Full Judgment Text
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PETITIONER:
RAJ KUMAR KARWAL
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.WITHKIRPAL MOHAN VIRMANIV.STATE AND A
DATE OF JUDGMENT21/03/1990
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
FATHIMA BEEVI, M. (J)
CITATION:
1991 AIR 45 1990 SCR (2) 63
1990 SCC (2) 409 JT 1990 (1) 503
1990 SCALE (1)509
ACT:
Narcotic Drugs & Psychotropic Substances Act, 1985:
Sections 36A(d), 52, 52A, 53-Whether Officers of Department
of Revenue Intelligence invested with powers under section
53 are "police officers’ within the meaning of section 25 of
the Evidence Act.
HEADNOTE:
The officers of the Department of Revenue Intelligence
(DRI) intercepted one truck. On search, a large quantity of
hashish was recovered. In the course of investigation the
names of the appellant and the petitioner surfaced. Both of
them made confessional statements to the DRI officials.
Complaints were lodged against the appellant and the
petitioner under the Narcotic DrUgs & Psychotropic Sub-
stances Act, 1985 and the Customs Act, 1962. On their apply-
ing for enlargement on bail, the selfincriminating
statements made by them to the DRI officials were used
against them by the prosecution. The appellant and the
petitioner argued before the Single Judge of the High Court
hearing the bail applications that the said statements were
not admissible in evidence in view of section 25 of the
Evidence Act. The learned Single Judge referred the question
of admissibility of the confessional statements to the
Division Bench which concluded that the officials of the DRI
invested with powers under section 53 of the Narcotic Act
did not possess any of the attributes of an officer-in-
charge of a police station conducting an investigation under
Chapter XII of the Code of Criminal Procedure. Against this
decision of the Division Bench, the appellant and the
petitioner have appealed to this Court.
It was contended before this Court on behalf of the
appellant and the petitioner that: (1) the expression
’police officer’ used in section 25
64
of the Evidence Act must not be read in the narrow sense 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; (2) when such extensive
powers are conferred on the officers appointed under the Act
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and the consequences are so drastic, it is desirable that
the protection of section 25, Evidence Act, should be ex-
tended to persons accused of the commission of any crime
punishable under the Narcotic Act; (3) since the Act does
not prescribe the procedure for investigation, the officers
invested with power under section 53 of the Act must neces-
sarily resort to the procedure under Chapter XH of the Code
of Criminal Procedure, 1973 which would require them to
culminate the investigation by submitting a report under
section 173 of the Code, and (4) 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 Narcotic Act, they have all the at-
tributes of a police officer investigating a crime under
Chapter XII of the Code of Criminal Procedure, 1973 and
would, therefore, fail within the expression "police offi-
cer" in section 25 of the Evidence Act.
Dismissing the appeal and the special leave petition, this
Court,
HELD: (1) Section 25, Evidence Act, engrafts a wholesome
protection. It must not, therefore, 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. [73B-C]
Balbir Singh v. State of Haryana, J.T. 1987 1 SC 210;
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, referred to.
(2) 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 a cognizable
offence, he does not thereby become a police officer under
Section 25, Evidence Act, unless he has the power to lodge a
report under Section 173 of the Code. [76C]
Badku Joti Savant v. State Of Mysore, [1966] 3 SCR 698;
Romesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR
461; Illias v. Collector of Customs, Madras, [1969] 2 SCR
613; State of U.P. v.
65
Durga Prasad, [1975] 1 SCR 81 and Balkishan A. Devidayal v.
State of Maharashtra, [1981] 1 SCR 175, referred to.
(3) The role of the officers effecting arrest or sei-
zure, except in the case of a police officer, ends with
disposal of the person arrested and the article seized in
the manner provided by sections 52 and 52A of the Act.
