Gujarat High Court
Jafarbhai Faiz Mohd. Shaikh vs Union Of India Through Sunil Kumar on 23 February, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/5188/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 5188 of 2018
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JAFARBHAI FAIZ MOHD. SHAIKH
Versus
UNION OF INDIA THROUGH SUNIL KUMAR
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Appearance:
MR S V RAJU, SR. ADVOCATE WITH MR MAULIN G PANDYA(3999) for the
PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1
MR H K PATEL, Additional Public Prosecutor (2) for the RESPONDENT(s)
No. 2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 07/03/2018
ORAL ORDER
1.RULE. Mr.H.K.Patel, learned Additional Public Prosecutor waives service of notice of Rule for and on behalf of the respondentState.
The Rule is fixed forthwith.
2.This is an application for successive bail preferred by the original accused No.3 arrested in connection with the NDPS Case No.03 of 2017 instituted by the respondent original complainant Narcotic Control Bureau, Page 1 of 53 R/CR.MA/5188/2018 ORDER Zonal Unit, Ahmedabad('the NCB' hereinafter) for the alleged offence punishable under Section 8(c), 18(B) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' hereinafter). BY way of the present application under Section 439 of the Code of Criminal Procedure ('the Code' hereinafter), the applicant has requested for regular bail during the pendency of the trial.
3.It is the case of the prosecution that upon receipt of information under Section 42(2) of the N.D.P.S.Act on 24.03.2017 by the complainant, in relation to the parcel containing 650 bottles of Opium arrived through courier at Shree Mahabali Express Pvt. Ltd, near Panchwati Bharuch with a further information that the same was to be received by one Mr.Arif Rasidmiya, the Intelligence Officer, NCB Ahmedabad conducted a raid at the place of information on Page 2 of 53 R/CR.MA/5188/2018 ORDER 27.03.2017. Two parcels were received by Mr.Arif Munshioriginal accused No.1 and after the seizure of both the parcels, he was arrested. During his interrogation, it was revealed that the said parcels were to be delivered to the present applicant, who was based at Surat.
4.It is the case of the applicant that he was alleged to have received these parcels for and on behalf of the original accused No.2.
The present applicant was also arrested by the Intelligence Officer and prior to his arrest, the statement under Section 67 of the NDPS Act has been recorded, which led him to accused No.2. The total seizure of contraband article is 6.723 kgs. of Opium, they were all sent to the judicial custody. After the complaint given under Section 36 (A) of the NDPS Act for the above referred offence, the case is numbered as NDPS Case No.3 of 2017.
5.It is the case of the present applicant that Page 3 of 53 R/CR.MA/5188/2018 ORDER he has been wrongly and illegally arraigned as an accused by relying on the statement of original accused No.1. Moreover, the statements recorded are illegal and inadmissible both under the NDPS Act as well as under Section 24 of the Indian Evidence Act.
5.1 The sealed bottles totally 362 in number had been labelled 'Kamini Vidrawan Ras' and the second parcel contained 288 sealed bottles, were found as opium product. Since representative samples had been taken, it does not reveal anywhere the true picture.
Contentions have also been raised with regard to opening of all the seized 650 bottles and collection of the same in polythene bag. This according to the applicant has taken away the right of the applicant verifying the contentions of the seized sealed bottles.
6.This Court has heard at length Mr.Raju, learned senior counsel, appearing with Page 4 of 53 R/CR.MA/5188/2018 ORDER learned advocate, Mr.Maulin Pandya, who has urged that 'Kamini Vidrawan Ras' with Kesar is freely sold Ayurvedic Viagra and similar products are also being sold under the head of the Ayurvedic product. There is no illegality as no contraband material has been found from the present applicant. He has further urged that the applicant being merely an employee, working in a shoe shop of the original accused No.2, has virtually no role to play, except having followed the advice of his master of collecting the sample from the original accused No.1. If at all the case of the prosecution is believed in its toto, none of the ingredients to constitute the offence under the NDPS Act is spelt out. It is further urged that he has a family with two children aged about four years and six years and it would be extremely cumbersome for the family to sustain since the trial is likely to take a long time.
Page 5 of 53R/CR.MA/5188/2018 ORDER
7.Mr.Raju, learned senior counsel has also urged this Court to consider all those his legal submissions made while arguing the matter being Criminal Misc. Application No.1941 of 2018 in case of accused No.2.
8.Mr.Kartik Pandya, learned advocate appearing for the respondent No.1 has strongly resisted this application and argued along the line of his submissions made earlier while arguing the matter being Criminal Misc. Application No.1941 of 2018.
9.Mr.H.K.Patel, learned Additional Public Prosecutor has adopted the submissions of learned advocate, Mr.Kartik Pandya and resisted this application.
