Confessions under NDPS Act

In this chapter we will discuss about the law regarding confessions, which are made to the
officers empowered under the NDPS Act, 1985 [Act Hereinafter]. Firstly, we will be
defining confession by distinguishing it from admissions. Secondly, we will be discussing the
applicability of Sections 25 to 27 of the Evidence Act, 1872 1 on the “confessions” under the
act.

Confession

Several times confession is confused with admission. Admission is defined under Section 17
of the Evidence Act as a statement made by any person in oral or documentary form which
2
suggests any inference as to fact in issue or any relevant fact. However, definition of
confession is not provided in the Evidence Act. According to Sir Stephen Fitzgerald
confession is an admission made at any time by a person charged with a crime stating or
suggesting the inference that he committed that crime.3

In the matters of Pakala Narayana v. King Emperor4 the Privy Council observed that a
confession must either admit in terms the offence, or at any rate substantially all the facts
which constitute the offence. On the contrary admission is not essentially a statement which
establishes inference to any fact in issue or any relevant fact. Thus, a statement which even if
accepted in toto will still not be enough to secure conviction will not amount to a confession,
even if contains an inculpatory part.5

The communication to another person was not considered to be an essential of an admissible

confession by the SC in the matters of Sahoo v State of UP the accused who was charged
with the murder of his daughter-in-law with whom he was always quarrelling was seen on the
day of the murder going out of the house, saying words to the effect: “I have finished her and
with her the daily quarrels.” The statement was held to be a confession relevant in evidence.6

1
Evidence Act,1872.
2
Pakala Narayana v. King Emperor, AIR 1939 P.C. 47.
3
Sir Stephen Fitzgerald, A Digest of Evidence Law 131 (1876).
4
Pakala Narayana v King Emperor AIR 1939 P.C. 47.
5
Palvinder Kaur v State of Punjab 1952 AIR 354.
6
Sahoo v. State of UP 1966 AIR SC 40
Confession statement cannot be the sole basis of conviction as it has to be corroborated by
other circumstances as well. Court was of the opinion in matters of Narain Singh v State of
Punjab7 that a confession cannot be dissected by the court, such that it leaves out the
exculpatory part and only accept the inculpatory part of a confession.

However, this position was changed by SC in the matters of Nishi Kant Jha v State of Bihar
where a 5 Judge bench ruled that a exculpatory part can indeed be ignored by the court if it is
proved not only to be inherently improbable but also in contradiction with the evidences.8

Extra Judicial confessions can be relied upon by the court to form the basis of conviction
provided it passes the muster of reliability.

Confessions are governed by the Sections 25 -28 of the Evidence Act. Section 26 of the act
clearly states that no confession made in custody of police authorities is admissible if it is
made in absence of magistrate.9 Section 25 of the evidence act states that confession given to
any police officer is inadmissible. 10

However, the applicability of these sections in the cases relating to NDPS Act is still a matter
of legal quagmire with several contradicting judgements, this aspect will be dealt in the next
section.

Applicability of Sections 25-28 of Evidence Act in cases relating to NDPS Act.

Section 67 of the NDPS Act empowers an officer to examine any person, require him to
deliver documents or call for information during the course of investigation of any
contravention to the act.11

On the other hand, the language of Section 25 of the evidence act which makes confessions
inadmissible is couched in a specific language as it applies only to confessions given to
“police officers”.

Thus, the question arose before the court that whether the officers empowered to act under
Sections 42 & 53 of the NDPS Act, be called police officers to be included under the sweep
of Section 25 of Evidence Act.
7
Narain Singh v State of Punjab
8
Nishi Kant Jha v. State of Bihar
9
Section 26 Evidence Act,1872
10
Section 25 Evidence Act,1872
11
Section 67 Narcotics and Psychotropics Substance Act,1986
The SC answered the question in the matters of Raj Kumar Karwal v. Union of India 12
where the accused confessed their crime to officers of Directorate of Revenue of
Intelligence(DRI) and the court after referring to catena of judgements where the court
observed that officers empowered under special acts such as these cannot be called police
officers and hence Sections 25 does not apply to it.

