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TMI Blog2020 (11) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Suhashini Sen, Adv Ms. Ranjana Narayan, Adv. Mr. Ritwiz Rishabh, Adv. Mr. Harish Pandey, Adv. Mr. B. V. Balaram Das, AOR Mr. B. Krishna Prasad, AOR Mr. Saurabh Mishra, AAG Mr. Arjun 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 ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under Section 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer also needs to be referred to the larger Bench, inasmuch as it is intermixed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further under the NDPS Act. Thus, "reason to believe", which is at a higher threshold than "reason to suspect" - which phrase has been used in section 49 of the NDPS Act - is a condition precedent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and render it otiose. He stressed the fact that all offences under the NDPS Act are cognizable offences, unlike under revenue statutes like the Customs Act, 1962 and Central Excise Act, 1944, and then argued that the "complaint" that is referred 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 investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udice was caused, the trial may be vitiated in terms of the judgment. 6. Shri Anand Grover, learned Senior Advocate, appearing for the Appellant in Criminal Appeal No. 90 of 2017, followed in the wake of the two Jains, père et fils. The learned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 25 of the Evidence Act only applies to confessions made against the maker, as against statements recorded under section 161 of the CrPC, which are completely barred from being received in evidence under section 162 of the CrPC, save and except 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence Act was met, and the Court was satisfied that the confession so recorded was both voluntary and truthful. In any case, he asserted that the safeguards that have been pointed out in D.K. Basu v. Union of India (1997) 1 SCC 416 at 435, 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PS Act. He also argued that investigation begins from the stage of collection of material under section 67, and for this relied strongly upon the recent Constitution Bench judgment in Mukesh Singh (supra). According to him, therefore, the 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (See Section 119 of the Evidence Act) or the like. "To be a witness" is nothing more than "to furnish evidence" and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word "witness", which must be understood in its natural sense i.e. as referring to a person who furnishes evidence. Indeed, every positive volitional act, which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectly decided insofar as it stated that the guarantee under Article 20(3) extended to testimony by a witness given in or out of courts, which included statements which incriminated the maker. However, 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 agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l or on personal knowledge of documents produced, is protected by Article 20(3), remained untouched. 19. It is also important to note that in Balkishan A. Devidayal (supra), 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, termi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue the expression to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve already explained that in determining the incriminatory character of an answer the accused is entitled to consider - and the Court while adjudging 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 Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15(1) of the Code corresponding to Section 342- A of the old Code and to give evidence on oath in disproof of the charges made against him 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 Evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officials empowered to record statements under those special Acts are not police officers as per the judicial pronouncements 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. The guarantee was, therefore, held to include not only 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 give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ordinarily evidence is classified into three broad categories, namely, oral testimony, documents and material evidence. The protective scope of Article 20(3) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the subject of experimentation in some western nations while the BEAP technique was developed several years later. Just as the interpretation of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he "right against self-incrimination". This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(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 requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were referred to; and M.P. Sharma (supra), where it was held that no such right was recognised in the Constitution of India, was overruled. Thus, in the judgment of Chandrachud, J., it was stated: "26.M.P. Sharma [1954 SCR 1077] was a case where a 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 just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such as Article 21 or under Article 19. xxx xxx xxx 316. The judgment in M.P. Sharma holds essentially that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t these observations is that there is no broad ratio in the said judgment that a fundamental right to privacy is not available in Part III of the Constitution. The observation is confined to Article 20(3). Further, it is clear that the actual finding in the aforesaid case had to do with the law which had developed in this Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained in the fundamental rights chapter or otherwise. As the majority judgment contradicts itself on this vital aspect, it would be correct to say that it cannot be given much value as a binding precedent. In any case, we are of the view that the majority judgment is good law when it speaks of Article 21 being designed to assure the dignity of the individual 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . At this juncture, it is important to set out sections 24 to 27 of the Evidence Act: "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 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" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imself against any charge of supinates or neglect by getting up a case against parties whose circumstances or characters are such as are likely to obtain credit for an accusation of the kind against them. This is not infrequently done by extorting or fabricating false confession, and when this step is once taken, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was accused of the offence when he made the confession." (at page 137) 33. Thus, 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. 