10. Upon hearing the learned advocates on both the sides and also on giving lawful consideration to the submissions, this Court notices that in case of the coaccused, the rejection of request of regular bail is made Page 6 of 53 R/CR.MA/5188/2018 ORDER in Criminal Misc. Application No.1941 of 2018 vide oral order dated 21.02.2018.
10.1 It is to be noted that in the case of the present applicant also, the statement is recorded under Section 67 of the N.D.P.S. Act, which has not been reflected till date.
Although the applicant had been produced before the different courts after his arrest, yet, such a statement continuous to operate qua him.
10.2 Secondly, it is also to be noted that the applicant has attempted to argue that he merely had followed the instructions of accused No.2 while collecting the parcels from accused No.1 at Bharuch. The fact remains that both the parcels, which had been seized from Shree Mahabali Express Pvt. Ltd and where the samples were tested with drug detection test had given positive result for opium. The contents of all the bottles were emptied and a representative samples had been Page 7 of 53 R/CR.MA/5188/2018 ORDER sent to CRCL, Delhi. It has shown the presence of the contraband articles. The total content of contraband article is 6.723 Kgs. Considering the decision rendered in case of E. Michael Raj vs. Intelligence Officer, Narcotic Control Bureau, reported in (2008) 5 SCC 161, the total quantity of drug would be 232 gms and the small quantity of drug is 25 gms. Therefore, it comes in an intermediary category. 2.5 Kgs. becomes commercial quantity. Whereas the quantity in the present case is 6.723 Kgs. However, the pure quantity becomes 232 grams making it a intermediary category.
11.Various issues raised by the learned Senior Counsel, this Court has since decided in the case of coaccused, it would be apt to reproduce relevant paragraphs of Criminal Misc. Application No.1941 of 2018 without separately giving the reasons, which read thus:
"8. Having heard the learned Advocates on both the sides, it can be noticed that Page 8 of 53 R/CR.MA/5188/2018 ORDER the muddamal articles, which is said to have been containing Opium, which is a contraband, article was found in the bottles labeled as 'Kamini Vidravan Rus', which is known as Ayurvedic viagra, which is duly available in the market. It was on a tip off that the NCB carried out a raid and found from the office of the courier services, the packets, which were to be received, initially, by A1 and thereafter by A3. It is the case of the prosecution that at the behest of A2, A 3 was to receive those parcels. The question, therefore, that arises is as to whether, there is prima facie any admissible evidence under the law or there is any cogent reason for this Court to deny bail to the present applicant.
8.1 Before this Court considers the statements under Section 67 of the NDPS Act for which much debate took place during the course of submissions, particularly, because the Apex Court, itself, has referred the matter to the larger Bench in 'TOFAN SINGH VS. STATE OF TAMIL NADU' (Supra), what this Court needs to consider at this stage is as to whether, this is a widespread racket of sending the narcotic drugs under the pretext of Ayurvedic product outside the Country.
8.2 It is on a tip off that the NCB had carried out a raid at the office of Shree Mahabali Express Pvt. Ltd., whereupon, it was found that the parcels were in the name of A1, who had presented himself at the office to collect the same. Undoubtedly, in regard to the two parcels, which had been seized initially, and thereafter, the other parcels seized from the residence of A1, the panchnama had been carried out, later on, at Circuit House.Page 9 of 53
R/CR.MA/5188/2018 ORDER THE CONTENT / PERCENTAGE OF CONTRABAND ARTICLE:
The emphasis on the part of the learned Sr. Advocate, Mr. Raju, is that the samples, which were drawn, were representative in nature, whereas, the panchnama prima facie reveal that all the packets were emptied in a container, and thereafter, the samples were drawn. These samples were when sent to the CRCL, New Delhi, they were found to be containing 'Opium'. The total contents of the packets containing Opium weighed 6.723 kgs.. Undoubtedly, there are four such samples and out of the total number of parcels seized, from each parcel, representative sample had been drawn, after emptying all those bottles of a particular packet.
8.3 In that view of the matter to say that these were reference samples and hence, would not reflect the clear picture of contraband article does not weigh with this Court.
8.4 So far as the total content of opium is concerned, it is argued that the content of Morphin found to be was 2.89%, 3.39%, 3.30% and 2.73% respectively, as per the complaint. As can be culled out from the report of CRCL dated 26.05.2017, which is the result of chemical analysis of all the four samples.
8.5 As mentioned herein above, the emphasis on the part of the applicant is that they should be construed as 0.232 gms and not as 6.723 kgs..
