terms t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspicion exists that he has been guilty of an offence under the Act (Section 173); to obtain a search warrant from a Magistrate to search any place within the local limits of the jurisdiction of such Magistrate (Section 172); to collect information by summoning persons to give evidence and produce documents (Section 171-A); and to adjudge confiscation under Section 182. He may exercise these powers for preventing smuggling of goods dutiable or prohibited and for adjudging confiscation of those goods. For collecting evidence the Customs Officer is entitled to serve a summons to produce a document or other thing or to give evidence, and the person so summoned is bound to attend either in person or by an authorized agent, as such officer may direct, and the person so summoned is bound to state the truth upon any subject respecting which he is examined or makes a statement and to produce such documents and other things as may be required. The power to arrest, the power to detain, the power to search or obtain a search warrant and the power to collect evidence are vested in the Customs Officer for enforcing compliance with the provisions of the Sea Customs Act. For purpose of Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Sea Customs Act, 1878 and the Customs Act, 1962, highlighting the fact that section 108 of the Customs Act, 1962 confers power on a gazetted officer of Customs to summons persons for giving evidence or producing documents - see page 617. Section 104(3) of the Customs Act, 1962 was strongly relied upon by learned counsel appearing on behalf of the appellant in that case, which section provided that where an officer of customs has arrested any person under sub-clause (1) of section 104, he shall for the purpose of releasing such person on bail or otherwise have the same power and be subject to the same provisions as an officer-in-charge of a police station has and is subject to under the CrPC. It was noticed that the offences under the Customs Act were non-cognizable see section 104(4). It was then held that the expression otherwise clearly relates to releasing a person who has been arrested and cannot encompass anything beyond that see page 617. Raja Ram Jaiswal (supra) was referred to, including the test laid down in that judgment at page 766 see pages 619, 620. Badku Joti Savant (supra) was then referred to. The Court concluded: It was reiterated that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer of the Force that there is no sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the officer of the Force may direct, to appear, if and when so required before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior. 117. The Court held: 18. The right and duty of an Investigating Officer to file a police report or a charge-sheet on the conclusion of investigation is the hallmark of an investigation under the Code. Section 173(1)(a) of the Code provides that as soon as the investigation is completed the officer-in- charge of the police-station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. The officer conducting an inquiry under Section 8(1) cannot initiate court proceedings by filing a police report as is evident from the two Provisos to Section 8(2) of the Act. Under Proviso (a), if the officer of the Force is of the opinion that there is sufficient evidence or reasonable grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich defines duties of every superior officer and member of the Force provides that they must promptly execute all orders lawfully issued to them by their superior authority; protect and safeguard Railway property; remove any obstruction in the movement of Railway property and do any other act conducive to the better protection and security of Railway property. Section 14 imposes a duty on the superior officers and members of the Force to make over persons arrested by them to a police officer or to take them to the nearest police station. These provisions are incompatible with the position that a member of the Railway Protection Force holding an inquiry under Section 8(1) of the Act can be deemed to be a police officer-in-charge of a police station investigating into an offence. Members of the Force are appointed under the authority of the Railway Protection Force Act, 1957, the prime object of which is the better protection and security of Railway property. Powers conferred on members of the Force are all directed towards achieving that object and are limited by it. It is significant that the Act of 1957, by Section 14, makes a distinction between a member of the Force and a police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed by the officer before whom the accused person is produced. 31. Reading Section 7 of the 1966 Act with that of Section 14 of the 1957 Act, it is clear that while in the case of a person arrested under Section 12 of the 1957 Act the only course open to the superior officer or member of the Force was to make over the person arrested to a police officer, in the case of a person arrested for a suspected offence under the 1966 Act, he is required to be produced without delay before the nearest officer of the Force, who shall obviously be bound [in view of Article 22(1) of the Constitution] to produce him further before the Magistrate concerned. 121. The Court then referred to section 8 of the Act, making it clear that the enquiry under section 8(1) shall be deemed to be a judicial proceeding see paragraph 34. Differences between sections 161-162 of the CrPC and sections 9(3) and (4) of the Act were then pointed out as follows: 35. The fourth important aspect in which the power and duty of an officer of the RPF conducting an inquiry under the 1966 Act, differs from a police investigation under the Code, is this. Sub-section (3) of Section 161 of the Code says that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g an inquiry under the 1966 Act, cannot, by any stretch of imagination, be called an officer in charge of a police station within the meaning of Sections 173 and 190(b) of the Code. The mode of initiating prosecution by submitting a report under Section 173 read with clause (b) of Section 190 of the Code is, therefore, not available to an officer of the RPF who has completed an inquiry into an offence under the 1966 Act. The only mode of initiating prosecution of the person against whom he has successfully completed the inquiry, available to an officer of the RPF, is by making a complaint under Section 190(1)(a) of the Code to the Magistrate empowered to try the offence. That an officer of the Force conducting an inquiry under Section 8(1) cannot initiate proceedings in court by a report under Sections 173/190(1)(b) of the Code, is also evident from the provisos to sub-section (2) of Section 8 of the 1966 Act. Under proviso (a), if such officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused, he shall either direct him (after admitting him to bail) to appear before the Magistrate having jurisdiction or forward him in custody t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be excluded from evidence under the said section. 124. In State of Gujarat v. Anirudhsing and Anr. (1997) 6 SCC 514, one of the questions which arose before this Court was as to whether a member of the State Reserve Police Service acting under the Bombay State Reserve Police Force Act, 1951 could be said to be a police officer within the meaning of section 25 of the Evidence Act. The Court analysed the aforesaid Bombay Act, and set out section 11(1) thereof, which states: When employed on active duty at any place under sub- section (1) of Section 10, the senior reserve police officer of highest rank, not being lower than that of a Naik present, shall be deemed to be an officer-in-charge of a police station for the purposes of Chapter IX of the Code of Criminal Procedure, 1898, Act V of 1898. 125. Since Chapter IX of the Code of Criminal Procedure, 1898, which is the equivalent of Chapter X of the CrPC, deals with maintenance of public order and tranquillity , the Court held: 19. It would, thus, be clear that a senior reserve police officer appointed under the SRPF Act, though is a police officer under the Bombay Police Act and an officer-in- charge of a police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral Constitution Benches of this Court, as has been pointed out by us hereinabove, as also other Division Benches, and has never been doubted. In fact, it has always been distinguished in the revenue statute cases as well as the railway protection force cases as being a case in which all powers of investigation, which would lead to the filing of a police report, were invested with excise officers, who therefore, despite not belonging to the police force properly so-called, must yet be regarded as police officers for the purpose of section 25 of the Evidence Act. The vital link between section 25 and such officers then gets established, namely, that in the course of investigation it is possible for such officers to take a shortcut by extorting confessions from an accused person. 128. At this point, we come to the decision in Raj Kumar Karwal (supra). In this case, the very question that arises before us arose before a Division Bench of this Court. The question was set out by the Division Bench as follows: 1. Are the officers of the Department of Revenue Intelligence (DRI) who have been invested with the powers of an officer-in-charge of a police station under Section 53 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which we have extracted earlier. Section 55 requires an officer- in-charge of a police station to take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under the Act within the local area of that police station and which may be delivered to him. Section 57 enjoins upon any officer making an arrest or effecting seizure under the Act to make a full report of all the particulars of such arrest or seizure to his immediate official superior within 48 hours next after such arrest or seizure. 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, for the purpose of investigation of offences under the Act. 131. After referring to sections 41, 42, 43, 44, 52, 52A and 57 of the NDPS Act, the Court concluded that these powers are more or less similar to the powers conferred on customs officers under the Customs Act, 1962 see paragraph 21. The Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would conclude in a police report but if the investigation is made by an officer of any other department including the DRI, the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned government. Needless to say that such a complaint would have to be under Section 190 of the Code. This clause, in our view, clinches the matter. 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. That being so, the case does not satisfy the ratio of Badku Joti Savant and subsequent decisions referred to earlier. 132. Despite the fact that Raj Kumar Karwal (supra) notices the fact that the NDPS Act prescribes offences which are very severe and that section 25 is a wholesome protection which must be understood in a broad and popular sense, yet it arrives at a conclusion that the designated officer under section 53 of the NDPS Act cannot be said to be a police officer under section 25 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to the Central Excise Act; Romesh Chandra Mehta (supra), with reference to the Sea Customs Act; Illias (supra), with reference to the Customs Act; and Durga Prasad (supra) and Balkishan (supra) with reference to the Railway Act, to be in aid of the dominant object of the statutes in question, which as already alluded to were not primarily concerned with the prevention and detection of crime, unlike the NDPS Act. Also, importantly, none of those statutes recognised the power of the State police force to investigate offences under those Acts together with the officers mentioned in those Acts, as is the case in the NDPS Act. No question of manifest arbitrariness or discrimination on the application of Article 14 of the Constitution of India would therefore arise in those cases, unlike cases which arise under the NDPS Act, as discussed in paragraphs 67 to 70 hereinabove. 