By:- Lakshay Sharma
In the Supreme Court of India
|Name of the Case||Tofan Singh vs State Of Tamil Nadu|
|Citation||Criminal Appeal No. 152 Of 2013|
|Date of the Case||8 October 2013|
|Respondent(s)||State Of Tamil Nadu|
|Bench/Judges||A.K. Patnaik, A.K. Sikri|
|Statutes/Constitution Involved||The Narcotic Drugs and Psychotropic Substances Act, 1985; The Indian Evidence Act|
|Important Sections/Articles||S. 42, 53, 67 of the Narcotic Drugs and Psychotropic Substances Act|
India is engulfed in drug trafficking under its geographical location, flanked on three sides by illicit narcotic drug production regions. In the West lies Iran, Afghanistan, and Pakistan, In the East, Burma, Thailand, and Laos, thirdly the 1,568 km border with Nepal in the North. The long land border and a network of airports and seaports linking India to other countries have facilitated illegal trafficking in drugs. This case is associated with illegal drug trafficking to Sri Lanka from Chennai.
The case is associated with the illegal trafficking of 5.25 Kg of Heroin to Sri Lanka but apprehended in the middle of their operation by NCB and intelligence officers on their way from Nellore to Chennai. The Appellant here, appealed to the supreme court, as he was wrongly accused and had no partake in the said operation and this case was foisted upon him. Further arguments were made by the learned counsel of the appellant in support of his case, but the two-judge bench referred the case to a larger bench but provided bail to the appellant here.
Background of the Case
- Mr. L.S. Aruldoss, intelligence officer, NCB received an intelligence report on 23rd October 2004, that at about 9:00 p.m. a resident of Nanganallur, Chennai namely Prem alias Kannan alias Sudeshwaran was procuring Narcotics from Guddusingh who was a resident of Rajasthan with the help of Bapulal from Chennai.
- Aforementioned, Bapulal and Kannan, were to leave in a white Ambassador car, and on reaching Chennai, Kannan would smuggle the heroin to Sri Lanka after receiving it.
- Mr. L.S. Aruldoss, after receiving the intelligence, discussed with his seniors and after receiving a green signal proceeded with the case.
- On 24th October 2004, Mr. L.S. Aruldoss along with other officers and one sepoy, and a driver left for the scene of occurrence and intercepted the aforementioned white Ambassador car.
- It was found that there were 6 passengers in total, 2 drivers, and the appellant in front and Bapulal, Guddusingh, and Kannan in back.
- After an inquiry by the police, those seated in the back handed out a green bag stating, it contains 5 kg of heroin.
- The drivers were allowed to go and the rest all were arrested for commission of offenses under the NDPS Act.
- Mr. Murugan recorded the arrested accused person’s statements and the appellant confessed to the commission of the crime.
- The trial court, looking at all the facts gave its judgment on 18th December 2009 stating that the contraband was apprehended by the officers in the middle of the operation and thus the trafficking was not successful and the accused were acquitted for charger under S. 28 of the NDPS Act. But after convicting the accused persons on basis of S. 8(c) and 29 of NDPS Act, sentenced them to undergo 10 years of rigorous imprisonment and to pay a fine of Rs. 1 lakh along with another rigorous imprisonment of 1 year to the appellant, both of the sentences were to be undergone concurrently.
- Appellant dissatisfied and aggrieved by the aforesaid judgment of the trial court filed an appeal in the high court of Madras, which was dismissed on 18th June 2012. Thus the appellant moved to the Supreme Court against the impugned judgment of the high court of madras.
- Whether the officer investigating the matter under NDPS Act would qualify as a police officer or not?
- Whether the statement recorded by the investigating officer under S. 67 of the NDPS Act can be treated as a confessional statement or not?
Arguments of the Appellant
- In the intelligence received by Mr. Aruldoss, there was no mention of the appellant at all and neither was his name disclosed anywhere.
- On the date of the incident, the appellant was found sitting in front and not in the back with the other accused.