Section 57 obliges the officer making the arrest or seizure
to report the same to his superior within 48 hours. These
powers are more or less similar to the powers conferred on
Customs Officers under the Customs Act, 1962. [80F-G]
(4) The important attribute of police power is not only
the power to investigate into the commission of cognizable
offence but also the power to prosecute the offender by
filing a report or a charge-sheet under section 173 of the
Code. [81H; 82A]
(5) There is nothing in the provisions of the Act to
show that the 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.[82C-D]
(6) Section 36A (1)(d) of the Act 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
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Special Court would take cognizance of the offence upon a
formal complaint made by such authorised officer of the
concerned Government. [82F-G]
(7) The Division Bench is right in holding that a con-
fessional or self-incriminating statement made by a person
accused of having committed a crime under the Narcotic 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. [67G]
Mahesh v. Union of India, [1988] 1 F.A.C. 339; Mangal
Singh v. The State of Gujarat, [1988] 2 F.A.C. 173; Radha
Kishan Marwari v. King Emperor, [1933] I.L.R. 12 Patna 46
and Sheikh Ahmed v. Emperor, [1927] I.L.R. 51 Bombay 78,
referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 449
of 1989.
’From the Judgment and Order dated 7.12.1988 of the Delhi
High
66
Court in Cr. Rev. No. 170 of 1987.
WITH
Special Leave Petition (Crl.) No. 55 of 1988.
From the Judgment and Order dated 7.12. 1988 of the
Delhi High Court in Crl. Misc. (M) No. 1451 of 1987.
A.K. Sen, Kapil Sibal, Anil Dev Singh, Harlinder Singh,
R.N. Joshi, Ms. Kamini Jaiswal (NP), Mrs. Sushma Suri, A.K.
Srivastava and S.C. Agarwala for the appearing parties.
The Judgment of the Court was delivered by
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 (herein-
after called ’the Act’), "police officers" within the mean-
ing of Section 25 of the Evidence Act? If yes, is a confes-
sional 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.
These are the facts, briefly stated. A motor truck DEL 3
124 was intercepted on July 12, 1986 near Calcutta by the
DRI officials. On search a large quantity of hashish weigh-
ing 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 and Instruments, both of
New Delhi. After the hashish was found hidden in the ma-
chines loaded in the said vehicle, the same was attached
under a seizure memo. Joginder Singh and Shivraj Singh, the
drivers of the vehicle, were apprehended on the spot by the
DRI officials.
The disclosure made by these two drivers led to the
search of a Farm House at Khasra No.417, Gadaipur, Mehrauli,
New Delhi on the 13th/14th and 15th of July, 1986. In the
course of the said search hashish weighing about 976 Kgs.
was recovered from the machines lying in the said premises
and a further quantity of 365 Kgs. was recovered from Gunny
bags which were secreted underground in the
67
out-house of the Farm House. The DRI officials learnt in the
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course of investigation that the said hashish was to be
exported through M/s. Lee Muirhead (I) Ltd., and M/s. Shiekh
and Pandit, of Calcutta. Mohan Lal Pandit and Tushar Pandit,
the partners of the said two firms, respectively, were
arrested. One Subhash Narang who was arrested by the DRI
officials implicated the appellant Kitpal Mohan Virmani. In
the course of investigation the name of the other appellant
Raj Kumar Karwal also surfaced. Both these persons made
confessional statements to the DRI officials in the course
of investigation.
On the conclusion of the investigation a complaint was
lodged against the said two persons under Sections 21, 23,
29 and 30 of the Act and Section 135A of the Customs Act,
1962. The appellants now stand committed to the Court of
Sessions for trial. On the appellants applying for enlarge-
ment on bail under Section 439 of the Code of Criminal
Procedure, 1973 (’the Code’ hereinafter), the self-incrimi-
nating statements made by the appellants to the DRI offi-
cials were used against them by the prosecution to establish
a prima-facie case and to prevent their enlargement on bail.