The court based its decision on a two limbed reasoning. Firstly, the court observed that even
though Even if an officer is invested under any special law with powers analogous to those
exercised by a police officer in charge of a police station investigating an offence, he does
not thereby become a police officer under Section 25, unless he has the power to lodge a
report under Section 173 of the Code, which empowers a police officer to forward a report to
the magistrate after completion of an investigation.13

Secondly, the officers empowered under NDPS Act are required to the officer making the
arrest or seizure to report the same to his superior within 48 hours under Section 57 of the
NDPS Act.14

Interestingly in this case, the court heavily relied on the previous judgements where the court
ruled that the officers acting under Section 108 of the Customs Act are not police officers
under Section 25 of the Evidence Act. This reliance of the court was based on the fact that the
powers granted to the officers under NDPS Act and Customs Act are more or less similar.15

This ruling was reiterated by the court in the matters of Kanhaiya Lal v. UOI16 where the
Assistant Narcotics commissioner sent raiding party on the scene in question where they saw
two persons sitting near a well with 3 bags, upon seeing the raiding party one of the accused
ran away.

Another accused identified the other two persons involved, one of whom was Kanhaiyalal
who was later summoned before the investigating officer, who recorded his statement in
which Kanhaiyalal confessed. Later he retracted his confession and thus the question arose
that whether such statements would also be hit by Section 25 of the Evidence Act.

12
Raj Kumar Karwal v Union of India, 1990 AIR 45
13
Section 173 Criminal Code of Procedure, 1976
14
Section 57 Narcotics and Psychotropics Substances Act, 1985
15
Illias v. Collector of Customs, Madras, [1969] 2 SCR 613
16
Kanhaiya Lal v. Union of India (2008) 4 SCC 668
In response the court ruled that an officer for the purposes of Section 67 of the NDPS Act
read with Section 42 thereof, is not a police officer hence the bar under Sections 24 and 27 of
the Evidence Act cannot be attracted and the statement made by a person directed to appear
before the officer concerned may be relied upon as a confessional statement against such
person after relying upon its previous judgements such Raj Kumar Karwal v Union Of
India.17

Building on this ruling the court in the matters of Francis Stanly v. Intelligence Officer,
Narcotic Control Bureau, Thiruvananthapuram18 stated that though the court can rely
upon the confession statements given to officials empowered under the scheme of the act but
court must be satisfied that the given voluntarily and without any coercion of any kind.

However just as soon as this issue was deemed to be settled, the SC took a divergent view in
the matters of Noor Agha Khan v. State of Punjab19 where the court came to the conclusion
that such an interpretation would fall fowl of the Article 20(3) of the Indian Constitution
which provides that no accused shall be compelled to incriminate himself.

Moreover, the court reasoned that the legal fiction provided in the special act should be given
full effect thus bringing them under the ambit of Section 25 of the Evidence Act.

They also observed that the term police should include everyone who is engaged in the work
of detecting and preventing crime. However, this case complicated the legal position as it was
given by a division bench of the SC and thus it had several judgements of coordinate benches
running contrary to it.

However, several subsequent judgements such as Ram Singh v Central Bureau of

Narcotics20 and Peter Prakasam v State21 the courts did not take the ratio of Noor Aga into
account while ruling that confessions given to officers under NDPS Act can form basis for
conviction.

While several judgements such as Nirmal Singh Pehelwan v. Inspector, Customs,

Customs House Punjab22 which preferred the reasoning of Noor Aga in comparison to the
ration of the court in the matters of Kanhaiya Lal v. UOI.

17
Raj Kumar Karwal v. State of Punjab 1990 AIR 45
18
Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram (2006) 13 SCC 210
19
Noor Aga Khan v. State of Punjab, (2008) 16 SCC 417
20
Ram Singh v. Central Bureau of Narcotics AIR 2011 SC 2490
21
Peter Prakasan v. State Criminal Appeal No.785 of 2009
22
(2011) 12 SCC 298
Thus, two conflicting judgements of coordinate bench created uncertainty in the position of
law until 2013 when the SC finally faced the idiosyncrasy created by the Noor Aga
judgement in the matters of Tofan Singh v. State of Tamil Nadu23.

