Introduction

It is important to note that confessions and admissions are different in nature and in legal sense. Confessions are made under criminal laws. Admissions are the weaker form of evidence against the party as it has the right to contradict its’ previously made admissions.

Confessions under NDPS Act

Recently, the Supreme Court in the case of State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta, 2022 LiveLaw (SC) 69, held that confessions made by accused to officials invested with powers of an “officer-in-charge of a police station” under the Narcotic Drugs and Psychotropic Substances (NDPS) Act are not admissible as evidence during court trial.

While a three-judge Bench of Justice Rohinton F. Nariman held that any use of such “confessional statements” would be an infringement of the fundamental right of privacy and the right against self-incrimination of the accused person, Justice Indu Malhotra dissented on the same.

The court observed that “The interpretation of a statute like the NDPS Act must need be in conformity and in tune with the spirit of the broad fundamental right not to incriminate oneself, and the right to privacy. A person’s privacy is not to be trifled with, because if it is, the officer who trifles with it is himself punishable under the provision.”

 

Interpretation of Section 53 of the Act

In the instant judgment Section 53 of the NDPS Act was interpreted by the Apex Court. As per the said provision the Union Government, in consultation with the State, can invest officials of certain departments including central excise, narcotics, customs, revenue intelligence or it may also involve paramilitary or armed forces, with the powers of a police officer.

It was clarified by the Court that the confessions made before a police officer is not admissible as per Evidence Act before the court of law. The Apex Court dealt with the issue i.e. whether or not officers empowered u/s 53 of the NDPS Act could actually be a “police officer” in all sense of the term?

Case referred

In Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, it was held that a confessional statement recorded u/s 67 of the NDPS Act is not admissible in the trial of an offence under the Act. The officers of the Union and State agencies appointed under NDPS Act are ‘police officers’ as per Section 25 of the Evidence Act and hence, any confessional statement made to them would be barred u/s 25 and could not be taken into account in order to convict an accused under the NDPS Act.

The court held that “The officers who are invested with powers under Section 53 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. 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.”

Decision of the Court

It was noted by the Court that except for the voluntary statements of accused/co-accused persons that are recorded u/s 67 of the NDPS Act, there was no substantial material available with the prosecution at the time of arrest to connect the accused with the allegations leveled against them of indulging in drug trafficking.

Justices Nariman and Navin Sinha confirmed that “Any confessional statement made to the officials empowered u/s 53 of the Act would be barred under the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act”. The majority opined that “A statement recorded u/s 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act”.

It was held by the Court that “Where limited powers of investigation are given to officers primarily or predominantly for some purpose other than the prevention and detection of crime, such persons cannot be said to be police officers”. Further it noted that “We are of the firm view that A-2 cannot seek parity with the aforesaid co-accused and no such benefit could have been extended to him in view of Section 37 of the Act when he was found to be in conscious possession of commercial quantity of psychotropic substances, as contemplated under the NDPS Act.”

Hence, in the instant case the arrests made by the NCB, based on the confession/voluntary statements of the respondent(s) u/s 67 of the NDPS Act, cannot form the ground to overturn the impugned orders to release the accused persons on bail.