2013 (10) TMI 361 - SC - Customs

Evidential value of voluntary statement recorded under Section 67 of the NDPS Act had been retracted - whether officers under NDPS Act are police officers and and thus, the evidential value of the statement recorded before him is hit by the provisions of Section 25 of the Indian Evidence Act. - Quantification of punishment - Attempt of export of heroin - Trial Court acquitted accused - High Court convicted accused - Held that - It is clear that section 25 of the Evidence Act was enacted to subserve a high purpose and that his to prevent the police from obtaining confessions by force, torture or inducement. 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. This Court has already doubted the dicta in Kanhaiyalal (2008 (1) TMI 828 - SUPREME COURT) in the case of Nirmal Singh Pehalwan (2011 (7) TMI 1026 - SUPREME COURT). The matter needs to be referred to a larger Bench for re-consideration of the issue as to whether the officer investigating the matter under NDPS Act would qualify as police officer or not. Comparison between section 67 of NDPS act and Section 14 of Central Excise Act and Section 108 of Customs Act - Held that - 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 number of judgments and there is a qualitative difference between the two sets of provisions. In so far 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. As against the sentence of 10 years awarded to the appellant he has already undergone more than 9 years of sentence. In these circumstances, we deem it a fit case to suspend further sentence till the disposal of this appeal by the larger Bench. The appellant shall be released on bail on furnishing security in the sum of ₹ 50,000 with two sureties of the same amount, to the satisfaction of the trial court - Decided in favour of appellant.

Issues Involved:
1. Admissibility and evidentiary value of statements under Section 67 of the NDPS Act.
2. Compliance with procedural safeguards under Sections 42, 50, 52(3), and 57 of the NDPS Act.
3. Fairness of the investigation and the role of the investigating officer.
4. Conviction based on retracted confessions and corroborative evidence.

Issue-wise Detailed Analysis:

1. Admissibility and Evidentiary Value of Statements under Section 67 of the NDPS Act:

The appellant's conviction was primarily based on a confessional statement recorded under Section 67 of the NDPS Act. The appellant argued that Section 67 does not confer power to record confessions or substantive evidence and that such statements are akin to those under Section 161 Cr.PC, which are not substantive evidence. It was also contended that the officer recording the statement should be considered a "police officer" under Section 25 of the Indian Evidence Act, making the statement inadmissible. The court noted the existing judgments in Kanhaiyalal v. Union of India and Raj Kumar Karwal v. Union of India, which held that officers under Section 53 of the NDPS Act are not police officers. However, the court acknowledged the need to re-examine this issue in light of conflicting judgments and the significant powers conferred upon such officers, which align with those of police officers in preventing and detecting crime.

2. Compliance with Procedural Safeguards under Sections 42, 50, 52(3), and 57 of the NDPS Act:

The appellant argued that there was non-compliance with procedural safeguards, particularly Sections 42, 50, 52(3), and 57 of the NDPS Act. Section 42 pertains to the power of entry, search, seizure, and arrest without a warrant. Section 50 deals with the conditions under which searches of persons should be conducted. Section 52(3) mandates that every person arrested or article seized should be forwarded to an officer-in-charge of a police station or an officer empowered under Section 53. Section 57 requires a report of the arrest or seizure to be submitted to the immediate superior officer. The appellant contended that these provisions were not followed, particularly highlighting that the same officer who recorded the statement under Section 67 also acted as the investigating officer, thereby compromising the fairness of the investigation.

3. Fairness of the Investigation and the Role of the Investigating Officer:

The appellant argued that the investigation was not fair as the same officer who recorded the statement under Section 67 of the NDPS Act also acted as the investigating officer, violating the principle of fair investigation. The court noted that fair investigation demands the existence of an independent investigating agency, and the conduct of the officer arresting or an officer under Section 42 should be subject to investigation by an independent agency. The court acknowledged the appellant's argument that this dual role of the officer amounted to non-compliance with Section 52(3) read with Section 58 of the NDPS Act.

4. Conviction Based on Retracted Confessions and Corroborative Evidence:

The appellant's conviction was also challenged on the ground that it was based on a retracted confession. The appellant argued that a retracted confession cannot be the sole basis for conviction and requires corroboration. The court noted that the trial court had dismissed the appellant's arguments regarding the retraction and found the prosecution's evidence sufficient to convict the appellant. However, the appellant contended that the retracted confession should have been investigated further and could only be used to corroborate other evidence, not as substantive evidence itself.

Conclusion and Referral to Larger Bench:

The court concluded that the issues raised by the appellant, particularly regarding the admissibility and evidentiary value of statements under Section 67 of the NDPS Act, the role of the investigating officer, and compliance with procedural safeguards, necessitated a re-examination by a larger bench. The court directed the registry to place the matter before the Chief Justice for the constitution of a larger bench to decide the appeal. Additionally, considering the appellant had already undergone more than nine years of the ten-year sentence, the court deemed it fit to suspend the further sentence and granted bail to the appellant.

Judgment:

The appeal was referred to a larger bench for a detailed examination of the issues raised, and the appellant was granted bail pending the final decision.

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