34. 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offence punishable under the NDPS Act, authorising any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place." 37. The interplay between 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he field of narcotics control has evolved through various international treaties and protocols. The Government of India has been a party to these treaties and conventions which entail several obligations which are not covered or are only partly covered by the present Acts. (iv) During recent years new drugs of 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 rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears but which may extend to twenty years, and also be liable to a fine which shall not be less than one lakh, but which may extend to two lakhs - the court, for reasons to be recorded, is also given the power to impose a fine exceeding two lakhs. Under sections 28 and 29, punishments for attempts to 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as to documents in certain cases.- Where any document- (i) is produced or furnished by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law, or (ii) has been received from any place 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, notwithstand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank 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 resis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained in section 49 of the NDPS Act. Thus, "reason to believe" has been construed by this Court in A.S. Krishnan v. State of Kerala (2004) 11 SCC 576 as follows: "9. Under IPC, guilt in respect 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 oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with the safeguards provided under Section 50 of the NDPS Act. A two-Judge Bench speaking through K. Jayachandra Reddy, J. considered several provisions of the 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 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on merits of the case." (emphasis in original) xxx xxx xxx 57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; apart from the fact that in Karnail Singh [(2009) 8 SCC 539], the issue was regarding the scope and applicability of Section 42 of the NDPS Act in the matter of conducting search, seizure and arrest without warrant or authorisation, the said decision does not depart from the dictum laid down in 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh (supra). That the NDPS Act is predominantly a penal statute is no longer res integra. In Directorate of Revenue and Anr. v. Mohammed Nisar Holia (2008) 2 SCC 370, this Court held: "9. The NDPS Act is a penal statute. It invades the rights of an accused to a large extent. It raises a presumption of a culpable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement thereof, on the one hand, and protection of citizen from oppression and injustice on the other. 12. This Court in Balbir Singh [(1994) 3 SCC 299] referring to Miranda v. State of Arizona [384 US 436 (1966)] while interpreting the provisions of the Act held that not only the provisions 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-à-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the course of investigation of offences- In Lexico (a collaboration between Oxford University Press and Dictionary.com), it is stated that "the traditional distinction between the verbs enquire and inquire is that enquire is to be used for general senses of 'ask', while inquire is 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 "contemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riting, as is provided in section 42(1). Further, the information given must be for the purpose of "satisfying" himself that there has been a contravention of the provisions of this Act, which again goes back to the expression "reason to believe" in section 42. This being the case, it is a little difficult to accept Shri Lekhi's argument that "enquiry" in section 67 is the same as "investigation", which is referred to in section 53. Section 53 states: "53. Power to invest officers of certain departments with powers of an officer-in-charge of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quence of accepting Shri Lekhi's argument flies in the face of the fundamental rights contained in Articles 20(3) and 21, as well as the scheme of the NDPS Act, together with the safeguards that have been set out by us hereinabove. First and foremost, even according to Shri Lekhi, a police officer, properly so-called, may be authorised to call for information etc. under section 67, as he is an officer referred to in section 42(1). Yet, while "investigating" an offence under the NDPS Act i.e. subsequent to the collection of information 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. Ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided by Section 145 of the Evidence Act. We have already noticed from the history of the section that the enacting clause was mainly intended to protect the interests of accused. At the stage of investigation, statements of witnesses are taken in a haphazard manner. The police officer in the course of his investigation finds himself more often in the midst of an excited crowd and babel of voices raised all round. In such an atmosphere, unlike that in a court of law, he is expected to hear the statements of witnesses 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was admitted by Shri Lekhi in the course of his arguments. Even if any such anomaly were to arise on a strained construction of section 67 as contended for by Shri Lekhi, the alternative construction suggested by the Appellants, being in consonance with fundamental rights, alone would prevail, as section 67 would then have to be "read down" so as to conform to fundamental rights. 69. Take, for example, an investigation conducted by the regular police force of a State qua a person trafficking in ganja. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent were correct, that a confessional statement made under section 67 is sufficient as substantive evidence to convict an accused under the NDPS Act, section 53A would be rendered otiose. Sections 53 and 53A of the NDPS Act, when read together, would make it clear that section 53A is in the nature of an exception to sections 161, 162 and 172 of the CrPC. This is for the reason that section 53(1), when it invests certain officers or classes of officers with the power of an officer in charge 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 k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officer in charge of the nearest police station, or the officer empowered under section 53. 