The appellants argued that the said statements were not
admissible in evidence in view of Section 25 of the Evidence
Act which provides that no confession made to a police
officer shall be proved as against a person accused of any
offence. The question which arose for consideration was
whether DRI officials invested with powers under Section 53
of the Act could be said to be "police officers" within the
meaning of Section 25, Evidence Act, so as to place the
confessional statements recorded by them beyond the reach of
the prosecution. The 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. According-
ly, 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 at-
tributes of an officer-in-charge of a police station con-
ducting 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.
68
Section 25 of the Evidence Act reads as under:
"No confession made to a police officer shall be proved as
against a person accused of any offence."
(Emphasis supplied).
Thus a confession made to a police officer cannot be used or
tendered in evidence as against a person accused of any
offence. Section 26 next provides that 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,
shah be proved as against such person. Section 27, which is
in the nature of an exception to Sections 25 and 26, pro-
vides that, when any fact is deposed to as discovered in
consequence of information received from a person accused of
any offence, in the custody of a police officer, so much of
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such information, whether it amounts to a confession or not,
as relates distinctly to the fact thereby discovered, may be
proved. The restriction on admissibility of a confession of
an accused person imposed by Sections 25 and 26 of the
Evidence Act, when made to a police officer and not in the
immediate presence of a Magistrate, is as a matter of public
policy designed to prevent the practice of securing confes-
sional statements of persons in police custody by means of
threats, inducements, torture, coercion, etc. what impelled
the introduction of this provision was the overwhelming
evidence which disclosed that the powers vested in the
police under the Code were often misused and abused by
police officers investigating crimes for extorting a confes-
sional statement from the accused with a view to earning
credit for the prompt solution of the crime and/or to secure
himself against allegations of supineness or neglect of
duty. It was also realised that once a police officer suc-
ceeds in extorting a confession from the person accused of
the commission of the crime by threats, inducements, etc.,
the real offender becomes more or less immune from arrest.
Therefore, the purpose of the restriction under Section 25
of the Evidence Act, is broadly speaking, two-fold, namely,
(i) to protect the person accused of a crime from third
degree treatment and, more importantly, (ii) to ensure a
proper and scientific investigation of the crime with a view
to bringing the real culprit to book.
It was, therefore, argued by the counsel for the appel-
lants that the expression "police officer" used in Section
25 must not be read in the narrow sense of only those offi-
cers belonging to the regular police force but must be
construed broadly to include all those who have been invest-
ed with powers of the police in the matter of investigation
of a
69
penal offence. Since Section 25 engrafts a rule of public
policy and is designed to protect a person accused of com-
mission of a crime from third degree treatment or induce-
ments or fraud, counsel argued, confessional statements
obtained by such officers exercising police powers, though
not belonging to regular police force, should also be ex-
cluded 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 Evi-
dence 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 assigned to them in the Code. Since
the word ’investigation’ is not defined in the Act, counsel
submitted, that we must look to Section 2(h) of the Code
which defines the said expression to include all proceedings
under the Code for the collection of evidence conducted by a
police officer. Section 4(2) of the Code next provides that
all offences under any other law, i.e., other than the
Indian Penal Code, shall be investigated, inquired into,
tried, and otherwise dealt with according to the same provi-
sions, but subject to any enactment for the time being in
force regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such of-
fences. It was argued that since the Act does not regulate
the manner of investigation, the investigation must be made
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in accordance with the provisions in that behalf contained
in Chapter XII of the Code; it must, therefore, be assumed
that the officer investigating the crime under the Act is a
"police officer", properly so called, and any confessional
statement made to such an officer must be rendered inadmis-
sible in evidence when the maker thereof is accused of
having committed an offence. To appreciate the submissions
made by counsel for the appellants it is necessary to under-
stand the scheme of the Act.
We may at once examine the scheme of the Act. Before the
enactment of the Act, statutory control over narcotic drugs
was exercised through certain State and Central enactments,
principally through the Opium Act, 1856, the Opium Act.