133. The Bench also failed to notice section 53A of the NDPS Act and, therefore, falls into error when it states that the powers conferred under the NDPS Act can be assimilated with powers conferred on customs officers under the Customs Act. When sections 53 and 53A are seen together in the context of a statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y him, to the person, if any, by whom the information relating to the commission of the offence was first given. 136. Section 36A of the NDPS Act provides as follows: 36A. Offences triable by Special Courts.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government; (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 (2 of 1974), such Magistrate may authorise 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 in cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yond the said period of one hundred and eighty days. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. 137. What is clear, therefore, is that the designated officer under section 53, invested with the powers of an officer in charge of a police station, is to forward a police report stating the particulars that are mentioned in section 173(2) CrPC. Because of the special provision contained in section 36A(1) of the NDPS Act, this police report is not forwarded to a Magistrate, but only to a Special Court under section 36A(1)(d). Raj Kumar Karwal (supra), when it states that the designated officer cannot submit a police report under section 36A(1)(d), but would have to submit a complaint under section 190 of the CrPC misses the importance of the non obstante clause contained in section 36A(1), which makes it clear that the drill of section 36A is to be followed notwithstanding anything contained in section 2(d) of the CrPC. It is obvious that section 36A(1)(d) is inconsistent with section 2(d) and section 190 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y its absence when the Central Government authorises an officer under section 36A(1)(d). Also, both section 53(1) and (2) refer to officers who belong to particular departments of Government. Section 36A(1)(d) does not restrict the officer that can be appointed for the purpose of making a complaint to only an officer belonging to a department of the Central/State Government. There can also be a situation where officers have been designated under section 53 by the Government, but not so designated under section 36A(1)(d). It cannot be that in the absence of the designation of an officer under section 36A(1)(d), the culmination of an investigation by a designated officer under section 53 ends up by being an exercise in futility. 139. Take the anomalous position that would arise as a result of the judgment in Raj Kumar Karwal (supra). Suppose a designated officer under section 53 of the NDPS Act investigates a particular case and then arrives at the conclusion that no offence is made out. Unless such officer can give a police report to the Special Court stating that no offence had been made out, and utilise the power contained in section 169 CrPC to release the accused, there would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the investigating officer is a police officer or an officer designated under section 53 of the NDPS Act, would arise only if the view in Raj Kumar Karwal (supra) is correct. 142.A third anomalous situation would arise, in that under section 36A(1)(a) of the NDPS Act, it is only offences which are punishable with imprisonment for a term of more than three years that are exclusively triable by the Special Court. If, for example, an accused is tried for an offence punishable under section 26 of the NDPS Act, he may be tried by a Magistrate and not the Special Court. This being the case, the special procedure provided in section 36A(1)(d) would not apply, the result being that the section 53 officer who investigates this offence, will then deliver a police report to the Magistrate under section 173 of the CrPC. Absent any provision in the NDPS Act truncating the powers of investigation for prevention and detection of crimes under the NDPS Act, it is clear that an offence which is punishable for three years and less can be investigated by officers designated under section 53, leading to the filing of a police report. However, in view of Raj Kumar Karwal (supra), a section 53 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h arise under the NDPS Act it is not circumscribed by a provision which requires previous sanction for an offence committed under section 58, as that would do violence to the plain language of section 36A(1)(d). This argument is, therefore, rejected. It is always open, therefore, to the designated officer, designated this time for the purpose of filing a complaint under section 36A(1)(d), to do so before the Special Court, which is a separate procedure provided for under the special statute, in addition to the procedure to be followed under section 53, as delineated hereinabove. 145. Shri Lekhi, however, argued that section 53 does not use the expression deemed and that therefore, the power contained in section 53(1) is only a truncated power to investigate which does not culminate in a police report being filed. We cannot agree. The officer who is designated under section 53 can, by a legal fiction, be deemed to be an officer in charge of a police station, or can be given the powers of an officer in charge of a police station to investigate the offences under the NDPS Act. Whether he is deemed as an officer in charge of a police station, or given such powers, are only diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms or Commissioner of Customs may, during the course of any enquiry in connection with the smuggling of any goods,- (a) require any person to produce or deliver any document or thing relevant to the enquiry; (b) examine any person acquainted with the facts and circumstances of the case. 108. Power to summon persons to give evidence and produce documents.-(1) Any Gazetted Officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or Rules made thereunder: Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused. (2) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily. 148. Even a cursory look at the provisions of these statutes would show that there is no parallel whatsoever between section 67 of the NDPS Act and these provisions. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon; (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank of an Assistant Commissioner of Police in the Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, should investigate any offence punishable under this Act of 1987. This is necessary in view of the drastic provisions of this Act. More so when the Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention Act, 1956 under Section 13, authorise only a police officer of a specified rank to investigate the offences under those specified Acts. (5) The police officer if he is seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such mandate is inherent in the process of recording a confession by a statutory authority. What is necessarily implicit is, perhaps, made explicit. But the notable safeguards which were lacking in TADA are to be found in sub-sections (4) and (5). 157. The lofty purpose behind the mandate that the maker of the confession shall be sent to judicial custody by the CJM before whom he is produced is to provide an atmosphere in which he would feel free to make a complaint against the police, if he so wishes. The feeling that he will be free from the shackles of police custody after production in court will minimise, if not remove, the fear psychosis by which he may be gripped. The various safeguards enshrined in Section 32 are meant to be strictly observed as they relate to personal liberty of an individual. However, we add a caveat here. The strict enforcement of the provision as to judicial remand and the invalidation of the confession merely on the ground of its non-compliance may present some practical difficulties at times. Situations may arise that even after the confession is made by a person in custody, police custody may still be required for the purpose of further invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards laid down in Section 52 of POTA which are modelled on the guidelines envisaged by D.K. Basu [(1997) 1 SCC 416]. Section 52 runs as under: 52. (1) Where a police officer arrests a person, he shall prepare a custody memo of the person arrested. (2) The person arrested shall be informed of his right to consult a legal practitioner as soon as he is brought to the police station. (3) Whenever any person is arrested, information of his arrest shall be immediately communicated by the police officer to a family member or in his absence to a relative of such person by telegram, telephone or by any other means and this fact shall be recorded by the police officer under the signature of the person arrested. (4) The person arrested shall be permitted to meet the legal practitioner representing him during the course of interrogation of the accused person: Provided that nothing in this sub-section shall entitle the legal practitioner to remain present throughout the period of interrogation. Sub-sections (2) and (4) as well as sub-section (3) stem from the guarantees enshrined in Articles 21 and 22(1) of the Constitution. Article 22(1) enjoins that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment. J. (R. F. Nariman) J. (Navin Sinha) Crl.A. No. 827/2010 Crl.A. No. 2214/2009 Crl.A. No. 1750/2009 Crl.A. No. 836/2011 Crl.A. No. 835/2011 Crl.A. No. 77/2015 Crl.A. No. 344/2013 Crl.A. No. 1826/2013 Crl.A. No. 433/2014 Crl. A. No 2020 @ SLP(Crl) No. 6338/2015 Crl.A. No. 91/2017 Crl.A. No. 90/2017 Crl. A. No 2020 @ SLP(Crl) No. 1202/2017 JUDGMENT Indira Banerjee, J. I have gone through the draft judgment prepared by my esteemed brother, Rohinton F. Nariman, J. but have not been able to persuade myself to agree that the officers invested with powers under Section 53 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) are police officers within the meaning of Section 25 of the indian Evidence Act, 1872 or that any confessional statement made to them would be barred under the provisions of Section 25 or 26 of the Evidence Act. In my view, any statement made or document or other thing given to an authorised officer referred to in Section 42 of the NDPS Act or an officer invested under Section 53 with the powers of an Officer in Charge for the purpose of investigation of an offence under the said Act, in the course of any inquiry, investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r weapons. There are numerous drug trafficking mafia yielding, immense power in various regions of the world, including India. The far-reaching consequences of illicit drug trade, even threatens the integrity and stability of governments and renders law enforcement action vulnerable. 