90. That thereafter the investigation is to be conducted by the officer in charge of a police station." (emphasis supplied) 75. The Court then went on to state: "93. Section 53 does not speak that all those officers to be authorised to exercise the powers of an officer in charge of a police station for the investigation of the offences under the NDPS Act shall be other than 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer". For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 822(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 hereby empowers 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of a police station. 84. Take a hypothetical case where an officer is designated under section 42, but there is no designation of any officer under section 53 to conduct investigation. In such a case, the section 42 officer would not conduct any investigation at all - he would only gather facts which give him "reason to believe" that an offence has been committed, in pursuance of which he may use the powers given to him under section 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for the prevention and detection of crime, it is enacted as follows'. This indicates that the police is the instrument for the prevention and detection of crime which can be said to be the main object and purpose of having the police. Sections 23 and 25 lay down the duties of the police officers and Section 20 deals with the authority they can exercise. They can exercise such authority as is provided for a 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He is more concerned with the goods and customs duty, than with the offender." (page 345) (emphasis supplied) 89. In an important passage, the Court then concluded that since the expression "police officer" is not defined, it cannot be construed in a narrow way, but must be construed in a "wide and popular sense", as follows: "There seems to be no dispute that a person who is a member 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 restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld possession of the thing confiscated and every officer of police, on request of such officer, shall assist him in taking and holding such possession. This leaves no room for doubt that a Customs Officer is not an officer of the Police. It is well-settled that the Customs Officer, when they act under the Sea Customs Act to prevent the smuggling of goods by imposing confiscation and penalties, act judicially: Leo Roy Frey v. Superintendent District Jail, Amritsar [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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icular Act exercise the powers and discharge the duties of prevention and detection of crime? If he does, he will be a police officer." (at page 358) 95. After referring to various High Court judgments which contained the "broad view" - i.e. Bombay, Calcutta and Madras, which would include all three classes of police officers referred to, as against the "narrow view" of the Patna High Court, where only a person who is designated as a police officer 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 cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that case, and it is precisely this question that arose in this case - see page 762. The Court then held: "It is precisely this question which falls for consideration in the present appeal. For, under Section 78(3) of the Bihar and Orissa Excise Act, 1915 (2 of 1915) an Excise Officer empowered under Section 77, sub-section (2) of that Act shall, for the purpose of Section 156 of the Code of Criminal Procedure be deemed to be an officer 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owers of a police officer and the act itself deems him to be a police officer, even though he does not belong to the police force constituted under the Police Act. It has been held by this court that the expression "police officer" in Section 25 of the Evidence Act is not confined to persons who are members of the regularly constituted police force. The position of an Excise Officer empowered under Section 77(2) of the Bihar and Orissa 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 Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of police station establish a direct or substantial relationship with the prohibition enacted by Section 25, that is, the recording of a confession. In our words, the test would be whether the powers are such as would to facilitate the obtaining by him of a confession from a suspect 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 25 of the Evidence Act. The view was based on the following considerations: (1) The powers which a police officer enjoys are powers for the effective prevention and detection of crime in order to maintain law and order while a customs officer is not primarily concerned with the detection and punishment of crime committed by a person but is mainly interested in the detection and 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated in the aforementioned two judgments, is correct. It proceeded on the footing that the broad view may be accepted to test the statute in question -see pages 701, 702. The Court referred to the main purpose of the Central Excise Act as follows: "The main purpose of the Act is to levy and collect excise duties and Central Excise Officers have been appointed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate. It does not however appear that a Central Excise Officer under the Act has power to submit a charge-sheet under Section 173 of the Code of Criminal Procedure. Under Section 190 of the Code of Criminal 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 charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Customs Officer is authorised to collect customs duty to prevent smuggling and for that purpose he is invested with the power to search any person on reasonable suspicion (Section 169); to screen or X-ray the body of a person for detecting secreted goods (Section 170-A); to arrest a person against whom a reasonable 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 stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; court P. Shankar Lal v. Asstt. Collector of Customs, Madras [Cr. As 52 & 104/65 decided on 12-12-1967] it has been reaffirmed that there is no conflict between the cases of Raja Ram Jaiswal and Barkat Ram, the former being distinguishable from the latter." (at page 616) 114. The Court then referred to the 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 releasin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate; (b) if it appears to the officer 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 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r officer and member of the Force "shall for all purposes be regarded as Railway servants within the meaning of the Indian Railways Act, 1890, other than Chapter VI-A thereof, and shall be entitled to exercise the powers conferred on Railway servants by or under that Act". Section 11 which 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction, in the nearest police station." 