1878, the Dangerous Drugs Act, 1930, etc. However, with the
increase in drug abuse and illicit drug traffic certain
deficiencies in the existing laws surfaced which made it
necessary for Parliament to enact a comprehensive legisla-
tion sufficiently stringent to combat the challenge posed by
drug traffickers. India had participated in the second
International Opium
70
Conference held at Geneva in 1925 which adopted the conven-
tion relating to dangerous drugs. To give effect to the
obligations undertaken by the Government of India by signing
and ratifying the said convention, the Dangerous Drugs Act,
1930 came to be enacted to vest in the Central Government
the control over certain operations concerning dangerous
drugs. Article 25 of the Universal Declaration of Human
Rights, 1948, and Article 12 of the International Covenant
on Economical, Social and Cultural Rights, 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 legisla-
tion are set out in Section 2(ix) of the Act. Besides, one
of the primary duties of the Government under our Constitu-
tion is improvement of public health. inter alia, by prohib-
iting 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 punishment, including the forfei-
ture of property derived from or used in illicit traffic of
such drugs and substances.
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 ’au-
thorities & officers’ empowers the Central as well as the
State Government to make appointments of certain officers.
etc. for the purposes of the Act. The newly added Chapter
IIA provides for the Constitution of a national fund for
control of drug abuse. Provision for the prohibition, con-
trol and regulation on cultivation, production, manufacture,
etc., of any narcotic drug or psychotropic substance is to
be found in Chapter III. Chapter IV defines the offences
punishable under the Act and prescribes the penalties
therefore. Needless to say that the punishments prescribed
are very severe. In some cases the minimum punishment is 10
years with fine extending to Rs.2 lacs and above. By a
recent amendment death penalty is prescribed for certain
offences committed by persons after a previous conviction.
Provision for rebuttable presumption of mensrea-culpable
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mental state--is also made under Section 35 and Special
Courts are envisaged by Sections 36 and 36A for the trial of
offences punishable under the Act. Every offence punishable
under the Act is made cognizable by virtue of Section 37.,
notwithstanding the provisions of the Code. Then comes
Chapter V which outlines the proce-
71
dure to be followed by the officers appointed for the imple-
mentation of the various provisions of the Act. Sub-section
(1) of Section 51 empowers a Metropolitan Magistrate or a
Magistrate of the First Class or a Magistrate of the Second
Class, specially empowered, to issue a warrant for the
arrest of any person suspected of having committed any
offence punishable under the provisions of Chapter IV of the
Act and for the search of any premises, conveyance or place
in which such person is suspected of having kept or con-
cealed any narcotic drug or psychotropic substance. Sections
41(2), 42, 43, and 44 confer on officers named under Act the
powers of arrest, search and seizure without any order or
warrant from the concerned Magistrate. We will refer to
these provisions in some detail when we discuss the impact
thereof hereafter.
Power to stop, rummage and search any conveyance or
goods carried in any conveyance or on any animal is con-
ferred by Section 49. Section 51 provides that all warrants
issued and arrests, searches and seizures made shall be
governed by the provisions of the Code unless such provi-
sions are not consistent with the provisions of the Act.
Next comes Section 53 which we consider proper to repro-
duce at this stage. It 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
72
investigation of offences, during the course of such inves-
tigation, 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 opposite
party or whose presence cannot be secured without delay or
when he is examined as a witness in the case. Section 54
permits raising of a rebuttable presumption against an
accused in a trial for any offence under the Act to the
extent permitted by clauses (a) to (d) thereof. Section 55
enjoins upon an officer-in-charge of a police station to
take charge of and keep in safe custody any article seized
under the Act and made over to him. Section 57 enjoins upon
the officer making an arrest or effecting seizure under the
Act to make a full report thereof to his immediate superior
within 48 hours. Section 58 provides the punishment for
vexatious entry, search, seizure or arrest. Section 67
empowers an authorised officer to call for information or
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require any person to produce or deliver any document or
thing useful or relevant to the enquiry or examine any
person acquainted with the facts and circumstances of the
case. The newly added Chapter VA deals with forfeiture of
property derived from and used in illicit traffic of drugs,
etc. The last Chapter VI contains miscellaneous provisions.