6. Considering the huge profits derived by drug barons from rampant consumption of opium and other narcotic drugs, tycoons of the drug cartels, who have international links, go to any extent, to exploit and manipulate unhealthy economic conditions, as well as corruption and weaknesses in the administration, to push drugs into the society, in complete disregard of the health, morality and well- being of the people. 7. India has been directly engulfed in drug trafficking by virtue of its geographical location, flanked on three sides by illicit narcotic drug production regions. To the West lies the Golden Crescent, comprising Iran, Afghanistan and Pakistan, which illegally produce a huge volume of opium, converted into heroin in illicit factories. In the East, the Golden Triangle is made up of Burma, Thailand and Laos, which produce thousands of tons of opium, cultivated over thousands of hectares o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neva Opium Agreement, 1925 which came into force in 1926. The Geneva Opium Agreement made elaborate recommendations in respect, of the problems relating to intake and illicit traffic of opium. The next Convention was held at Geneva in 1931 for limiting the manufacture as well as regulating the distribution of Narcotic drugs. In 1936, another Convention for the suppression of illicit traffic in dangerous drugs was held in Geneva. The Resolutions adopted in the convention came into force in 1939. 14. In 1946, the United Nations established the Commission for Narcotic Drugs as a functional Commission of the Economic and the Social Council. In 1953, the Commission formulated Protocols for limiting and regulating the cultivation of opium plant, international whole-sale trade in opium and the use of opium. 15. In 1961 a Single Convention of Narcotic Drugs was adopted by the United Nations with the objects of: - 1. Codification of the existing multilateral Convention on drugs. 2. Simplification of the International Control Machinery. 3. Extension of the Control System to the cultivation of other natural products like Cannabis, Resin and Coca leaves in addition to opium and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd territorial integrity of States and affairs of other States. 3. A Party shall not undertake in the territory of another Party the exercise of jurisdiction and performance of functions which are exclusively reserved for the authorities of that other party by its domestic law . 20. The Resolutions passed in the said Convention pertained to offences and sanctions relating to illicit trafficking in narcotic drugs and psychotropic substances, exercise of Jurisdiction, confiscation, extradition, mutual legal assistance, transfer of proceedings, co- operation and training, international cooperation and assistance, controlled delivery, enactment of provisions to prevent diversion of trade, materials and equipment for illicit production of narcotic drugs and psychotropic substances, measures to eradicate illicit cultivation of narcotic plants and elimination of illicit demand for narcotic drugs and psychotropic substances. 21. India participated in many of the international conferences and/or conventions. India had participated in the Second International Opium Conference at Geneva on 17th November, 1924 and again on 19th February, 1925, and adopted the convention relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons for the NDPS Act as laid before Parliament is as under: The statutory control over narcotic drugs is exercised in India through a number of Central and State enactments. The Principal Central Acts, namely, the Opium Act, 1857, the Opium Act, 1878 and the Dangerous Drugs Act, 1930 were enacted a long time ago. With the passage of time and the developments in the field of illicit drug traffic and drug abuse at national and international level many deficiencies in the existing laws have come to notice, some of which are indicated below: (i) The scheme of penalties under the present Acts is not sufficiently deterrent to meet the challenge of well organised gangs of smugglers. The Dangerous Drugs Act, 1930 provides for a maximum term of imprisonment of three years with or without fine and four years imprisonment with or without fine with repeat offences. Further, no minimum punishment is prescribed in the present laws, as a result of which drug traffickers have been sometimes let off by the courts with nominal punishment. The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from some of our neighbouring coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Chapters I to VIII, comprises 83 sections. Chapter I contains the short title of the Act, definitions of various words and expressions used therein and a provision enabling addition to and deletion from the list of psychotropic substances. 31. Chapter II of the NDPS Act enables the Central Government to take measures for preventing and combating the abuse of narcotic drugs and psychotropic substances and the illicit traffic therein and also empowers the Central and/or State Government to appoint inter alia a Commission, a Consultative Committee, other authorities and officers for the purposes of the said Act. Chapter IIA inter alia provides for the constitution of a National Fund for control of drug abuse. 32. In exercise of power conferred by Section 4(3) of the NDPS Act, the Central Government constituted the Narcotics Control Bureau, hereinafter referred to as NCB. The officers of the NCB are not police officers, but are from different departments of the Government, including officers of the Directorate of Revenue Intelligence, Customs Officers and Central Excise Officers. 33. The Narcotics Control Bureau (NCB) has been combating drug trafficking in India. Moreover, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orne in mind that the Act was enacted having regard to the mandate contained in International Conventions on Narcotic Drugs and Psychotropic Substances. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, in our opinion, would not render the impugned provisions unconstitutional. 35. A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld. xxx xxx xxx 55. The provisions of Section 35 of the Act as also Section 54 thereof, in view of the decisions of this Court, therefore, cannot be said to be ex facie unconstitutional. We would, however, keeping in view the principles noticed hereinbefore examine the effect thereof, vis-`-vis the question as to whether the prosecution has been able to discharge its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the time being in force, or of any rule made thereunder which imposes any restriction or provides for a punishment not imposed by or provided for under this Act or imposes a restriction or provides for a punishment greater in degree than a corresponding restriction imposed by or a corresponding punishment provided for by or under this Act for the cultivation of cannabis plant or consumption of, or traffic in, any narcotic drug or psychotropic substance within India. 43. The scheme of the NDPS Act makes it patently clear that it essentially makes provisions, as are deemed necessary, for preventing and combating the abuse of and illicit trade and trafficking in narcotic drugs and psychotropic substances, including the financing of (i) the cultivation of coca plant; (ii) cultivation of opium poppy or any cannabis plant; (iii) the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use, consumption, import inter-State, export inter- State, import into India, export from India or transhipment of narcotic drugs or psychotropic substances; (iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) to provide that no sentence awarded under the Act shall be suspended, remitted or commuted; (iv) to provide for pre-trial disposal of seized drugs; (v) to provide death penalty on second conviction in respect of specified quantities of certain drugs; (vi) to provide for forfeiture of property and detailed procedure relating to the same; and (vii) to provide that the offences shall be congnizable and non- bailable. (3) The Bill seeks to achieve the above objectives. 46. The NDPS Act was further amended by the NDPS (Amendment) Act, 2001, to rationalize the sentence structure to ensure that drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, but addicts and others who commit less serious offences, are sentenced to less severe punishment. There were further amendments by the NDPS (Amendment) Act 2014 and the Finance Act 2016 (28 of 2016). 47. However, despite an elaborate statutory framework, the NDPS Act is not being effectively implemented. It is difficult to check the expanding network of drug-traffickers. To evade the enforcement authorities, the drug traffickers take recourse to the most ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... location of India which has massive inflow of heroin and hashish from across the Indo-Pak border originating from Golden Crescent comprising of Iran, Afghanistan and Pakistan which is one of the major illicit drug supplying areas of the world. On the North Eastern side of the country is the Gold Triangle comprising of Burma, Loas and Thailand which is again one of the largest sources of illicit opium in the world. Nepal also is a traditional source of cannabis, both herbal and resinous. Cannabis is also of wide growth in some states of India. As far as illicit drug trafficking from and through India is concerned, these three sources of supply have been instrumental in drug trafficking. Prior to the enactment of the Narcotic Drugs and Psychotropic Substances Act, 1985, the statutory control over narcotic drugs was exercised in India through a number of Central and State enactments. The principal Central Acts were (a) the Opium Act, 1857, (b) the Opium Act, 1878 and (c) the Dangerous Drugs Act, 1930. 50. Socio-economic crimes such as trafficking in narcotic drugs and psychotropic substances, food adulteration, black marketing, profiteering and hoarding, smuggling, tax evasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 28, attempts to commit an offence entail punishment for the offence. Section 29 makes abetment of and criminal conspiracy to commit an offence, under the NDPS Act punishable with the punishment for the offence. Section 30 prescribes punishment of rigorous imprisonment for preparation for offences, for a term which is not to be less than one half of the minimum term if any, but might extend to one half of the maximum term of imprisonment, which might have been awarded for committing the offence. Section 31 provides for enhanced punishment for offences repeated after previous conviction including death sentence in some exceptional cases. Certain provisions, such as Sections 35, 54 and 66 for presumptions, though rebuttable, also operate against the accused under the NDPS Act. When a statute has drastic penal provisions, the authorities investigating the crime under such law, have a greater duty of care, and the investigation must not only be thorough, but also of a very high standard. 54. There are inbuilt safeguards in the NDPS Act to protect a person accused of an offence under the said Act, from unnecessary harassment, or malicious or wrongful prosecution. Reference may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding 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 place. 57. Section 42 enables a duly empowered officer to enter any building, conveyance or place, conduct a search, seize narcotic drugs, psychotropic substances, and other articles in accordance with Section 42(1)(c), and detain, search or even arrest any person, subject to his having the reason to believe, from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have a reason to believe if he has sufficient cause to believe the same. 61. In Income Tax Officer, I Ward, District VI, Calcutta and Ors. v. Lakhmani Mewal Das (1976) 3 SCC 757 cited by Mr. Jain, this court held:- 8. ..The expression reason to believe does not mean a purely subjective satisfaction on the part of the Income Tax Officer. The reason must be held in good faith. It cannot he merely a pretence. It is open to the court to examine whether the reasons for the formation of the belief have a rational connection with or a relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose of the section. 