In this case the division bench of the SC, identified that this question of law should be
referred to a larger bench of 3 judges and hence it placed the matter before the Chief Justice.
Even after 5 years since the referral the matter still lies before the bench consisting of Chief
Justice SA Bobade, Justice Surya Kant, Justice BR Gavai.

In this case the court also doubted its approach in previous decisions where it decided that
whether an official is police officer for the purposes of Section 25 only by looking at his
powers to file a chargesheet. It opined that the courts must asses it from the perception of the
common public to assess his capacity to influence, pressure or coercion on persons who are
searched, detained or arrested.

Though the SC has referred the following questions to the larger bench

1. Is the officer recording a statement under Section 67 of the NDPS Act a "police
officer" for the purposes of Section 25 of the Indian Evidence Act 1872?
2. Can the statement recorded under Section 67 of the NDPS Act be treated as a
confession, even if the officer recording it is not treated as a police officer?

But the 3 Judge bench constituted for solving these questions will have an extremely
restricted scope of enquiry as the thumb rule of how to identify a “police officer” cannot be
re-examined in the Tofan Singh hearings, as it was decided by a Five Judge bench in the
matters of Badku Joti Sarup v. State of Mysore24

The salutary principle underlying the section would apply equally to other officers, by
whatever designation they may be known, who have the power and duty to detect and
investigate into crimes and is for that purpose in a position to extract confessions from the
accused.

INTRODUCTION

23
(2013) 16 SCC 31
24
1966 AIR 1746
Narcotics and Psychotropic Substances was enacted by the parliament in order to control the

drug menace in India which reported almost 15 million drug addicts in 1980. The act was

also necessary to be enacted to help India to fulfil its state party obligations under the Single

Convention on Narcotics Drugs (1961). The special act required certain special modes of

procedure and rules of evidence as the nature of offence which was aimed to be combatted

was peculiar in nature.

This project thus attempts to discuss the special rules of evidence which are used in the

NDPS Act and compare it with the established principles of law of evidence. This project

endeavours to trace the efforts of the courts to reconcile these special rules with established

principles which form the background under which law of evidence operates.

Firstly, the project will discuss the concept of reverse burden which shifts the onus on the

accused to prove his innocence in the cases related to narcotics substances. In the first section

several case laws will be referred to for understanding the way in which the court reconciled

this rule with the criminal law’s basic principle of presumption of innocence.

Secondly, this project will discuss the

Thirdly, the project will discuss the position of law on admissibility of confessions given to

officials acting under the act. In order to seek clarity, the project will discuss in detail the

contentious issue of applicability of Section 25 of the Evidence Act on the cases under the

NDPS Act which has long vexed the Supreme Court.

CONCLUSION
This project has discussed in detail, special rules of evidence in the cases under the NDPS

Act. The courts have carefully balanced the fundamental rights of the accused under the act

and the severity of the offence under the act while giving interpretation to the reverse onus

clause in the act. The efforts of the judiciary in reconciling the reverse onus clause with the

long cherished principle of presumption of innocence.

Discovery.
This project also endeavours to discuss the applicability of Section 25 of the Evidence Act in

the cases under the NDPS Act. During the course of discussion on this point, the importance

of the definition of “police officer” for the purpose of the Section 25 of the Evidence Act has

been stressed upon as the said provision only on the police officers.

Though the said question is currently under the consideration of the Three Judge bench of the

Supreme Court but from the above discussion it is apparent that the interpretation of this

court in this matter has been needlessly technical.

In the view of author, the thumb rule of defining a police officer which was laid down by the

constitution bench in the matter of Joti Sarup needs to be reconsidered and assessed in the

background of the objective of insertion of Section 25 in the Evidence Act.

During interpretation of the phrase “police officer” used in the Section 25 of the Evidence

Act the court should keep in mind that the legislative intent behind Section 25 was to prevent

the officials from securing wrongful conviction by obtaining confession under coercion or

threat of torture. Thus in the light of this legislative intention, the court must abstain from

adopting narrow principle for defining police officers for the purpose of the Section 25