The scheme of the Act clearly shows that the Central
Government is charged with the duty to take all such meas-
ures as it deems necessary or expedient for preventing and
combating the abuse of narcotic drugs (Section 2(xiv) and
psychotropic substances (Section 2(xxiii) and the menance of
illicit traffic (Section 2(viiia) therein As pointed out
earlier Chapter IV defines the offences and prescribes the
punishments for violating the provisions of the Act. We must
immediately concede that the punishments prescribed for the
various offences under the Act are very severe e.g., Sec-
tions 21 and 23 prescribe the punishment of rigorous impris-
onment for a term which shall not be less than ten years but
which may extend to twenty years and shall also be liable to
fine which shall not be less than one lakh rupees but which
may extend to two lakh rupees, Section 29 which makes abet-
ment an offence prescribes the punishment provided for the
offence abetted while Section 30 prescribes the punishment
which is one half of the punishment and fine for the princi-
pal offence. In addition thereto certain presumptions,
albeit rebuttable, are permitted to be raised against the
accused. Counsel for the appellants, therefore, argued that
when such extensive powers are conferred on the officers
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 punish-
73
able 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. 2 10 wherein it is empha-
sised 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, there-
fore, 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.
The question then is whether the expression "police
officer", even if liberally construed, would take in its
fold officers of other departments including the DRI invest-
ed with powers under Section 53 of the Act. According to the
view taken by the Bombay High Court in Sheikh Ahmed v.
Emperor, [1927] I.L.R. 51 Bombay 78 they perhaps would, but
not if the view expressed by the Patna High Court in Radha
Kishan Marwari v. King Emperor, [933] I.L.R. 12 Patna 46
prevails. These two lines of thought have been the subject
matter of scrutiny by this Court in a few subsequent cases.
We will presently refer to them.
In the case of Barkat Ram this Court was called upon to
consider whether Customs Officers to whom confessional
statements were made could be said to be police officers
within the meaning of Section 25, Evidence Act. On behalf of
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the prosecution it was argued that the mere tact that cer-
tain powers of arrest, search, seizure and recording of
evidence have been conferred on such officers, where contra-
vention of the provisions of the statute is complained of,
is not sufficient to make them police officers under Section
25 of the Evidence Act. The respondents on the other hand
contended that officers on whom such powers are conferred
are in fact police officers, no matter by what name they are
called. This Court, by majority, pointed out that the pri-
mary function of the police under the Police Act, 1861, is
prevention and detection of crime while the Customs Officers
are mainly interested in the detection and prevention of
smuggling of goods and safeguarding the recovery of customs
duties, i.e., they are more concerned with the goods and
customs duty, than with the offender. After referring to the
provisions of the various statutes including Section 5(2) of
the Old Code (now Section 4(2). This Court held at pages
364-365 as under:
74
"The foregoing consideration of the case law and the statu-
tory provisions yields the following results: The term
’police officer’ is not defined in the Evidence Act, or, as
a matter of fact, in any other contemporaneous or subsequent
enactment. The question, therefore, fails to be decided on a
fair construction of the provisions of s. 25 of the Evidence
Act, having regard to the history of the legislation and the
meaning attributed to that term in and about the time when
s. 25 of the Evidence Act came to be inserted therein. If a
literal meaning is given to the term ’police officer’ indi-
cating 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 s. 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 con-
ferred under specific statutes without reference to the Code
of Criminal Procedure does not define a ’police officer’ and
s. 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 the Evidence Act otiose in respect of officers on
whom specific and incontrovertible police powers are con-
ferred. But the third position would not only carry out the
intention of the Legislature, but would also make the sec-
tion purposive and useful without doing any violence to the
language of the section. A police officer within the meaning
of s. 25 of the Evidence Act may be defined thus: An offi-
cer, by whatever designation he is called, on whom a statute
substantially confers the powers and imposes the duties of
the police is a police officer within the meaning of s. 25
of the Evidence Act."