62. The absence of reasons to believe would render entry, search, seizure or arrest, Sections 41(2) 42, 43 and 44 of the NDPS Act bad in law and also expose the officer concerned to disciplinary action as also punishment under Section 58 for a vexatious entry, search, seizure or arrest, as argued by Mr. Jain. 63. The power of an officer authorised under Section 42, to stop and search conveyance under Section 49, is subject to his having reasons to suspect that any animal or conveyance is, or is about to be, used for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing factors: (a) the use or threat of use of violence or arms by the offender; (b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence; (c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence; (d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities; (e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offence; and (f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence. 68. The NDPS Act is a complete code. The NDPS Act specifically makes some provisions of the Cr.P.C applicable to proceedings under the NDPS Act. The Act is very specific on which of the provisions of the Cr.P.C. are to apply to proceedings under the NDPS Act. 69. A careful reading of the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as may be, all the powers of Appeal and Revision conferred by Chapter XXIX and XXX of the Cr.P.C. as if a Special Court within the limits of its territorial jurisdiction were a Court of Session. [Section 36 B] (xi) Save as otherwise provided in the NDPS Act, the provisions of the Cr.P.C., (including provisions as to bails and bonds) are to apply to proceedings before a Special Court and for the purpose of the said provisions, the Special Court is deemed to be a Court of Session and the person conducting prosecution before Special Court is deemed to be a Public Prosecutor. [Section 36 C] (xii) Until a Special Court is constituted as per the NDPS (Amendment) Act, 1988, any offence triable by a Special Court, is, notwithstanding anything in the Cr.P.C., triable by a Court of Session. [Section 36 D] (xiii) The power of the High Court under Section 407 of the Cr.P.C. to transfer cases is not affected by Section 36 D (2) in view of the proviso thereto. (xiv) Notwithstanding anything in the Cr.P.C. every offence punishable under the NDPS Act is cognizable. [Section 37(1)(a)] (xv) Notwithstanding anything in the Cr.P.C., no person accused of the offences specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto, trying or otherwise dealing with such offences. 71. Referring to Section 4(2) of the Cr.P.C Mr. Sushil Kumar Jain, argued that provisions of the Cr.P.C would apply to all proceedings under the NDPS Act, unless intention to the contrary was shown. Mr. Jain also referred to Section 2(xxix) of the NDPS Act in support of his aforesaid submission. 72. However, Section 5 of the Cr.P.C., set out hereinbelow for convenience, provides:- 5. Saving.-Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 73. Mr. Jain s argument that the Cr.P.C. would apply to all proceedings under the NDPS Act, unless a contrary intention is shown, by reference to Section 4(2) of the Cr.P.C., cannot be sustained, as Section 5 specifically provides that nothing in the Cr.P.C shall, in the absence of a specific provision to the contrary, affect any special law in force or any special jurisdiction or power conferred by any other law. The NDPS Act being a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) or 42, also being invested under Section 53, with the powers of an Officer in Charge of a Police Station for investigation of offences under Section 53 of the NDPS Act. There being no bar under the NDPS Act, the same officer empowered under Section 42, who had triggered the process of an enquiry, and made any search seizure or arrest under Chapter V of the NDPS Act, on the basis of information provided by an informant, or on the basis of his own personal knowledge, might investigate into the offence if he is also invested under Section 53, with the powers of investigation of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act. 79. There does not appear to be any provision in Chapter V or elsewhere in the NDPS Act, which can reasonably be construed to render an officer under Section, 41(2) or 42(1) of the NDPS Act functus officio once the entry, search, seizure or arrest has been made. What Section 42(2) requires is that, an officer who takes down any information in writing under Section 42(1) or records the grounds of his belief under the proviso thereto, should send a copy of the information with the grounds of belie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Jain, which were rendered in the context of statements under Section 164 of the Cr.P.C. The judgments are of no assistance to the Appellants as they are not binding precedents in respect of the issues referred to this Bench. Sections 161 to 164 of the Cr.P.C. have no application to proceedings under the NDPS Act, as discussed earlier. 84. The judgment of this Court in Munshi Prasad and Ors. v. State of Bihar (2002) 1 SCC 351 cited by Mr. Jain, in the context of reliance on a post mortem report in a murder trial, is also of no assistance to the appellant, as this Court had no occasion to deal with Section 52A(4) or 54 or 66 or any other provision of the NDPS Act. 85. The NDPS Act, being a special statute, and in any case a later Central Act, the provisions of the NDPS Act would prevail, in case of any inconsistency between the NDPS Act and the Evidence Act. Section 52A(4) expressly provides: Notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged to have been committed by a person, and such document is tendered in any prosecution under this Act in evidence against him, or against him and any other person who is tried jointly with him, the court shall- (a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reason ably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person s handwriting; and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under clause (i), also presume, unless the contrary is proved, the truth of the contents of such document. 89. Section 67 of the NDPS Act provides that any officer referred to in Section 42, who is duly authorized in this behalf by the Central or State Government, may during the course of any inquiry: (i) call for information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs respectively assigned to them in that Code. 95. The definition of the terms inquiry and investigation as contained in Sections 2(g) and 2(h) of the Cr.P.C. are as follows: 2.(g) inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court; (h) investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf 96. The meaning of a word or expression used in a statute can be construed and understood as per its definition, unless the context otherwise requires . The definition of inquiry in Section 2(g) of the Cr.P.C. does not help to interpret the word inquiry in Section 67 of the NDPS Act or in any other provision of Chapter V thereof, since an inquiry under Chapter V of the NDPS Act is not by any Magistrate or Court. 97. It is well settled that a word not specifically defined in a statute may be interpreted as per its ordinary meaning, which may be ascertained by reference to a dictionary. As per the Concise Oxford English Dictionary (Eleventh Edition) the word inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to above, the use of the expressions in the statutes referred to above and having regard to the language and tenor of Sections 53, 53A, and Section 67 of the NDPS Act, the expression inquiry may reasonably be construed as a generic expression, which could include the investigation of an offence. An inquiry as contemplated in Section 67 is the collection of information generally, to find out if there has been any contravention of the NDPS Act, whereas investigation is the probing of an offence under the NDPS Act and collection of materials to find out the truth of the case sought to be made out against an accused offender. However investigation may follow an enquiry or be part of an enquiry. This is evident from a reading of the NDPS Act as a whole. 101. The difference between the terms investigation and inquiry is, however, not really material to the issue of whether an officer invested under Section 53 with the powers of the Officer in Charge of a Police Station for investigation of an offence under the NDPS Act, is a police officer within the meaning of Section 25 of the Evidence Act or whether a statement made in an inquiry as contemplated in Section 67, can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act call for information etc. The power to make an enquiry flows from the various provisions of Chapter V of the NDPS Act. 106. Section 67 empowers an authorized officer, referred to in Section 42, to do the following acts during the course of an enquiry: (a) 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; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case. 107. Investigation of an offence under the NDPS Act, is a part of an inquiry under Chapter V of the said Act. Investigation of an offence under the NDPS Act can be carried out by the same officer empowered under Section 42, who triggered the proceedings under Chapter V of the NDPS Act and carried out search, seizure and/or arrest, if that officer is also invested under Section 53 of the NDPS Act, with the powers of an Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o read into Sections 41, 42 etc the words after an inquiry which do not exist in those provisions. Nor is it permissible to read the words before or at the time of entry, search, seizure or arrest after the words during the course of any enquiry in Section 67. 111. The power conferred by Section 67 on an officer referred to in Section 42, duly authorised by the Central/State Government in this behalf, to call for information, require production of any document or thing or to examine any person, etc. is exercisable in course of any inquiry. The power could be exercised at any stage of the enquiry, before a complaint is filed. The powers can be exercised prior to or after exercise of powers under Sections 41/42 and would include the stage of investigation of an offence by an officer referred to in Section 42, if he is also invested with powers under Section 50 of the NDPS Act. 112. An officer referred to in Section 42 of the NDPS Act, if not invested with powers under Section 53 of the said Act, derives the power to call for information, require production of documents and things and to examine persons from Section 67 of the NDPS Act. The powers of investigation of an Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. 155. Information as to non-cognizable cases and investigation of such cases.-(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after recording such instructions on such report, transmit the same without delay to the Magistrate. xxx xxx xxx 160. Police officer s power to require attendance of witnesses. -(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required: Provided that no male person under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person shall be required to attend at any place other than the place in which such male person or woman resides. (2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence. 161. Examination of witnesses by police.