8.6 Reliance in that regard is placed on the decision of the Apex Court rendered in case of 'E. MICHEAL RAJ VS.
INTELLIGENCE OFFICER, NARCOTIC CONTROL Page 10 of 53 R/CR.MA/5188/2018 ORDER BUREAU' (Supra). It was a case, where, the Apex Court was considering the determination of small or commercial quantity in relation to narcotic drugs or psychotropic substances in a mixture with one or more neutral substances. It was while considering the relevant weight of offending drug in the mixture, it held and observed that in the mixture of narcotic drug or psychotropic substance with one or more neutral substances, the quantity of neutral substance is not be taken into consideration while determining the small or commercial quantity of the narcotic drug or psychotropic substance and only actual content by weight of the offending drug which is relevant for the purpose of determining, whether, it would constitute small quantity of commercial quantity.
8.7 At this stage, relevant it would be to refer to the Notification dated 18.11.2009, issued by the Ministry of Finance (Department of Revenue), New Delhi, which read as under:
"...
S.O. 2941(E). IN exercise of the powers conferred by clause (vii a) and (xxiii
a) of section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notification S.O. 1055(E) dated 19th October, 200J, namely: In the Table at the end after Note 3, the following Note shall be inserted, namely: "(4) The quantities shown in Column and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any Page 11 of 53 R/CR.MA/5188/2018 ORDER solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of those drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content."
8.8 Thus, it is clear from the above notification that, as per the requirement of considering the existence of the substance, its entire mixture shall have to be considered, while considering the quantity shown in column 5 and column 6 of the table of the respective drugs shown in Column 2. Bearing in mind that this a notification to possibly nullify effect of the earlier decision of the Apex Court the reference made in 'HIRA SINGH AND ANOTHER VS. UION OF INDIA AND ANOTHER' (Supra)would need discussion hereunder.
8.9 The Apex Court while considering this decision of 'E. MICHEAL RAJ VS. INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU' (Supra), noted that the principle stated in the said decision is that the rate of purity of the drug is decisive for determining the quantum of sentence for small, intermediary or commercial quantity. The punishment must be based on the volume or content of the offending drug in the mixture and not on the aggregate weight of the mixture as such. In other words, the quantity of the neutral substance is not to be taken into consideration. while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug, which is relevant for the purpose of determining the quantity with reference to the quantum of punishment. The Court also Page 12 of 53 R/CR.MA/5188/2018 ORDER noted that the expression 'neutral substance' has not been defined in the Act and that obviously has been coined by the the Court to describe the other components of the mixture or preparation, other than the specified narcotic drug or psychotropic substance.
Therefore, on the detailed discussion on this issue and considering the significance of the issues raised by the parties and the grounds of challenge,concerning the notification, while observing judicial rectitude and in deference of the decisions discussed, therein, the Apex Court in 'E. MICHEAL RAJ' (Supra), directed the matter to be placed at least before a three Judge Bench with an authoritative pronouncement on the matters in issue, which the Apex Court thought of seminal public importance. The relevant observations read thus:
"8. We have heard Shri Manoj Swarup, Shri R.K. Kapoor, Shri Sangram S. Saron and Shri R.B. Singhal for the appellants/petitioners and Shri Ranjit Kumar Solicitor General assisted by Ms. Binu Tamta for the respondents Union of India. Before we embark upon the course to be adopted, we deem it apposite to advert to the relevant portion of the exposition of this Court in E. Micheal Raj (supra). This is a decision of two Judges Bench. In paragraph 15 of the reported judgment, the Court observed thus: (SCC pp. 168
69) "15. It appears from the Statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalize the sentence structure so as to ensure that Page 13 of 53 R/CR.MA/5188/2018 ORDER while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gm and contains 0.2% of heroin or more would be punishable under Section 21 (c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such.
This may be tested on the following rationale. Supposing 4 gm of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gm is mixed with 50 kg of powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, Page 14 of 53 R/CR.MA/5188/2018 ORDER with more severe punishment."
(emphasis supplied) The principle stated in this decision is that the rate of purity of the drug is decisive for determining the quantum of sentence - for "small", "intermediary" or "commercial" quantity. The punishment must be based on the volume or content of the offending drug in the mixture and not on the aggregate weight of the mixture as such. In other words, the quantity of the neutral substance is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug, which is relevant for the purpose of determining the quantity with reference to the quantum of punishment.