In the final analysis this Court held that the duties of the
Customs Officer were substantially different from those of
the police and
75
merely because they possessed certain powers having similar-
ity with those of police officers, cannot make them police
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officers within the meaning of Section 25 of the Evidence
Act.
In the case of Raja Ram Jaiswal, the undisputed facts
were that a motor car was intercepted by an Excise Inspector
and searched. On search five bundles of non-duty paid Napali
charas were found and seized. The Excise Inspector recorded
the statements of all persons found in the car including the
appellant. The admissibility of the appellant’s statement,
was challenged on the ground that it was hit by Section 25,
Evidence Act, This Court, by majority, (Raghubar Dayal, J.)
dissenting, laid down the test in the following words:
"The test for determining whether such a person is a ’police
officer’ for the purpose of s. 25 of the Evidence Act would,
in our 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 a police
station establish a direct or substantial relationship with
the prohibition enacted by s. 25 that is, the recording of a
confession. In our words, the test would be whether the
powers are such as would tend to facilitate the obtaining by
him of a confession from a suspect or a 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"
Applying this test this Court concluded that the Excise
Inspector, who recorded the appellant’s confessional state-
ment was in fact a police officer, properly so-called,
within the meaning of that expression in Section 25, Evi-
dence Act.
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 con-
traband gold when his house was raided and searched in the
presence of panches 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
76
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 Excise & Salt Act,
1944, observed that even though this sub-section confers on
the Central Excise Officer the same powers as an
officer-in-charge of a police station investigating a cog-
nizable case "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 ...... ". Thus the
ratio of the decision appears to be that even if an officer
is invested under any special law with powers analogous to
those exercised by police officer in charge of a police
station investigating a cognizable offence, he does not
thereby become a police officer under Section 25, Evidence
Act, unless he has the power to lodge a report under Section
173 of the Code.
In Ramesh Chandra Mehta v. State of West Bengal, [1969]
2 S.C.R. 461 a bench of five learned Judges held:
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" ...... the test for determining whether an officer of
customs is to be deemed a police officer is whether he is
invested with all the powers of a police officer qua inves-
tigation of an offence, including the power to submit a
report, under s. 173 of the Code of Criminal, Procedure. It
is not claimed that a Customs Officer exercising power to
make an enquiry may submit a report under s. 173 of the Code
of Criminal Procedure".
In Illias v. Collector of Customs, Madras, [1969] 2
S.C.R. 613 the’ same bench was required to consider if
Customs Officials under the Customs Act, 1962, were police
officers within the meaning of Section 25. Evidence Act.
This Court referred to all the cases discussed hereinbefore
and finally approved the test laid down in Badku Joti Savant
and reiterated in Ramesh Chandra Mehta.
In State of U. P. v. Durga Prasad, [1975] 1 SCR 881, the
question for consideration was whether an enquiry under
Section 8(1) of the Railway Property (Unlawful Posssession)
Act, 1966, is an investigation under the Code; if yes,
whether statements recorded in the course of investigation
are hit by Section 162 of the Code and if such statements
are confessional in nature can they be admitted in evidence
in
77
view of Section 25, Evidence Act. This Court observed at
pages 886887 as under:
"The fight and duty of an investigating officer to file a
police report or a charge-sheet on the conclusion of inves-
tigation 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 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 sec-
tion 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-
incharge 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".