-(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. 163. No inducement to be offered.-(1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872). (2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will: Provided that nothing in this sub-section shall affect the provisions of sub-section (4) of section 164. 164. Recording of confessions and statements.-(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to search-warrants and the general provisions as to searches contained in section 100 shall, so far as may be, apply to a search made under this section. (5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate. * * * * 168. Report of investigation by subordinate police officer.- When any subordinate police officer has made any investigation under this Chapter, he shall report the result of such investigation to the officer in charge of the police station. 169. Release of accused when evidence deficient.-If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation was recorded by the officer in charge of the police station. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170. (h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C 2 [376D or section 376E of the Indian Penal Code (45 of 1860)]. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 116. Chapter XII of the Cr.P.C comprising Sections 154 to 176 relating to information to the police and their powers to investigate have no application to any inquiry or investigation under the NDPS Act, except to the extent expressly provided in the NDPS Act. Sections 161 and 162 of the Cr.P.C. are not attracted in the case of any inquiry or investigation by the officer designated under the NDPS Act. 117. The provisions of the Cr.P.C. only apply to all warrants issued and searches and seizures made under the NDPS Act, in so far as they are not inconsistent with the provisions of the NDPS Act, as provided in Section 51 of the NDPS Act and to the search of a person, without complying with the requirement to take the person to be searched, to the nearest Gazetted Officer or Magistrate, as provided in Section 50(5) of the NDPS Act. Of course, the principles of Section 163 of the Cr.P.C. are implicit in the provisions of the NDPS Act relating to inquiry and investigation though the said Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not necessary to send a copy of the information as recorded, with the grounds of belief of the necessity to take action, to a superior officer. (iv) The power to conduct personal search under the NDPS Act is circumscribed by Section 50. If the person to be searched, so requires, he has to be taken to the nearest Magistrate. As observed above, Section 50(5) specifically requires searches of person to be made under Section 100 of the Cr.P.C. only in the circumstances specified in the said provisions. (v) Section 53A of the NDPS Act, which expressly provides that a statement made and signed by a person before any officer empowered under Section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving in any prosecution under the NDPS Act, the truth of the facts which it contains, in the circumstances stated in the said Section, is patently contrary to and/or inconsistent with Sections 161/162 of the Cr.P.C. Under Section 162, a statement made to a police officer, if taken down in writing, is not to be signed by the person making it, and not used for any purpose in any inquiry or tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offence a complaint may not be made. Similarly a complaint may not be made, if upon inquiry/investigation, the information of an offence received by the appropriate officer is found false or frivolous. 124. Section 36A(1)(d) enables the police to file a report, before the Special Court, of facts constituting an offence under the NDPS Act, which, as per the definition of police report in Section 2(d) of the Cr.P.C., means a report forwarded under Section 173(2) of the Cr.P.C. Such a police report is deemed to be a complaint. Such police report can be filed after an investigation under Chapter XII of the Cr.P.C. There is no provision in the NDPS Act, which makes it incumbent upon the concerned officers who make any inquiry/investigation under the NDPS Act, to prepare or file any report. 125. If the police investigate any offence under the NDPS Act and submit a report before the Special Court, all the relevant provisions of the Cr.P.C. would have to be complied with, including in particular Sections 161, 162, 163, 164 and 173. A statement before the police can neither be signed nor relied upon for any purpose in a Court of law, except for the purpose specified in the said sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificates to police-officers.-Every police-officer appointed to the police force other than an officer mentioned in section 4 shall receive on his appointment a certificate in the form annexed to this Act under the seal of the Inspector-General or such other officer as the Inspector-General shall appoint by virtue of which the person holding such certificate shall be vested with the powers, functions and privileges of a police officer. xxx xxx xxx 20. Authority to be exercised by police officers.-Police-officers, enrolled under this Act shall not exercise any authority, except the authority provided for a police officer under this Act and any Act which shall hereafter be passed for regulating criminal procedure. xxx xxx xxx 23. Duties of police officers.- It shall be the duty of every police-officer promptly to obey and execute all filers and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances, to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Cr.P.C. in any specific chapter or any set of provisions grouped together. The duties and powers of an Officer in Charge of a Police Station are implicit in interspersed provisions of the Cr.P.C., many of which relate to the duties and powers of all police officers in general. It is however, axiomatic, that the Officer in Charge of a Police Station is, as a police officer, entitled to exercise all the powers of a police officer, whether under any of the Police Acts, the Cr.P.C or any other law, apart from the additional powers for discharge of duties and responsibilities as Officer in Charge of a Police Station. 135. Under Section 37 of the Cr.P.C. every person is bound to assist a police officer reasonably demanding his aid (i) in taking or preventing the escape of any other person, the police is authorized to arrest (ii) to prevent the breach of peace or (iii) in the prevention of any injury attempted to be committed to any railway, public property etc. 136. Section 41 of the Cr.P.C. confers on police officers, wide powers of arrest without an order of a Magistrate or warrant. The power extends to the arrest of any person, if amongst other reasons, the police officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he police to take action to prevent the commission of a cognizable offence. Section 151 of the Cr.P.C. confers on police officers the power of arrest without warrant or orders of a Magistrate, to prevent the commission of a cognizable offence. These powers are capable of being misused. 139. The police officers have enormous powers. The powers of a police officer are far greater than those of an officer under the NDPS Act invested with the powers of an Officer in Charge of a Police Station for the limited purpose of investigation of an offence under the NDPS Act. The extensive powers of the police, of investigation of all kinds of offences, powers to maintain law and order, remove obstruction and even arrest without warrant on mere suspicion, give room to police officers to harass a person accused or even suspected of committing an offence in a myriad of ways. The police are, therefore, in a dominating position to be able to elicit statements by intimidation, by coercion, or by threats either direct or veiled. The powers of NDPS officers being restricted to prevention and detection of crimes under the NDPS Act and no other crime, they do not have the kind of scope that the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under this Act in certain circumstances specified in the said section. 146. The statements made in any inquiry or investigation may be recorded in writing and even signed by the person making it. In the absence of any provision similar to Section 162, in the NDPS Act, a statement made before an officer under the NDPS Act in the course of any inquiry, investigation or other proceedings, may be tendered in evidence and proved in a trial for prosecution of an offence under the NDPS Act in accordance with law. A statement confessional in nature is in the genre of extra judicial confessions. 147. Section 24 of the Indian Evidence Act, 1872 provides as follows:- 24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. The requirement of corroboration as rightly submitted by the learned counsel for the respondent-accused, is a matter of prudence and not an invariable rule of law. 150. In Gura Singh v. State of Rajasthan (2001) 2 SCC 205 this Court held:- 6. It is settled position of law that extrajudicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extrajudicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR 1954 SC 322 : 1954 SCR 1098 : 1954 Cri LJ 910] this Court again in Maghar Singh v. State of Punjab [(1975) 4 SCC 234 : 1975 SCC (Cri) 479 : AIR 1975 SC 1320] held that the evidence in the form of extrajudicial confession made by the accused to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... romise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration. 151. It is one thing to say that a piece of evidence is inadmissible and another thing to assess two or more pieces of evidence on their probative value. A confession before a Judicial Magistrate under Section 164 of the Cr.PC may have higher probative value than other confessions. However, on that parameter alone other confessions for example, extra judicial confession cannot be rendered inadmissible in law. 152. It is true that some statutes such as Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), Prevention of Terrorism Act, 2002 (POTA) and Maharashtra Control of Organised Crime Act, 1999 (MCOCA) expressly empower the authorized officers to record confession. Investigation under those statutes is however carried out by police officer, as pointed out by the learned Addl. Solicitor General Mr. Aman Lekhi. 153. Whether the officer concerned is duly empowered and/or authorised to make an enquiry/investigation, whether any statement or document has improperly been procured, etc. are factors which would have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view and held that Section 25 of the Evidence Act applies to a police officer alone and not any other person invested with powers of a police officer for a limited purpose. Confession to an Excise Inspector with power to search and investigate was held to be inadmissible in evidence. 