Who is a Police Officer? #1
The Court deconstructed the legal framework under the NDPS Act to analyse the definition of "police officer".
In Tofan Singh v State of Tamil Nadu, a three-judge bench of the Supreme Court comprising Rohinton F. Nariman, Naveen Sinha and Indira Banerjee JJ heard a reference from a division bench of the Court. The case revolved around conflicts arising from three laws i.e. Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), The Evidence Act, 1872 and the Code of Criminal Procedure, 1973 (CrPC).
City Civil Courts Complex. Image Credits: E-Courts Mission Mode Project
The appellant Tofan Singh was arrested along with three others for attempting to export 5 kgs of heroin to Sri Lanka. Singh confessed to his role in the crime to an Intelligence Officer from the Narcotics Control Bureau (NCB). The Officer investigated the matter and then filed a final report or charge sheet before the Special Court constituted under the NDPS Act. Singh was then sentenced to 10 years rigorous imprisonment and had to pay a fine of Rs. 1 lakh.
He then appealed to the Madras High Court, arguing that the confession which formed the basis of his conviction was inadmissible. Although this appeal was dismissed, Singh approached the Supreme Court with a Special Leave Petition, where the matter was first heard by a division bench.
Before the division bench, the Prosecutor argued that the Supreme Court in the 2008 case of Kanhaiyalal v Union of India held that officers of the Department of Revenue Intelligence invested with the powers of an officer-in-charge under the NDPS Act were not police officers for the purposes of Section 25 of the Evidence Act.
However, the division bench observed that the decision in Kanhaiyalal had been taken “without any detailed discussion…to support the conclusion arrived at”. Further, although the appellant’s arguments had merit, it went against precedent established by another division bench in Kanhaiyalal. Given the importance of the matter, it decided to refer it to a large bench to settle the question.
Issues Before the Court
- Whether an officer “empowered under Section 42 of the NDPS Act” and/or “the officer empowered under Section 53 of the NDPS Act” are “police officers” for the purposes of Section 25 of the Evidence Act?
- What is the scope of the power conferred on these officers under Section 67 of the NDPS Act? Namely, does the power to collect information under Section 67 extend to the power to record a confession?
Deconstructing the Legal Framework
Section 42 of the NDPS Act gives certain government officials the right to enter premises, search, seize and arrest without a warrant. Section 67 of this Act allows the same officer to collect information from or examine any person to determine whether the Act has been violated. Section 53 allows the Central and State governments to invest certain government officials with the powers of an officer-in-charge of a police station for the purpose of investigating offences under this Act. Finally, Section 25 of the Evidence Act states that any confession made to a police officer cannot be considered as evidence that the accused committed a crime.
The appellant argued that the Investigating Officer who recorded his confession was, for all intents and purposes, a police officer. In accordance with Section 25 of the Evidence Act, his confession should not have been admissible as proof of his guilt.
Alternatively, the appellant argued that Section 67 of the NDPS Act only allows an officer to collect information and not to record a confession. The power of a police officer to record a confession or statement under Section 161 of the CrpC is subject to certain procedural safeguards imposed by Section 162 of the same Act. If indeed Section 67 allows officers to record confessions without similar safeguards, it would violate Article 20(3) of the Constitution which protects against self-incrimination. Therefore, he argued, the confession was inadmissible.
In the second part, we will look at the majority opinion authored by Nariman J on October 29th 2020.
(Zeeshan Thomas is an intern at the Supreme Court Observer and is studying law at CLC, DU.)