Who is a Police Officer? #2

In Part 1 we examined the background, legal issues and key arguments in the Tofan Singh v State of Tamil Nadu case. In this post, we analyse the judgment: majority opinion authored by Nariman J and dissent by Banerjee J.

Majority Binding Opinion

Protection from Self-Incrimination

The Court noted the distressing culture of torture and forceful measures adopted by the police. It distinguished Section 25 of the Evidence Act from that of Article 20 (3) of the Constitution of India, 1950: the protection from self-incrimination is wider under S. 25 as compared to A. 20 (3). Moreover, a formal accusation is necessary to invoke the protection of A. 20(3); however the same would be irrelevant to invoke the protection under S. 25. The scope of S. 25 is not limited by time, i.e., it would be immaterial whether the person confessed before or after being accused, or while he was free and not in police custody, and also if he was not an accused at the time when the confessional statement was made to the police officer.

In the said context, the Court recognised the stringent nature of the NDPS Act (e.g. the burden of proof being on the accused) and hence, noted that it ought to be construed bearing in mind the fact that the more severe the punishment, the greater the care be taken to see that the safeguards provided in the statute are scrupulously followed.

Who is a Police Officer?

The Court answered the question by stating that a ‘police officer’ does not have to be a police officer in the narrow sense of being a person who is a police officer so designated attached to a police station, but in a wide and popular sense. It went on to observe that where limited powers of investigation are given to officers primarily for some purpose other than the prevention and detection of crime, such persons cannot be said to be police officers under S. 25 of the Evidence Act.  Further, a person who is not a police officer, but is invested with all powers of investigation, which culminates in the filing of a police report, can be said to be a police officer within the meaning of S.25 of the Evidence Act, as and when when they prevent and detect crime.

Extending this analysis to the officers under the NDPS Act, the Court held that officers appointed under/for purposes stated in S.42 and 53 of the Act are indeed police officers. The language of S. 53(1) is crystal clear, and invests the officers with the powers of “an officer-in-charge of a police station for the investigation of the offences under this Act”. Such an officer can, by a legal fiction, be deemed to be an officer in charge of a police station, or can be given the powers of an officer in charge of a police station to investigate the offences under the NDPS Act. If such officers were not deemed to be police officers, it would infringe on the right to equality under Article 14 of the Constitution as the accused would be subjected to a differential and unfair treatment during their trial and conviction, as compared to persons accused under other legislations.

What is the Evidentiary Value of Confessions Given Under S. 67 of the NDPS Act?

Since the officers who are invested with powers under S. 53 of the NDPS Act are “police officers” within the meaning of S. 25 of the Evidence Act, any confessional statement made to them would be barred under the provisions of S. 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. Corollary to the above, any statement recorded under S. 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

For the said reasons, the Court in its majority opinion arrived at the conclusion that a confessional statement made before an officer designated under S. 42 or 53 cannot be used to convict a person under the NDPS Act as they will be hit by S. 25 of the Evidence Act. Furthermore, using them as substantive evidence would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.

J. Banerjee’s Dissent

Banerjee J in her dissenting opinion held that S. 173 of the CrPC is not applicable to the NDPS Act as it is not expressly provided so. Consequently, the officer under S. 53 of the NDPS Act cannot be deemed to have all powers of a police officer to inquire and investigate, except as provided under S. 50(5) and 51. Therefore, the officer cannot be said to be a police officer within the meaning of S. 25 of the Evidence Act.

Commenting on the evidentiary value of statements made under S. 67 of the NDPS Act, she opined that the statute has clearly expressed their validity in a court of law. Hence, any alteration by the Court to the same would amount to legislation on its part, which it is not competent to do.

(Zeeshan Thomas is an intern at the Supreme Court Observer and is studying law at CLC, DU.)