158. In the State of Punjab v. Barkat Ram AIR 1962 SC 276, the majority of the judges on the Bench held (Subba Rao, J., dissenting) that a Customs Officer under the Land Customs Act 19 of 1924 or under the Sea Customs Act 8 of 1878 is not a police-officer for the purpose of Section 25 of the Indian Evidence Act, 1872, and that conviction of the offender on the basis of his statements to the Customs Officer for offences under Section 167(8) of Sea Customs Act, 1878, and Section 23(1) of the Foreign Exchange Regulation Act, 1947, is not illegal. Raghubar Dayal, J., who delivered the majority judgment of this Court observed: ... that the powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order. The powers of customs officers are really not for such purpose. Their powers are for the purpose of checking the smugglin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as deemed to be an officer in charge of a Police Station, established a direct or substantial relationship with the prohibition enacted by Section 25 of the Evidence Act. This Court held that the object of enacting Section 25 of the Evidence Act was to eliminate from consideration confession to an officer, who by virtue of his position could extract by force, torture or inducement, a confession. If the power of investigation established a direct relationship with prohibition under Section 25 of the Evidence Act, the mere fact that the officer might possess some other powers under some other law, would not make him any less a police officer, for the purpose of Section 25 of the Evidence Act. 161. In Raja Ram Jaiswal (supra) this Court found it difficult to draw a rational distinction between a confession recorded by a police officer strictly so called, and the evidence recorded by an Excise Officer, acting under Section 78(3) of the Bihar and Orissa Excise Act, 1915, who was deemed to be a police officer. Section 78(3) provided that an Excise Officer empowered under Section 77(2) of the Bihar and Orissa Excise Act, 1915 shall for the purpose of Section 156 of the Cr.P.C., be dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght be analogous to those of a police officer under the Cr.P.C., they were not identical to those of a police officer. The Customs Officer is not entitled to submit a report to a Magistrate under Section 190 of the Cr.P.C. Section 187(a) of the Sea Customs Act specially provides that cognizance of an offence under the Sea Customs Act can be taken upon a complaint in writing made by the Customs Officer or other officer of the Customs of a specified rank. .. 165. In Badku Joti Savant v. State of Mysore AIR 1966 SC 1746 the question of whether a Central Excise Officer under the Central Excise and Salt Act 1944 was a police officer within the meaning of Section 25 of the Evidence Act, fell for consideration before a five-Judge Constitution Bench, in the context of Section 21 of the Central Excise and Salt Act, 1944 (now known as the Central Excise Act, 1944), set out hereinbelow for convenience: 21. (1) When any person is forwarded under Section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. (2) For this purpose the Central Excise Officer may exercise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 21(2) of the Act does not say that the Central Excise Officer shall be deemed to be an officer-in-charge of a police station and the area under his charge shall be deemed to be a police station. All that Section 21 does is to give him certain powers to aid him in his enquiry. In these circumstances we are of opinion that even though the Central Excise Officer may have when making enquiries for purposes of the Act powers which an officer incharge of a police station has when investigating a cognizable offence, he does not thereby become a police officer even if we give the broader meaning to those words in Section 25 of the Evidence Act. 167. In Romesh Chandra Mehta v. State of West Bengal AIR 1970 SC 940 five judge Constitution Bench of this Court considered the question of whether a Customs Officer under the Sea Customs Act 1878, was a police officer within the meaning of Section 25 of the Evidence Act and whether confessional statements made to the Customs Officer were inadmissible in evidence. The Constitution Bench held: 5. .. The broad ground for declaring confessions made to a police officer inadmissible is to avoid the danger of admitting false confessional st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admissible in evidence on the ground that Customs Officers were Police Officers within the meaning of Section 25 of the Evidence Act. The Constitution Bench held: ...(1) The police is the instrument for the prevention and detection of crime which can be said to be the main object of having the police. The powers of customs officers are really not for such purpose and are meant for checking the smuggling of goods and due realization of customs duties and for determining the action to be taken in the interest of the revenue country by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines. (2) The customs staff has merely to make a report in relation to offences which are to be dealt with by a Magistrate. The customs officer, therefore, is not primarily concerned with the detection and punishment of crime but he is merely interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties. (3) The powers of search etc. conferred on the customs officers are of a limited character and have a limited object of safeguarding the revenues of the State and the statute itself refers to police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer of the Force is of the opinion that there is sufficient evidence or reasonable ground of suspicion against the accused, he must file a complaint under Section 190(1)(a) of the Code in order that the Magistrate concerned may take cognizance of the offence. Thus an officer conducting an inquiry under Section 8(1) of the Act does not possess all the attributes of an officer-in-charge of a police station investigating a case under Chapter XIV of the Code. He possesses but a part of those attributes limited to the purpose of holding the inquiry . 171. In Balkishan A Devidayal vs State of Maharashtra (1980) 4 SCC 600 , this Court considered the question of whether an Inspector of the Railway Protection Force enquiring into an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966, could be said to be a police officer under Section 25, Evidence Act. This Court, after a review of the case law, concluded as under: In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer-in-charge of a police station making an inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out earlier there is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under Section 53 of the Act, all the powers of Chapter XII, including the power to submit a report under Section 173 of the Code. But the issue is placed beyond the pale of doubt by sub-section (1) of Section 36-A of the Act which begins with a non-obstante clause - notwithstanding anything contained in the Code - and proceeds to say in clause (d) as under: 36-A. (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 authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. This clause makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI, the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned government. Needless to say that such a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forces or any such class of officers with the powers of an Officer in Charge of a Police Station for the investigation of offences under the NDPS Act. 177. Similarly Section 53(2) empowers the State Government to invest any officer of the Department of Drugs Control, Revenue or Excise or any other Department, or any class of officers with the powers of an Officer in Charge of a Police Station for the investigation of offences under the NDPS Act. 178. The proposition of law which emerges from the three Constitution Bench judgments referred to above is that, for determining whether an officer of any other department of the Government, such as a Central Excise Officer or Customs Officer, conducting an inquiry and/or investigation of an offence, could be deemed to be a police officer, the test is, whether such officer had been invested with all the powers of a police officer qua investigation, including the power to submit a police report under Section 173 of the Cr.P.C. 179. In Badku Jyoti Savant (supra), the Constitution Bench of this Court clearly held in effect and substance that conferment of the powers of an Officer in Charge of a Police Station, on a government officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This Court also held that confessional statement made by the Appellant while in custody of Intelligence Officer, Narcotics Intelligence Bureau was admissible in evidence in the absence of any complaint or threat or pressure made by the accused when produced before the Magistrate. 183. The NDPS Act may loosely have been described as a penal statute in some judgments of this Court in the sense that the NDPS Act contains stringent penal provisions including punishment of imprisonment of twenty years and even death sentence in certain exceptional cases of offence repeated after earlier conviction. 184. To quote V. Sudhish Pai form, his book Constitutional Supremacy A Revisit Judgments and observations in judgments are not to be read as Euclid s theorems or as provisions of statute. Judicial utterances/pronouncements are in the setting of the facts of a particular case. To interpret words and provisions of a statute it may become necessary for judges to embark upon lengthy discussions, but such discussion is meant to explain not define. Judges interpret statutes, their words are not to be interpreted as statutes. Thus, precedents are not to be read as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition to bribery. The existing law i.e. the Penal Code was found insufficient to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country. The provisions broadly include the existing offences under Sections 161 and 165 of the Penal Code, 1860 committed by public servants and enact a new rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the pre-existing offences and enacts a rebuttable presumption contrary to the well- known principles of criminal jurisprudence. It also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the Government or other appropriate officer a pre-condition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object i.e. to prevent corruption among public servants and to prevent harassment of the honest among them. 10. A decision of the Judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted by them is clear and explicit and the statute never intended to exonerate them from being prosecuted. It is sheer violence to common sense that the legislature intended to punish the corporate bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes. 24. The distinction between a strict construction and a more free one has disappeared in modern times and now mostly the question is what is true construction of the statute? A passage in Craies on Statute Law, 7th Edn. reads to the following effect: The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. All modern Acts are framed with regard to equitable as well as legal principles. A hundred years ago , said the court in Lyons case [R. v. Lyons, 1858 Bell CC 38 : 169 ER 1158] , statutes were required to be perfectly precise and resort was not had to a reasonable construction of the Act, and thereby criminals were often allowed to escape. This is not the present mode of construing Acts of Parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be relevant to investigation under the NDPS Act. 194. The Central Excise Act has stringent penal provisions for effective implementation of the said Act. Offences punishable under clauses (b) and (bbbb) of sub-section (1) of Section 9 for serious duty evasion and contravention of any of the provisions of the Central Excise Act or Rules made thereunder in relation to credit of any duty allowed to be utilised towards payment of excise duty on final products, are also cognizable and non bailable. Many of the offences under the Central Excise Act, 1944 are punishable with imprisonment, which may extend to seven years. 