TMI Blog1990 (3) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 173 of the Code. Appeal dismissed. - 449 of 1989 - - - Dated:- 21-3-1990 - A.M. Alimadi and M. Fathima Beevi, JJ. [Judgment per : Ahmadi, J.]. - Are the officers of the Department of Revenue Intelligence (DRI) who have been invested with the powers of an officer-in-charge of a police station under Section 53 of Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter called 'the Act'), "police officers" within the meaning of Section 25 of the Evidence Act? If yes, is a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the said Act, admissible in evidence as against him? These are the questions which we are called upon to answer in these appeals by special leave. 2. These are the facts, briefly stated. A motor truck DEL 3124 was intercepted on July 12,1986 near Calcutta by the DRI officials. On search a large quantity of hashish weighing about 743 Kgs found concealed in machines loaded in the said truck was recovered. The machinery was meant to be exported to Saudi-Arabia and the United Kingdom by M/s. Northern Exports (Importers, Exporters and Commission Agents) and M/s. Modern Machinery a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Single Judge of the Delhi High Court before whom the bail applications came up for hearing felt that the question of admissibility of the confessional statement was of vital and far-reaching importance and since it was likely to arise in a number of such cases it was desirable that it be answered by a larger bench. Accordingly, the question was referred to a Division Bench which concluded that the officials of the DRI invested with powers under Section 53 of the Act do not possess any of the attributes of an officer-in-charge of a police station conducting an investigation under Chapter XII of the Code. The High Court held that a confessional or self-incriminating statement made by a person accused of having committed a crime under the Act to an officer invested with the power of investigation under Section 53 of the Act was not hit by Section 25 of the Evidence Act. After so answering the question, the learned judges constituting the Division Bench sent back the matter for disposal in accordance with law to the learned Single Judge. It is against this conclusion reached by the Division Bench of the High Court that the appellants are before us. 5. Section 25 of the Evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of only those officers belonging to the regular police force but must be construed broadly to include all those who have been invested with powers of the police in the matter of investigation of a penal offence. Since Section 25 engrafts a rule of public policy and is designed to protect a person accused of commission of a crime from third degree treatment or inducements or fraud, counsel argued, confessional statements obtained by such officers exercising police powers, though not belonging to regular police force, should also be excluded from being tendered in evidence against such an accused person. Counsel submitted that since the officers referred to in Section 53 have been invested with all the powers of an officer-in-charge of a police station for investigation of offences under the Act, they have all the attributes of a police officer investigating a crime under Chapter XII of the Code and would, therefore, fall within the expression "police officer" in Section 25 of the Evidence Act. To buttress this submission our attention was invited to Section 2 (xxix) of the Act which says that words and expressions used in the Act but not defined will have the same meaning as is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1966, reflect the concern of the international community for the protection of the individual's right to the enjoyment of the highest attainable standards of physical and mental health. The other International Conventions which prompted the legislation are set out in Section 2(ix) of the Act. Besides, one of the primary duties of the Government under our Constitution is improvement of public health, inter alia, by prohibiting the consumption of intoxicating drinks and drugs injurious to health. The Act was, therefore, enacted, as is evident from its Preamble, inter alia, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and to provide for deterrent punishments, including the forfeiture of property derived from or used in illicit traffic of such drugs and substances. 8. The Act is divided into VI Chapters accommodating 83 Sections. Chapter I contains the short title of the Act, definitions of various terms and expressions used therein and provisions enabling addition to and omission from the list of psychotropic substances. Chapter II entitled 'Authorities Officers' empowers the Central as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reads as under : "Section 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 Border Security Force 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 class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act". Section 53A, inserted by Act 2 of 1989, makes a statement made and signed by a person before any officer empowered under Section 53 for investigation of offences, during the course of such investigation, relevant in certain circumstances e.g., when the maker of the statement is dead or cannot be traced or is incapable of giving evidence or is kept away by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs appointed under the Act and the consequences are so drastic, it is desirable that the protection of Section 25, Evidence Act, should be extended to persons accused of the commission of any crime punishable under the Act. In this connection our attention was drawn to the observations of this Court in Balbir Singh v. State of Haryana J.T. 1987 (1) S.C. 210 wherein it is emphasised that when drastic provisions are made by a statute the duty of care on the authorities investigating the crime under such law is greater and the investigation must not only be thorough but also of a very high order. We, therefore, agree that as Section 25, Evidence Act, engrafts a wholesome protection it must not be construed in a narrow and technical sense but must be understood in a broad and popular sense. But at the same time it cannot be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred within the category of police officers. See The State of Punjab v. Barkat Ram 1962 (3) SCR 338 at 347 and Raja Ram Jaiswal v. State of Bihar 1964 (2) SCR 752 at 761. This view has been reiterated in subsequent cases also. 12. The question then i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng is given to the term 'police officer' indicating thereby an officer designated as police officer, it will lead to anomalous results. An officer designated as a police officer, even though he does not discharge the well understood police functions, will be hit by ss. 25 of the Evidence Act, whereas an officer not so