120. The Court noticed that offences under this Act were non-cognizable - see paragraph 27 - and concluded: "30. Section 7 of the Act provides that the procedure for investigation of a cognizable offence has to be followed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke a police officer who has a general power under the Code to investigate all cognizable cases the power of an officer of the RPF to make an inquiry is restricted to offences under the 1966 Act. xxx xxx xxx 38...An officer of the RPF making 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 offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to be a "police officer" within the meaning of Section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral judgments of this Court which refer to Barkat Ram (supra), and which continued to adopt the broad, and not narrow, test laid down in the said judgment. Also, Raja Ram Jaiswal (supra) has been referred to by several 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation or the officer empowered to investigate under Section 53 of the Act. Special provision is made in Section 52-A in regard to the disposal of seized narcotic drugs and psychotropic substances. Then comes Section 53 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 sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limited powers vested in officers under the aforementioned revenue and railway statutes for ancillary purposes, which have already been discussed by this Court in Barkat Ram (supra), with reference to the Land Customs Act; Badku Joti Savant (supra), with reference 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 hereinab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation relates to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB 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 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 detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond 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), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is to invest an officer with the power of an officer in charge of a police station under sub-section (1) of section 53, it can only do so after consultation with the State Government, which requirement is conspicuous by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resulting in a violation of Article 14 of the Constitution of India - in that there is unequal treatment between identically situated persons accused of an offence under the NDPS Act solely due to the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At this juncture, it is important to state that we do not accept the submission of Shri S.K. Jain that the "complaint" referred to in section 36A(1)(d) refers only to section 59 of the NDPS Act. A complaint can be made by a designated officer qua offences which 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 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and section 15 of the TADA - see paragraph 41. These provisions are as follows: Customs Act, 1962 "107. Power to examine persons.-Any officer of customs empowered in this behalf by general or special order of the Principal Commissioner of Customs 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 authorise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Civil Surgeon and thereafter, he shall be sent to judicial custody." TADA "15. Certain confessions made to police officers to be taken into consideration.-(1) Notwithstanding anything in the Code or 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the confession is required to be sent under Rule 15(5) along with the original statement of confession, written or recorded on mechanical device without unreasonable delay; (3) The Chief 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The mandate of sub-sections (2) and (3) is not something new. Almost similar prescriptions were there under TADA also. In fact, the fulfilment of 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. Situation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the confession recorded under Section 32(1) and may even inflict a fatal blow on such confession. We have another set of procedural safeguards 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law. 157.These Appeals and Special Leave Petitions are now sent back to Division Benches of this Court to be disposed of on merits, in the light of this judgment. 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfers, import/export violations, crimes of violence and terrorism. 5. Narcotics are often supplied for money and also in exchange for 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 Gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e League of Nations and its Supervisory Body. 13. The second International Opium Convention, held in Greece in 1925 led to the Geneva 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and 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 Conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith. It is not a penal statute like the Indian Penal Code (IPC). 26. The Statement of Objects and Reasons 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 increasingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentation of the then existing international conventions. 30. The NDPS Act with 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 Contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx xxx xxx 34. The Act contains draconian provisions. It must, however, be borne 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 ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affect the validity of any Provincial Act or an Act of any State Legislature for 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 acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded under the Act shall be suspended, remitted or commuted; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and geographical 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, smuggl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Under 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. Referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a person is presumed 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 ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ems fit, the following 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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 specified in section 37(1)(b) is to be released ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erring 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 special enactment, nothing in the Cr.P.C can affect any investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 belief to his immediate official superior, within 72 hours. 80. Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 conveyances and any list of samples drawn under sub-section (2) and certified by the Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 investigate means 'carry out a systematic or formal enquiry into an incident or allegation as to establish the truth'. Investigation, is the act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard 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 be used against an accused offender in the trial of an offence under the NDPS Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 Officer in Charge of a Police Station, for the purpose of investigation. 108. In Mukesh Singh v. State (Narcoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Officer in Charge of a Police Station include such powers. An officer invested with powers under Section 53 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quire 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 the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial. 170. Cases to be sent to Magistrate, when evidence is sufficient.-(1) If, upon an investigation under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 the commission of the offence was first given. * * * * (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report- (a) all documents or relevant extracts thereof on which the prosecution pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 may not apply to such inquiry or investigation. This is because the bar of Article 20(3) of the Constitution of India has to be read into every statute in spirit and substance. There can be no question of obtaining any statement by any inducement, promise or threat. 118. The NDPS Act as observed above, is a complete code. A co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved 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 trial in Court, except to confront him if he appears as a witness and gives evidence to the contrary. Section 53 A (2) makes it abundantly clear that the provision of sub-section (1) of Section 53A, to the extent feasible, applies to all proceedings under the NDPS Act or the Rules or orders thereunder, other than proceedings before a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S 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 section, that is, inter alia to confront the person making the statement in cross examination in the trial. 126. The Legislature has in its wisdom differentiated between a police report, which is deemed to be a complaint, and a complaint made by an officer of the Central or State Government, authorized in this behalf. It is not for this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 apprehension sufficient ground exists; and it shall be lawful for every police officer, for any of the purposes mentioned in this section, without a warrant, to enter and inspect any drinking-shop gaming-house or other place of resort of loose and disorderly characters. xxx xxx xxx 24. Police-officers may lay Information, etc.-It shall be lawful for any police officer to lay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 has reason to believe on the basis of any complaint, information, or suspicion that such person has committed a cognizable offence punishable with imprisonment which may be less than or may extend upto seven years. Such powers can be exercised: (i) if the police officer is satisfied that such arrest is necessary-- (a) to prevent such person from committing any further offence; or ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 have, to exert pressure to extract tailored statements. 140. To summarize, the provisions of the Cr.P.C do not apply to any inquiry or investigation or other proceeding under the NDPS Act, except to the extent expressly provided by the NDPS Act, in view of Section 4(2) read with Section 5 of the Cr.P.C. 141. Officers under the NDPS Act have the power to call for information, to require production of documents and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 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." 148. A confession made by an accused person is irrelevant in a criminal proceeding, if it appears to the Court that the confessions may have been elicited by any induc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 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 witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P. [(1985) 4 SCC 26 : 1985 SCC (Cri) 460 : AIR 1985 SC 1678] this Court cautioned that it is not open t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to be examined by the Court on a case to case basis. Needless to mention that , having regard to all relevant facts and circumstances, the Court may not base conviction solely on a statement made in an inquiry which is confessional, in the absence of other materials with which the statement can be linked. It is for the Special Court to weigh the statement and assess its evidentiary value, having regard to all relevant factors. All statements and documents ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms 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 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 fines". 159. In Barkat Ram (supra), Dayal, J. speaking for the majority observed. 18. We now refer to certain aspects which lead us to consider that the expression "police officer" has not such a wide meaning as to include persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohibition 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 deemed to be an officer in charge of a Police Station with respect to the area to which his appointment as an Excise Officer extends. This Court, therefore found such an officer to be in the same position as an officer in charge of a Police Station, making an investigation under Chapter XIV of the Cr.P.C. 162. This Court held that officers under the Bihar and Orissa Excise Act, 1915 not only had the duty to prevent commission of offences under the said Act but were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ku 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 same powers and shall be subject to the same provisions as the officer incharge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case: Provided that...." 166. In Badku Joti Savant (supra) the Constitution Bench distinguished Raja Ram Jaiswal (supra) held: "9. ....It is true that sub-section (2) confers on the Central Excise Officer under the Act the same powers as an officer incharge of a poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigating 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 statements obtained by coercion, torture or ill-treatment. But a Customs Officer is not a member of the police force. He is not entrusted with the duty to maintain law and order. He is entrusted with powers which specifically relate to the collection of customs duties and prevention of smuggling. There is no warrant for the contention raised by counsel for Mehta that a Customs Officer is invested in the enquiry under the Sea Customs Act with all the powers which a police officer in charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 officers in contradiction to customs officers; (4) If a customs officer takes evidence under Section 171-A and there is 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 him is deemed to be a judicial proceeding for the purpose of Sections 193 and 228 of the Indian Penal Code or for any other purpose." 