195. Some of the provisions of the Central Excise Act 1944, are set out hereinbelow: 9. Offences and Penalties.-(1) Whoever commits any of the following offences, namely:- (a) contravenes any of the provisions of Section 8 or of a rule made under clause (iii) or clause (xxvii) of sub-section (2) of Section 37; (b) evades the payment of any duty payable under this Act; (bb) removes any excisable goods in contravention of any of the provisions of this Act or any rules made thereunder or in any way concerns himself with such removal; (bbb) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, or reason to believe, a fact. (2) For the purposes of this section, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. 9-D. Relevancy of statements under certain circumstances.- (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er thing in any inquiry which such officer is making for any of the purposes of this Act. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required: Provided that the exemptions under Sections 132 and 133 of the Code of Civil Procedure, 1908 (5 of 1908) shall be applicable to requisitions of attendance under this section. (3) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code, 1860 (45 of 1860). Sections 36(A) and 36(B)(1) of the Central Excise Act provide as follows: 36-A. Presumption as to documents in certain cases.-Where any document is produced b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prohibit the import or export of goods of any specified description for various reasons, including prevention of shortage, the protection of human, animal or plant life or health, the protection of trade marks, patent, copyright, prevention of deceptive practices, implementation of any treaty or convention etc. The examples are illustrative and not exhaustive. 197. The said Act contains stringent penal provisions to enforce compliance with the said Act. Offences under sub-Section 4 of Section 9 of the Customs Act, for example, any offence relating to prohibited goods or evasion or attempted evasion of duty exceeding a certain value, or fraudulent availing of or attempt to avail drawback or exemption etc. are cognizable offences. 198. Some of the offences under the Customs Act are punishable with imprisonment which may extend to seven years apart from fine. Under Section 135(A) of the Customs Act, even a person who makes preparation to export any goods in contravention of the provisions of the Customs Act, is punishable with imprisonment for a term which may extend to three years, or with fine or with both. The Customs Officers are conferred with powers of search, seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the magistrate. (3) The gazetted officer of customs or the magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) Before making a search under the provisions of Section 100 or Section 101, the officer of customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do; and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses. (5) No female shall be searched by anyone excepting a female. 103. Power to screen or X-ray bodies of suspected persons for detecting secreted goods.-(1) Where the proper officer has reason to believe that any person referred to in sub-section (2) of Section 100 has any goods liable to confiscation secreted inside his body, he may detain such person and shall,- (a) with the prior approval of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as soon as practicable, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or vessel; (b) examine and search any goods in the aircraft, vehicle or vessel or on the animal; (c) break open the lock of any door or package for exercising the powers conferred by clauses (a) and (b), if the keys are withheld. 107. Power to examine persons.-Any officer of customs empowered in this behalf by general or special order of the Commissioner of Customs may, during the course of any enquiry in connection with the smuggling of any goods,- (a) require any person to produce or deliver any document or thing relevant to the enquiry; (b) examine any person acquainted with the facts and circumstances of the case. 108. Power to summon persons to give evidence and produce documents.-(1) Any gazetted officer of customs * * *, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act.] (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act and belief in, or reason to believe, a fact. (2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. 138-B. Relevancy of statements under certain circumstances.- (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether- (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,- (a) identifying the document containing the statement and descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the court shall- (a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or be in the handwriting of, any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under clause (i) also presume, unless the contrary is proved, the truth of the contents of such document.] Explanation.-For the purposes of this section, document includes inventories, photographs and lists certified by a Magistrate under sub- section (1-C) of Section 110. 200. Sections 100 and 101 empower the proper officer of customs to conduct personal search. Section 103 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d export of currency, for the conservation of foreign exchange resources of the country and proper utilization thereof in the interest of the economic development of the country. The FERA was repealed by the Foreign Exchange Management Act (FEMA). Some of the relevant provisions of the FERA are set out hereinbelow:- 34 Power to search suspected persons and to seize documents.- (1) If any officer of Enforcement authorised in this behalf by the Central Government, by general or special order, has reason to believe that any person has secreted about his person or in anything under his possession, ownership or control any documents which will be useful for, or relevant to, any investigation or proceeding under this Act, he may search that person or such thing and seize such documents. (2) When any officer of Enforcement is about to search any person under the provisions of this section, the officer of Enforcement shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of Enforcement superior in rank to him or a magistrate. (3) If such requisition is made, the officer of Enforcement may detain the person making it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ize any such document as is referred to above; (d) break open the lock of any door or package for exercising the powers conferred by clauses (a), (b) and (c), if the keys are withheld. 37. Power to search premises.- (1) If any officer of Enforcement, not below the rank of an Assistant Director of Enforcement, has reason to believe that any documents which, in hi s opinion, will be useful for, or relevant to any investigation or proceeding under this Act, are secreted in any place, he may authorise any officer of Enforcement to search for and seize or may himself search for and seize such documents. (2) The provisions of the1 [Code of Criminal Procedure, 1973 ( 2 of 1974 )] relating to searches, shall, so far as may be, apply to searches under the section subject to the modification that sub-section ( 5 ) of section 165 of the said Code shall have effect as if for the word Magistrate , wherever it occurs, the words Director of Enforcement or other officer exercising hi s powers were substituted. 38. Power to seize documents, etc.- Without prejudice to the provisions of section 34 or section 36 or section 37, if any officer of Enforcement authorised in this beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 57 and 58], or of any rule, direction or order made thereunder he shall, upon conviction by a court, be punishable,- (i) in the case of an offence the amount or value involved in which exceeds one lakh of rupees, with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine: Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months; (ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both. (2) If any person convicted of an offence under this Act [not being an offence under section 13 or clause (a) or sub-section (1) of1 [section 18 or section 18A) or clause (a) of sub-section (1) of section 19 or sub- section (2) of section 44 or section 57 or section 58] is again convicted of an offence under this Act [not being an offence under section 13 or clause (a) of sub-section (1) of [section 18 or section 18A] or clause (a) of subsection (1) of section 19 or sub-section (2) of section 44 or section 57 or section 58], he shall be punishable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso to section 188 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to any offence punishable under this section. xxx xxx xxx 59. Presumption of culpable mental state.- (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation. -In this section, culpable mental state includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. (3) The provisions of this section shall, so far as may be, apply in relation to any proceeding before an adjudicating officer as they apply in relation to any prosecution for an offence under this Act. xxx xxx xxx 62. Certain offences to be non-cognizable.- Subject to the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of this Act, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. Explanation.-For the purposes of this section, the words abet and conspire shall have the same meanings as assigned to them respectively in sections 107 and 120A of the Indian Penal Code (45 of 1860.) 5. Offences under the Act not to be cognizable.-Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence under this Act shall not be cognizable. 6. Power to arrest without warrant.-Any superior officer or member of the Force may, without an order from a Magistrate and without a warrant, arrest any person who has been concerned in an offence punishable under this Act or against whom a reasonable suspicion exists of his having been so concerned. xxx xxx xxx 8. Inquiry how to be made.-(1) When an officer of the Force receives information about the commission of an offence punishable under this Act, or when any person is arrested] by an officer of the Force for an offence punishable under this Act or is forwarded to him under section 7, he shall proceed to inquire into the charge against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession) Act are not cognizable, they entail punishment of imprisonment for a term which may extend to five years. Any member of the force may exercise power of arrest without an order from a magistrate and without warrant even on mere suspicion, if reasonable. 208. An officer of the force on receipt of information about commission of the offences punishable under the Act may inquire into the charges against the person and for this purpose the officer might exercise the same powers and shall be subject to the same provisions as the Officer in Charge of a Police Station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case. Proceedings before the officer are in the nature of judicial proceedings. 