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 Force enquiring into an offence under
Section 3 of the Railway Property (Unlawful Possession) Act,
1966, can be said to be a "police officer" under Section 25,
Evidence Act. This Court, after a review of the case law,
concluded at page 201 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 investi-
gation under Chapter XIV of the Code. Particularly, he has
no power to initiate prosecution by filing a chargesheet
before the Magistrate concerned under Section 173 of
78
the Code, which has been held to be the clinching attribute
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of an investigating ’police officer’. Thus, judged by the
test laid down in Badku Jyoti Savant’s which has been con-
sistently 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 ........... "
Keeping in view the law laid down by this Court in the
decisions referred to above, we may now proceed to apply the
test in the context of the provisions of the Act. We have
noticed that Section 37 makes every offence punishable under
the Act cognizable notwithstanding anything contained in the
Code. Section 41(1) empowers a Magistrate to issue a warrant
for the arrest of any person suspected of having committed
any offence under Chapter IV, or for the search of any
building, conveyance or place in which he has reason to
believe any narcotic drug or psychotropic substance or any
document or other article is kept or concealed. Section
41(2) empowers certain gazetted officers of central excise,
narcotics, customs, revenue intelligence, etc., of the
Central Government or the Border Security Force, or any such
officer of the revenue, excise, police, drug control, or
other departments of the State Governments empowered by
general or special orders in this behalf to issue an author-
isation for the arrest of any person believed to have com-
mitted an offence or for the search of any building, convey-
ance or place whether by day or by night in which the of-
fending drug or substance or article is kept or concealed.
Section 42 enables certain officers duly empowered in this
behalf by the Central or the State Governments to enter into
and search any building, conveyance or enclosed place be-
tween sunrise and sunset without any warrant or authorisa-
tion, if there is reason to believe from personal knowledge
or information given any person and reduced to writing, that
any narcotic drug or psychotropic substance inrespect 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. Sub-section (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
79
Chapter IV has been committed, and along therewith any
animal or conveyance or article liable to confiscation under
the Act and any document or other article which furnishes
evidence of the commission of the offence relating to such
drug or substance. Power is also conferred on such an offi-
cer to detain and search any person whom he has reason to
believe to have committed an offence under Chapter IV and if
such person has any narcotic drug or psychotropic substance
in his possession and such possession appears to him unlaw-
ful, arrest him, and any other person in his company. By
Section 44 the provisions of Sections 41, 42 and 43 are made
applicable in relation to offences concerning coca plant,
opium poppy or cannabis plant. Where it is not practicable
to seize any goods (including standing crop) liable to
confiscation, any officer duly authorised under Section 42
is empowered to serve on the owner or person in possession
of the goods, an order that he shall not remove, part with
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or otherwise deal with the goods except with the previous
permission of such officer. Section 48 confers on the Magis-
trate or any officer of the gazetted rank empowered under
Section 42, power of attachment of crop illegally cultivat-
ed. Section 49 empowers any officer authorised under Section
42, if he has reason to suspect that any animal or convey-
ance is, or is about to be, used for the transport of any
narcotic drug or psychotropic substance in respect of which
he suspects that any provision of the Act has been. or is
being, or is about to be contravened, to stop such animal or
conveyance and rummage and search the conveyance or part
thereof; examine and search any goods on the animal or in
the conveyance and use all lawful means for stopping it and
where such means fail, the animal or conveyance may be fired
upon. Section 50 enjoins upon the officer who is about to
search any person, if such person so requires, to take him
without unnecessary delay to the nearest gazetted officer of
any of the departments mentioned in Section 42 or to the
nearest Magistrate. Then comes Section 51 which says that
the provisions of the Code shall apply, insofar as they are
not inconsistent with the provisions of the Act, to all
warrants issued and arrests, searches and seizures made
under the Act. On a plain reading of the section it is clear
that if there is any inconsistency between the provisions of
the Act and the Code, the former will prevail. Section 52
deals with the disposal of persons arrested and articles
seized under Sections 41, 42, 43 or 44 of the Act. It en-
joins 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
80
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-incharge
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 en-
joins 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.
The Act was enacted for the control and regulation of
operations relating to narcotic drugs and psychotropic
substances. Under Sections 41, 42, 43, 44 and 49 of the Act
certain powers of arrest, search and seizure have been
conferred on certain officers of different departments. If
the arrest or seizure is made pursuant to a warrant issued
under Section 41(1), the person arrested or the article
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seized has to be forwarded to the Magistrate with despatch.