169. As found in Illias (supra) the main function of the police is prevention a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose 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 investigation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a charge-sheet before the Magistrate concerned under Section 173 of the Code, which has been held to be the clinching attribute of an investigating 'police officer'. Thus, judged by the test laid down in Badku Joti Savant6, which has been consistently adopted in the subsequent decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a 'police officer' within the meaning of Section 25 of the Evidence Act " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 [(1966) 3 SCR 698 : AIR 1966 SC 1746 : 1966 Cri LJ 1353] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgments 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, for the purpose of investigation of an offence under a special act, would not include the power to submit a report under Section 173 of the Cr.P.C, which a police officer has. This view was reiterated by the Constitution Bench in Romesh Chandra Mehta (supra). 180. The powers of investigation conferred on Central Excise Officers under Section 21(2) of the Central Excise Act and on officers of the Railway Protection Force under Section 8(2) of the Railway Property (Unlawful Possession) Act are almost identical to the powers of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal 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 statutes." 185. Constitution benches are constituted to resolve a constitutional issue, harmonize conflicting views and settle the law. A Constitution bench decision might only be reconsidered by a Constitution Bench of a larger strength and that too in exceptional and compelling circumstances. An interpretation which has held the field for over fifty years should not be upset for the asking. A Change in the legal position which has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Committee in Dyke v. Elliott, The Gauntlet [(1872) LR 4 PC 184] , cited by the learned counsel as an aid for construction neatly states the principle and therefore may be extracted: Lord Justice James speaking for the Board observes at LR p. 191: '... No doubt all penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Parliament. They are construed now with reference to the true meaning and real intention of the legislature." 190. In Balram Kumawat v. Union of India (2003) 7 SCC 628, a three-Judge Bench of this Court held:- "23. Furthermore, even in relation to a penal statute any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interpreted having regard to the subject-matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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) acquires possession of, or in any way concerns himself in transporting, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or any rule made thereunder; (bbbb) contravenes any of the provisions of this Act or the rules made thereunder in relation to credit of any duty allowed to be utilised towards payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant, 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) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court. xxx xxx xxx 12-F. Power of search and seizure.- (1) Where the Joint Principal Commissioner of Central Excise or Commissioner of Central Excise or Additional Principal Commissioner of Central Excise or Commissioner of Central Excise] or such other Central Excise Officer as may be notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law 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) unless the contrary is proved by such person, presume- (i) the truth of the contents of such document; (ii) that the signature and every other part of such document which purports to be in the handwriting of any particular person or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence 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 and arrest under the Customs Act. When any goods are seized under the Customs Act in the belief that they are smuggled, the burden of proving that the goods were not smuggled is on the person from whose possession, the goods were seized. If the person from whom the goods are seized is not the owner, the burden would fall on the person who claims to be the owner. Chapter XIII of the Customs Act 1962 relates to searches, seizure and arrest under the said Act. 199. Some of the provisions of the Customs Act are set out hereinbelow: "100. Powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, screen or scan such person using such equipment as may be available at the customs station, but without prejudice to any of the rights available to such person under any other law for the time being in force, including his consent for such screening or scanning, and forward a report of such screening or scanning to the nearest magistrate if such goods appear to be secreted inside his body; or (b) produce him without unnecessary delay before the nearest magistrate. 104. Power to arrest.-(1) If an officer of customs empowered in this behalf by general or special order of the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: Provided that the exemption under Section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court.] 138-C. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence.-(1) Notwithstanding anything contained in any other law for the time being in force,- (a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and included in a printed material produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring 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 describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 enables the proper officer to screen or x-ray the bodies of persons if he has reason to believe that any person referred to in Section 100(2) has any goods, liable to confiscation, secreted inside his body. An empowered officer of customs has power of arrest under Section 104, powers to search premises under Section 105, power to stop and search conveyances under Section 106. 