209. It is true, as argued by Mr. Jain, that an enquiry under the Central Excise Act, 1944 or the Customs Act 1962 is a judicial proceeding within the meaning of Sections 193 and 198 of the Indian Penal Code, by virtue of Section 14(4) of the Central Excise Act and Section 108(4) of the Customs Act, which are identical provisions and read Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Central Excise Act by any Central Excise Officer, empowered by the Central Government, or under the Customs Act, by any officer of customs empowered by general or special order of the Principal Commissioner/Commissioner of Customs or under the FERA by an Enforcement Officer or under the Railway Property (Unlawful Possession) Act 1961 by an officer of the Railway Protection Force is not the same as a proceeding in a Court of Law or Tribunal. Such an inquiry is preliminary to trial by a Court of competent jurisdiction. It is akin to an enquiry conducted by a public servant under any other law with penal provisions including an enquiry under the NDPS Act. 214. Investigation under these Acts have been given the status of judicial proceedings within the meaning of Sections 193 and 228 of the IPC, unlike investigation of an offence under the NDPS Act. The only difference is that the person making a statement in an investigation under any of these Acts, is burdened with the consequences of giving false evidence in any other judicial proceedings including proceedings in a Court of Law, punishable with imprisonment which may extend to three years and also fine [Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer, who is not police officer, but deemed to be a police officer for all purposes, with all the powers of a police officer including the power akin to Section 173(2) of the Cr.P.C, can be tendered and proved in evidence, only because the enquiry is a judicial proceeding within the meaning of Section 193 or 228 of the IPC, in the sense that a person intentionally giving false evidence in such proceeding, or intentionally insulting or causing interruption to a person holding such an enquiry is punishable with imprisonment. 218. Significantly the Constitution Benches in Romesh Chandra Mehta (supra) and Illias (supra) have made a distinction between police officers and other officers exercising the powers of a police officer for investigation of an offence under a special act by comparing the restricted police powers of the latter with the far wider powers of the former including those under the Police Acts. 219. The fact that the provisions of Chapter V of the NDPS Act, which confer powers of entry, search, seizure, arrest, investigation and inquiry on certain officers, do not expressly use the phrase collect evidence is not really material to the issue of whether such o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t warrant, should not make any difference to the admissibility or the probative value of the evidence adduced by the prosecution during the trial of the offence. 225. Significantly, as observed above, some of the offences under the Central Excise Act and the Customs Act are also cognizable. It may also be pertinent to point out that while all offences under the NDPS Act including those punishable with imprisonment up to one year are cognizable, offences in the Railway Property (Unlawful possession) Act 1966, punishable with imprisonment of seven years, have been made non cognizable. 226. There can be no doubt that the mandatory provisions of the NDPS Act to ensure fair trial of the accused must be enforced. However, over-emphasis on the principles of natural justice in drug- trafficking cases can be a major hindrance to the apprehension of offenders. In offences under the NDPS Act, substantial compliance should be treated as sufficient for the procedural requirements, because such offences adversely affect the entire society. The lives of thousands of persons get ruined. 227. There can be no doubt that the fundamental rights under Article 20(3) and 21 are important fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w must be fair, just and reasonable. The law which provides for the curtailment of the right must also be subject to constitutional safeguards. Chelameswar, J. 377.It goes without saying that no legal right can be absolute. Every right has limitations. This aspect of the matter is conceded at the Bar. Therefore, even a fundamental right to privacy has limitations. The limitations are to be identified on case-to-case basis depending upon the nature of the privacy interest claimed. There are different standards of review to test infractions of fundamental rights. While the concept of reasonableness overarches Part III, it operates differently across Articles (even if only slightly differently across some of them). Having emphatically interpreted the Constitution's liberty guarantee to contain a fundamental right to privacy, it is necessary for me to outline the manner in which such a right to privacy can be limited. I only do this to indicate the direction of the debate as the nature of limitation is not at issue here. xxx xxx xxx 380.The just, fair and reasonable standard of review under Article 21 needs no elaboration. It has also most commonly been used i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and unreasonable; and under Article 21 read with Article 19(1)(a) only if it relates to the subjects mentioned in Article 19(2) and the tests laid down by this Court for such legislation or subordinate legislation to pass muster under the said article. Each of the tests evolved by this Court, qua legislation or executive action, under Article 21 read with Article 14; or Article 21 read with Article 19(1)(a) in the aforesaid examples must be met in order that State action pass muster. In the ultimate analysis, the balancing act that is to be carried out between individual, societal and State interests must be left to the training and expertise of the judicial mind. 536. This reference is answered by stating that the inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India. M.P. Sharma [M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 : 1954 Cri LJ 865 : 1954 SCR 1077] and the majority in Kharak Singh [Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] , to the extent that they indicate to the contrary, stand overruled. The later judgments o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from voluntarily offering himself to be examined as a witness. The constitutional protection against compulsion to be a witness is available only to persons accused of an offence , and not persons other than the accused. It is a protection against compulsion to be a witness and it is a protection against compulsion resulting in giving evidence against himself. 236. As held in Balkishan A Devidayal vs State of Maharashtra (1980) 4 SCC 600, a formal accusation may be made in an FIR or a formal complaint or any other formal document or notice served which ordinarily results in his prosecution in court. The protection would not apply before the person is made as an accused in a formal complaint. 237. In Nandini Satpathy v. P.L.Dani and Anr. (1978) 2 SCC 424 cited by Mr. Jain, a three-Judge Bench of this Court held that the protection of Article 20(3) goes back to the stage of investigation and that accordingly he is entitled to refuse to answer incriminating questions. An accused has the right of silence. As held in Nandini Satpathy (supra) any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under compulsion is no evidence in the eye of law. 242. A confessional statement, if not obtained by compulsion, as judicially explained, would be hit by Sections 25 and 26 only if such statement is made to a police officer (Section 25 of the Evidence Act) or while in the custody of a police officer and not in the presence of a Magistrate (Section 26 of the Evidence Act). It is now settled by the Constitution Bench in Badku Joti Sawant (supra) and Romesh Chandra Mehta (supra) and a plethora of judgments of this Court that Section 25 would only apply to a police officer or an officer who exercises all the powers of a police officer including the power of filing a police report under Section 173 of the Cr.PC. An officer under the NDPS Act does not have the power to file a police report under Section 173 of the Cr.P.C. 243. A confessional statement does not automatically result in the conviction of an accused offender. Such statements have to be tendered and proved in accordance with the law. The evidentiary value of the statement which is confessional in nature has to be weighed and assessed by the Court at the trial. 244. As stated by this Court in Vishnu Pratap Sugar W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in by Court as to do that would amount to the legislation and not construction. The Court cannot fill in casus omissus and language permitting Court should avoid creating casus omissus where there is none. In the interpretation of statute the Courts must always presume that legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. 251. The attention of this Bench has not been drawn to any ambiguous provision capable of two or more interpretations, one of which would be in consonance with the fundamental rights and the other violative of the fundamental rights. Counsel appearing in support of the appeals have in effect invited this Court to introduce further safeguards, not contemplated by the legislature in the NDPS Act through the process of interpretation. 252. The proposition of law in Directorate of Revenue and Another v. Mohammed Nisar Holia (2008) 2 SCC 370 cited by Mr. Jain is well settled. There is no doubt that the NDPS Act contains severe penal provisions. There can also be no dispute with the proposition that when harsh provisions, lead to a severe sentence, a balance has to be struc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the offence, the stricter is the degree of proof. All the safeguards provided in the NDPS Act must be scrupulously followed. 257. In Badku Jyoti Savant (supra), the Constitution Bench of this Court considered Section 21(2) of the Central Excise Act (then known as Central Excise and Salt Act) which provided for this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case . 258. The powers conferred on Central Excise Officer by Section 21(2) of the Central Excise Act (then known as Central Excise and Salt Act) are identical to those of an officer under the NDPS Act, invested with the powers of an Officer in Charge of a police station for the purpose of investigation of an offence under the NDPS Act. 259. Construing Section 21(2) in Badku Joti Savant (supra), the Constitution Bench held that Central Excise Officers do not have all the powers of a police officer qua investigation, which necessarily includes the power to file a report under Section 173 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence under a special Act like the NDPS Act is empowered to file a police report under Section 173 of the Cr.P.C cannot also be reopened by this Bench, in view of five- Judge Constitution Bench judgments referred to above. 266. The law which emerges from the Constitution Bench judgments of the Supreme Court in Badku Joti Savant (supra), Romesh Chandra Mehta (surpa() and Iilias (supra) is that, an officer can be deemed to be a police officer within the meaning of Section 25 of the Evidence Act: (i) if the officer has all the powers of a police officer qua investigation, which includes the power to file a police report under Section 173 of the Cr.P.C., (ii) the power to file a police report under Section 173 of Cr.P.C is an essential ingredient of the power of a police officer and (iii) the power to file a police report under Section 173 of Cr.P.C has to be conferred by statute. 267. A statute may expressly make Section 173 of the Cr.P.C applicable to inquiries and investigations under that statute. However, in the case of a statute like the NDPS Act, where the provisions of the Cr.P.C do not apply to any inquiry/investigation, except as provided therein, it cannot be ..... 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