designated but who has all the powers of a police officer would not be hit by that section; with the result, the object of the section would be defeated. The intermediate position, namely, that an officer can be a police officer only if powers and duties pertaining to an officer in charge of a police station within the meaning of the Code of Criminal Procedure are entrusted to him, would also lead to an equally anomalous position, for, it would exclude from its operation a case of an officer on whom specific powers and functions are conferred under specific statutes without reference to the Code of Criminal Procedure. The Code of Criminal Procedure does not define a 'police officer' and ss. 5(2) thereof makes the procedure prescribed by the Code subject to the procedure that may be prescribed by any specific Act. This construction would make the provisions of s. 25 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression in Section 25, Evidence Act. 15. Both these decisions came up for consideration before a bench consisting of five learned Judges of this Court in Badku Joti Savant v. State of Mysore 1966 (3) S.C.R. 698. In that case the appellant was found in possession of contraband gold when his house was raided and searched in the presence of panchas on November 27,1960. The appellant was arrested on November 30,1960 and his statement was reduced to writing and his signature was obtained thereon. In the course of his statement he admitted knowledge about the existence of the contraband goods. Two questions arose for determination, the first related to the interpretation of Section 167(81) of the Sea Customs Act and the second touched the point of admissibility of the confessional statement in view of Section 25, Evidence Act. This Court distinguished Raja Ram Jaiswal's case and held that the facts of the case on hand were more in accord with the case of Barkat Ram. Accordingly, it held that the Central Excise Officer was not a police officer under Section 25 of the Evidence Act. This Court while dealing with the submission based on Section 21(2) of the Central Excises Salt Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. The officer conducting an inquiry under Section 8(1) cannot initiate court proceedings by filing a police report as is evident from the two provisos to Section 8(2) of the Act.......... On the conclusion of an enquiry under Section 8(1), therefore, if the officer of the Force is of the opinion that there is sufficient evidence or reasonable ground of suspicion against the accused, he must file a complaint under Section 190(1) (a) of the Code in order that the Magistrate concerned may take cognizance of the offence. Thus an officer conducting an inquiry under Section 8(1) of the Act does not possess all the attributes of an officer-in-charge of a police station investigating a case under Chapter XIV of the Code. He possesses but a part of those attributes limited to the purpose of holding the inquiry". 19. In a more recent case, Balkishan A. Devidayal etc. v. State of Maharashtra etc. 1981 (1) SCR 175 the question which arose for determination was whether an Inspector of the Railway Protection Forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conveyance or enclosed place between sunrise and sunset without any warrant or authorisation, if there is reason to believe from personal knowledge or information given by any person and reduced to writing, that any narcotic drug or psychotropic substance in respect of which such an offence has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed therein and seize the same. The proviso requires that the concerned officer must record the grounds of his belief before exercising power under the said provision. Subsection (2) of Section 42 enjoins upon an officer taking down the information or recording grounds for his belief to forward a copy thereof to his immediate superior. Section 43 confers on any officer of any of the departments mentioned in Section 42, power to seize in any public place or in transit, any narcotic drug or psychotropic substance, in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and along there with any animal or conveyance or article liable to confiscation under the Act and any document or other article which furnishes evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ins upon the officer arresting a person to inform him of the grounds for his arrest. It further provides that 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. Where, however, the arrest or seizure is effected by virtue of Sections 41(2), 42,43 or 44 the section enjoins upon the officer to forward the person arrested and the article seized to the officer-in-charge of the nearest police station or the officer empowered to investigate under Section 53 of the Act. Special provision is made in Section 52A 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Special Courts for the trial of offences under the Act, notwithstanding anything contained in the Code. But, argued learned counsel for the appellants, the officers empowered to investigate under Section 53 of the Act must of necessity follow the procedure for investigation under Chapter XII of the Code, since the Act does not lay down its own procedure for investigation. By virtue of Section 51 of the Act, the provisions of the Code would apply since there is no provision in the Act which runs counter to the provisions of the Code. It was said that since the term 'investigation' is not defined by the Act, the definition thereof found in Section 2(h) of the Code must be invoked in view of Section 2(xxix) of the Act which in terms states that words and expressions used in the Act but not defined will carry the meaning assigned to them, if defined in the Code. Section 2(h) of the Code, which defines 'investigation' by an inclusive definition means all proceedings under the Code for collection of evidence conducted by a police officer or by any person authorised by a magistrate in this behalf. Under Section 4(2) of the Code all offences under any other law have to be investigated, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legislature desired to vest in the officers appointed under Section 53 of the Act, all the powers of Chapter XII, including the power to submit a report under Section 173 of the Code. But the issue is placed beyond the pale of doubt by sub-section (1) of Section 36A of the Act which begins with a non-obstante clause - notwithstanding anything contained in the Code - and proceeds to say in clause (d) as under : "36-A(d) : a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial." This clause makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI, the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned Government. Needless to say that such a complaint would have to be under Section 190 of the Code. This clause, in our view, clin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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