- Neither the appellant was in possession of the narcotics as they were handed over to Mr. Aruldoss by those sitting in the back.
- Rs. 680/- along with two second-class train tickets from Shamgarh to Chennai were found by the raiding party in the possession of the appellant herein.
- There was no recovery of any mobile phone linking the other accused and the appellant.
- The prosecution case is hanging solely on the confessional statement given by the appellant, which was purportedly recorded by Mr. Murugan, who also acted as the investigating officer in the case.
- S. 67 of the NDPS Act, gives no power to record confessions or substantive evidence which can be used for a conviction.
Arguments by the Respondents
- The appellant gave a voluntary statement disclosing his involvement in the commission of the offense. He admitted having to bring 5.25 KG of heroin from Maniki Village, District Mandsaur, Rajasthan to Chennai by Jaipur – Chennai Express along with other co-accused Badrilal Sharma wearing RPF Uniform till Nelore, Andhra Pradesh. Thereafter Guddusingh and Bapulal Jain picked them in a car and proceeded to Chennai. But on the way, they were caught by the officials.
- S. 42, 53, and 67 of the NDPS Act do not bar the officer authorized under the act to conduct, search, seizure, investigate and enquire into the matter.
- The confessional statement of Badrilal Sharma, who traveled along with the accused/ appellant was also recorded.
- The ID Card of Badrilal Sharma and the train tickets of the appellant and Badrilal Sharma, as both of them traveled together, came on record. All this proves that the appellant was in possession of the heroin 5.250 Kgs. and carried it from Rajasthan to Chennai intending to smuggle the same to Srilanka
S. 42 of the Narcotic Drugs and Psychotropic Substances Act:
Power of entry, search, seizure, and arrest without warrant or authorization.
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,
(a) enter into and search any such building, conveyance, or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offense punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offense punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]
S. 53 of the Narcotic Drugs and Psychotropic Substances Act:
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 1[or any other department of the Central Government including para-military forces or armed forces] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offenses 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 2[or any other department] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offenses under this Act.
S. 67 of the Narcotic Drugs and Psychotropic Substances Act:
Power to call for information, etc. Any officer referred to in section 42 who is authorized on this behalf by the Central Government or a State Government may, during the course of any inquiry in connection with the contravention of any provisions of this Act,
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the inquiry;
(c) examine any person acquainted with the facts and circumstances of the case.
- Against the sentence of 10 years awarded to the appellant by the Additional Special Court, under the NDPS Act, he had already undergone more than 9 years of the sentence. In these circumstances, it was deemed to be a fit case to suspend further sentence till the disposal of this appeal by the larger Bench.
- The appellant was to be released on bail after furnishing security in the sum of Rs.50,000/- (Rupees Fifty Thousand) with two sureties of the same amount, to the satisfaction of the trial court.
AS PER THE OCTOBER 2020 JUDGMENT
- As the appeal was directed to a larger bench it was concluded in October 2020 that, S. 25 of the Indian Evidence Act would only apply to a police officer or an officer who exercises all the powers of a police officer including the power of filing a police report under S. 173 of the Cr. P.C. An officer under the NDPS Act does not have the power to file a police report under Section 173 of the Cr.P.C.
- The NDPS Act, where the provisions of the Cr. P.C does not apply to any inquiry/investigation, except as provided therein, it cannot be held that the officer has all the powers of a police officer to file a report under S. 173 of the Cr.P.C.
- The statement recorded under S. 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offense under the NDPS Act.
- The officers invested with powers under S. 53 of the NDPS Act are “police officers” within the meaning of S. 25 of the Evidence Act, so, 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 to convict an accused under the NDPS Act.
The two-judge bench of 2013, provided bail to the Appellant as he had already undergone 9 yrs out of the 10 yrs of imprisonment.
The larger bench of 2020 after the judgment given by the two-judge bench of 2013, directing the case to a higher judge bench for consideration of issues concluded that the statement recorded by Mr. Murugan couldn’t be used for conviction