201. Section 107 of the Customs Act enables any officer of customs, duly empowered by general or special order of the Principal Commissioner of Customs/Commissioner of Customs to require any person to produce or deliver any document or thing relevant to the enquiry and to examine any person acquainted with the facts and circumstances of the case, during the course of any enquiry in connection with the smuggling of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 until he can bring him before the Gazetted Officer of Enforcement or the magistrate referred to in sub-section (2). (4) The Gazetted Officer of Enforcement 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. (5) Before making a search under the provisions of this section, the officer of Enforcement 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 documents seized in the course of such search shall be prepared by such officer and signed by such witnesses. (6) No female shall be searched by any one except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 behalf by the Central Government, by general or special order, has reason to believe that any document or thing will be useful for, or relevant to, any investigation or proceeding under this Act or in respect of which a contravention of any of the provisions of this Act or of any rule, direction or order thereunder has taken place, he may seize such document or thing. 39. Power to examine persons.- The Director of Enforcement or any other officer of Enforcement authorised in this behalf by the Central Government, by general or special order may, during the course of any investigation or proceeding under this Act,- (a) require any person to produce or deliver any document relevant to the investigation or proceeding; (b) examine any person acquainted with the facts and circumstances of the case. 40. Power to summon persons to give evidence and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the second and for every subsequent offence 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. (3) Where a person having been convicted of an offence under this Act, [not being an offence under section 13 or clause (a) of 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 offence under this Act [not being an offence under section 13 or clause (a) of 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], the court by whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions of section 45 and notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under section 56 shall be deemed to be non-cognizable within the meaning of that Code." 205. The Railway Property (Unlawful Possession) Act, 1966, as stated in its preamble, is a comprehensive Act to deal with unlawful possession of goods entrusted to the Railways as a common carrier and to make the punishment for such offences more deterrent. The dominant object, or to be precise, the only object of the Railway Property (Unlawful Possession) Act, 1966 is to punish theft, dishonest misappropriation or unlawful possession of railway property. 206. Some of the provisions of the Railway Property (Unlawful Possession) Act are:- 3. Penalty for theft, dishonest misappropriation or unlawful possession of railway property.- Whoever commits theft, or dishonestly misappropriates or is found, or is proved] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 such person (2) For this purpose the officer of the Force may exercise the same powers and shall be subject to the same provisions as the officer incharge 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: Provided that- (a) if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate; (b) if it appears to the officer of the Force that there is not 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 the meaning of Section 193 and Section 228 of the Indian Penal Code (Act 45 of 1860)" Section 40(4) of FERA and Section 9(4) of the Railway Property (Unlawful Possession Act) 1966 are also identical to and/or verbatim reproductions of Section 14(4) of the Central Excise Act and Section 108(4) of the Customs Act. 210. Sections 193 and 228 of the IPC are set out hereinbelow for convenience: "193. Punishment for false evidence.-Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Explanation 1.-A trial before a Court-m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 193 IPC] or of intentional insult or interruption to a public servant at any stage of a "judicial proceeding" punishable with imprisonment which might extend to six months or with fine or both [Section 228 IPC]. 215. Since investigation under the Acts referred to above, namely the Central Excise Act, the Customs Act, the Railway Property (Unlawful Possession) Act has been given the status of judicial proceedings to deter persons from making false statements or otherwise intentionally hampering the investigation, the Legislature has deemed it appropriate to use the expression "shall have power to summon any person whose presence he considers necessary either to give evidence or to produce a document" 216. The expression 'evidence' has apparently been used to create an aura of proceedings, akin to proceedings in a Court of Law. However the admissibility of the statements and/or documents obtained is not any higher only because the proceedings are judicial proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 officers are police officers to attract the bar of Section 25 of the Evidence Act. 220. Section 67 of the NDPS Act enables an officer referred to in Section 42 authorized by the Central or State Government to (i) call for information from any person, (ii) require any person to produce or deliver any useful or relevant document or thing and (iii) to examine any person acquainted with the facts and circumstances of the case, during the course of any inquiry in connection with the contravention of any provision of the NDPS Act. 221. Similarly, an officer invested under Section 53 of the NDPS Act with the power of Officer in Charge of a Police Station for the purpose of investigation of an offence under the NDPS Act has the power to require the attendance of any person who appears to be acquainted with the facts and circumstances of the case and to examine such person. 222. It is difficult to appreciate how the fact that an inquiry under the Central Excise Act or the Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 fundamental rights which occupy a pride of place in the Indian Constitution. These rights are non negotiable and have to zealously be protected, with alacrity. 228. Legislature lacks the power to enact any law which contravenes fundamental rights guaranteed under the Constitution. Any statute and/or statutory provision which violates a fundamental right is liable to be struck down as ultra vires, unless protected from challenge on the ground of violation of fundamental rights by Article 31(A), 31(B) or 31(C) of the Constitution of India. 