If the arrest or seizure is made under Sections 41(2), 42,
43 or 44 the person arrested or the article seized has to be
forwarded to the officer-in-charge of the nearest police
station or the officer empowered under Section 53 of the
Act. Special procedure has been prescribed for the disposal
of narcotic drugs and psychotropic substances having regard
to the factors set out in Section 52A. The role of the
officers effecting arrest or seizure, except in the case of
a police officer, ends with the disposal of the person
arrested and the article seized in the manner provided by
Section 52 and 52A of the Act. Section 57 obliges the offi-
cer making the arrest or seizure to report the same to his
superior within 48 hours. These powers are more or less
similar to the powers conferred on Customs Officers under
the Customs Act, 1962.
For the offences under the Act, the investigation is
entrusted to officers in whom powers of an officer-in-charge
of a police station are vested by a notification issued
under Section 53 of the Act by the
81
concerned Government. Thus a special investigating agency is
created to investigate the commission of offences under the
Act. There is no doubt that the Act creates new offences,
empowers officers of certain departments to effect arrest,
search and seizure, outlines the procedure therefore, pro-
vides for a special machinery to investigate these offences
and provides for the constitution of 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 of 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 con-
ducted 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,
inquired into, tried and otherwise dealt with according to
the provisions contained in the Code. However, according to
Section 5, nothing contained in the Code shall, unless
otherwise provided, affect any special or local law or any
special jurisdiction or power conferred, or any special form
of procedure prescribed, by any other law for the time being
in force. The power to investigate is to be found in Chapter
XII of the Code which begins with Section 154 and ends with
Section 176. The scheme of this Chapter is that the law can
be set in motion in regard to a cognizable offence on re-
ceipt of information, written or oral, by the officer-in-
charge of a police station. Once such information is re-
ceived and registered, Section 156 empowers any officer-
incharge of the police station to investigate the same
without any magisterial order. The investigation which so
commences must be concluded, without unnecessary delay, by
the submission of a report under Section 173 of the Code to
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the concerned Magistrate in the prescribed form. Any person
on whom power to investigate under Chapter XII is conferred
can be said to be a ’police officer’, no matter by what name
he is called. The nomenclature is not important, the content
of the power he exercises is the determinative factor. The
important attribute of police power is not only the power to
investigate
82
into the commission of cognizable offence but also the power
to prosecute the offender by filing a report or a charge-
sheet under Section 173 of the Code. That is why this Court
has since the decision in Badku Joti Savant accepted the
ratio that unless an officer is invested under any special
law with the powers of investigation under the Code, includ-
ing the power to submit a report under Section 173, he
cannot be described to be a ’police officer’ under Section
25, Evidence Act. Counsel for the appellants, however,
argued that since the Act does not prescribe the procedure
for investigation, the officers invested with power under
Section 53 of the Act must necessarily resort to the proce-
dure under Chapter XII of the Code which would require them
to culminate the investigation by submitting a report under
Section 173 of the Code. Attractive though the submission
appears at first blush, it cannot stand close scrutiny. In
the first place as pointed out earlier there is nothing in
the provisions of the Act to show that the 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-ob-
stante 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 Gov-
ernment 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 and subsequent decisions referred to earlier.
83
In view of the above discussion we are of the opinion
that the view taken by the Delhi High Court in the impugned
Judgment, which is in accord with the view taken by the
Allahabad High Court in Mahesh v. Union of India, [1988] 1
F.A.C. 339 and the Gujarat High Court in Mangal Singh v. The
State of Gujarat, [1988] 2 F.A.C. 173, is unassailable and
must be upheld. We, therefore, see no merit in the appeal as
well as the special leave petition and hereby dismiss them.
R.S.S. Appeal and Petition dismissed.
84
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