NDPS Act: Confessions can’t be used to convict accused: SC

Confessional statements made before investigating officers by those accused in drug abuse and trafficking cases under the narcotics law cannot be used to convict them

Justice Court
Picture: Pixabay

NEW DELHI: In a landmark verdict, the Supreme Court on Thursday held that confessional statements made before investigating officers by those accused in drug abuse and trafficking cases under the narcotics law cannot be used to convict them, as it would amount to ‘infringement’ of fundamental rights to life, equality and protection against self-incrimination.

A three-judge bench headed by Justice R F Nariman, by a majority of 2:1, analyzed various provisions of the Narcotic Drugs and Psychotropic Substances Act and held that in the absence of any express provision and safeguards, the self-inculpatory statements given by the accused in a drugs case under the law cannot be used to convict him.

While Justice Nariman and Justice Navin Sinha concurred on the findings, Justice Indira Banerjee, the third judge on the bench, differed with the majority.

The 163-page majority judgement, which will have repercussions in cases relating to drugs trafficking and abuse, dealt with the questions referred to it by a two-judge bench in 2013.

The questions pertained to the issues of admissibility of confessional statements under the NDPS Act and whether the officers designated under its provisions can be called as ‘police officers’ for investigation purposes.

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“That the officers who are invested with powers under section 53 (dealing with investigation in drugs case) of the NDPS Act are ‘police officers’ within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act,” the bench held.

Section 25 of the Evidence Act says “no confession made to a police officer, shall be proved as against a person accused of any offence”.

“That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act,” the apex court ruled.

Section 67 of the NDPS Act deals with an officer’s power to call for information.

The court held that any officer who has the power and authority to ‘extract’ confessions to solve a drugs case is a police officer under the narcotics law and hence, the self-inculpatory statements secured by the officer cannot be used as evidence to nail the accused as provided under Section of 25 of the Evidence Act.

The top court referred to the safeguards provided under stringent anti-terror laws POTA and TADA, which have now been repealed, for recording confessional statements of accused which were relied upon during the trial to nail their guilt.

“Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14 (right to equality), 20(3) (protection against self-incrimination) and 21 (right to life) of the Constitution of India,” it held.

As a result, Justice Nariman, writing the majority verdict, overruled two previous judgements which had held contrary views.

Under section 42 of the NDPS Act, a designated officer has powers of ‘entry, search, seizure or arrest’ in a suspected drugs cases.

As per section 53, a designated officer has “all the powers of an ‘officer-in-charge of a police station’ for the process of investigation…”.

The court said a delicate balancing between the powers of the state and the fundamental rights of citizens was needed and the NDPS Act is to be construed in the backdrop of such rights and hence, ‘several safeguards are thus contained in the NDPS Act, which is of an extremely drastic and draconian nature’.

Analyzing various similar provisions, the top court said section 67 of the NDPS Act is only a section which enables an officer notified to gather information in an enquiry in which persons are ‘examined’.

It said POTA and TADA had expressly provided that the law of evidence on admissibility of confessional statements under them would not apply and this was not the case with the NDPS provision.

In 2013, a smaller bench had framed questions and had referred them to a larger bench.

“Whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer..,” one of the questions had said.

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