229. While Article 21 of the Constitution of India provides that no person shall be deprived of his life or liberty, except according to procedure established by law, Article 20 (3) provides that no person accused of any offence shall be compelled to be a witness against himself. 230. The right to live has liberally been construed by this Court to mean the right to live with dignity. All the human rights enumerated in the Universal Declaration of Human Right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 in cases dealing with a privacy claim hitherto. [District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496 : AIR 2005 SC 186] , [State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5] Gobind [Gobind v. State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468] resorted to the compelling State interest standard in addition to the Article 21 reasonableness enquiry. From the United States, where the terminology of "compelling State interest" originated, a strict standard of scrutiny comprises two things-a "compelling State interest" and a requirement of "narrow tailoring" (narrow tailoring means that the law must be narrowly framed to achieve the objective). As a term, "compelling State interest" does not have definite contours in the US. Hence, it is critical that this standard be adopted with some clarity as to when and in what typ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; 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 of this Court recognising privacy as a fundamental right do not need to be revisited. These cases are, therefore, sent back for adjudication on merits to the original Bench of three Hon'ble Judges of this Court in light of the judgment just delivered by us." Kaul, J. "629. The right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the internet. Needless to say that this would not be an absolute right. The existence of such a right does not imply that a criminal can obliterate his past " 232. In Maneka Gandhi v. Union of India AIR 1978 SC 597, this Court held that the procedure established by the law for depriving a person of his life or personal liberty must be fair, reasonable and free of arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotection 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 for obtaining information from an accused strongly suggestive of guilt, becomes compelled testimony. This principle would apply with equal force to any testimony in an investigation before a person other than a police officer including an officer under the NDPS Act. 238. Compulsion may be in many forms. It may be physical or mental. However, mental compulsion takes place when the mind has been so conditioned by some extraneous process, as to render the making of the statement involuntary and therefore, extorted. This proposition finds support from the judgment of this Court in State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808; Poolpandi and Ors. v. Superintendent Central Excise and Ors. AIR 1992 SC 1795. Statements obtained by continuous and prolonged interrogation for hours at a stretch in unhealthy, unhygienic, uncomfortable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Works Pvt. Ltd. v. Chief Inspector of Stamp, U.P. AIR 1968 SC 102, a Statute is an edict of the legislature and has to be construed according to "the intent of those that make it". 245. If a statutory provision is open to more than one interpretation, the Court has to choose that interpretation which represents the true intention of the legislature. It is to be presumed that in enacting a post constitutional law the legislative intent could not have been to violate any fundamental right. 246. In ascertaining the intention of the legislature the Court is to examine two aspects, the meaning of the words and phrases used in the statute and the purpose and object or the reason and spirit pervading through the statute. 247. Legislative intention, that is the true legal meaning of an enactment, is deduced by conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 struck between the need of the law and enforcement thereof on the one hand and the protection of a citizen from oppression and injustice. The requirements of Section 42 and 43 have to be complied with strictly and in letter and spirit. 253. There can be no quarrel with the proposition that the power of search, seizure and arrest is founded upon the competent officer duly empowered having "reason to believe", which might be based on personal knowledge, or secret information provided by an informant whose name need not be disclosed. 254. It is also obvious that a person who does not break the law is entitled to enjoy his life and liberty, which includes the right not to be disturbed in his room, or for that matter elsewhere, without complying with the mandatory safeguards of the NDPS Act. The presumption under Section 66 of the NDPS A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice 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 the Cr.P.C. 260. The Constitution Bench judgment has been followed by two Constitution Bench judgments that is Ramesh Chandra Mehta (supra) and Illias v. Collector of Customs (supra) referred to above and has held the field for over 50 years. As observed above, in Raj Kumar Karwal (supra), this Court made a comparison of the power of a Central Excise Officer under Section 21(2) with those of officer under NDPS Act under Section 50 as also a comparison of Section 36A(1)(d) with Section 190 of the Cr.P.C regarding the manner of taking cognizance of offences and found that the judgment of three Constitution Benches was binding on a two Judge Bench. 261. It is obvious that no two statutes can be identical. There may be differences. If there were no differences, It would not be necessary to enact a separate statute. The question is&n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 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 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. 268. As per the well established norms of judicial discipline and propriety, a Bench of lesser strength cannot revisit the proposition laid down by at least three Constitution Benches, that an officer can be deemed to be a police officer within the meaning of Section 25 of the Evidence Act only if the officer is empowered to exercise all the powers of a police officer including the power to file a report under Section 173 of the Cr.P.C. 269. With the greatest of respect, Counsel appearing in support of the appeals have made general arguments with regard to the differences between p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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