9. The respondents have rightly pointed out that the expression "neutral" substance has not been defined in the Act. That obviously has been coined by the Court to describe the other component of the mixture or preparation (other than the specified narcotic drug or psychotropic substance). We are also in agreement with the respondents that, the said decision nowhere makes reference to Note 2 (two) of the notification dated 19.10.2001 and that the same may have some bearing on the issue under consideration. This decision also does not refer to entry no. 239 and the interplay between the various provisions alluded to earlier while noting the argument of the respondents. That may have some bearing on the issue that has been finally answered. The judgment, however, after quoting the notification dated 19.10.2001 took note of the purpose for which Amendment Act of 2001 was Page 15 of 53 R/CR.MA/5188/2018 ORDER brought into force and then proceeded to hold that to achieve the said purpose of rationalisation of the sentence structure, the purity of the narcotic drug from the recovery or seizure made from the offender would be a decisive factor. In other words, the actual content or weight of the narcotic drug or psychotropic substance alone should be reckoned. For taking that view support was drawn from the observations made in another two Judges Bench decision in the case of Ouseph @ Thankachan Vs. State of Kerala3 which, however, has also not elaborately dealt with the issue finally answered in E. Micheal Raj (supra).
10. It was possible to examine the wider issues raised by the respondents upon accepting their argument that the decision in E. Micheal Raj (supra) is per incuriam. However, in our view, that decision has interpreted Section 21 of the Act. That interpretation would bind us. Moreover, that decision has been subsequently noted in other decisions of this Court in the case of Harjit Singh Vs. State of Punjab4, Kashmiri Lal Vs. State of Haryana, State Through Intelligence Officer, and Narcotics Control Bureau Vs. Mushtaq Ahmad and Others6 followed or distinguished. In Amarsingh Ramjibhai Barot vs. State of Gujarat7, quantity of entire mixture was reckoned and not limited to the pure drug content therein. Significantly, in none of these decisions, was the Court called upon to examine the issues now raised by the respondents. Further, all these decisions are of two Judges Bench.
11. Thus, considering the significance of the issues raised by the respondents and the grounds of challenge of the Page 16 of 53 R/CR.MA/5188/2018 ORDER appellants/petitioners concerning the impugned notification, to observe judicial rectitude and in deference to the aforementioned decisions we direct that these matters be placed before atleast a three Judges Bench for an authoritative pronouncement on the matters in issue, which we think are of seminal public importance.
12. The three Judges Bench may have to consider, amongst others, the following questions:
12.1 Whether the decision of this Court in E. Micheal Raj (supra) requires reconsideration having omitted to take note of entry no.239 and Note 2 (two) of the notification dated 19.10.2001 as also the interplay of the other provisions of the Act with Section 21?
12.2 Does the impugned notification issued by the Central Government entail in redefining the parameters for constituting an offence and more particularly for awarding punishment?
12.3 Does the Act permit the Central Government to resort to such dispensation?
12.4 Does the Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug?
12.5 Whether Section 21 of the Act is a stand alone provision or intrinsically Page 17 of 53 R/CR.MA/5188/2018 ORDER linked to the other provisions dealing with "manufactured drug" and "preparation" containing any manufactured drug?
13. It will be open to the parties to persuade the larger Bench to reformulate the aforementioned questions or frame additional question(s), if they so desire."
8.10 It is quite clear from the said decision in the case of 'HIRA SINGH AND ANOTHER'(Supra) that reference to the Larger Bench by the Apex Court is, bearing in mind the importance it has on every matter which is being tried under the provisions of the NDPS Act. This Court cannot be oblivious of the fact that the decision of 'E. MICHEAL RAJ' (Supra), it has not been held per incurium, however, by the Apex Court.
Although, this aspect is to be mainly and essentially seen at the time of punishing a person, where the contraband article seized falls under the small, commercial or intermediary category, at the stage of grant of regular bail also, it would assume importance. Even being alive to the reference to the three judges Bench on the issue of contraband article, according to the prosecution, the same is 0.232 gms., going by the decision of the Apex Court in 'E. MICHEAL RAJ' (Supra).
PANCHNAMA:
8.11 This will take this Court to the challenge with regard to change of venue of panchnama from the residence of A1 to Circuit House and also challenge to the procedure adopted by the NCB, while carrying out the same. In this regard, profitable it would be to refer to the decision of the Apex Court in 'ABDUL Page 18 of 53 R/CR.MA/5188/2018 ORDER SALIM ABDUL MUNAF SHAIKH @ SALIMBHAI & ANOTHER VS. NARCOTICS CONTROL BUREAU AND ANOTHER', 2010 (4) GLR 2985, wherein, it is observed that the standing instructions by NCB require that weighing, taking of samples, packing and sealing of samples etc. should be done at the place of seizure. However, the Apex Court held that not doing of said tasks at the place of seizure would not render seizure doubtful and deviation from standing instructions, for justifiable and valid reasons, is permissible. Since, it is for the Court concerned to look into the validity of those reasons. It is, therefore, premature for this Court to conclude on that aspect, while deciding the application for regular bail.
8.12 This Court is conscious that it is neither deciding appeal nor is it deciding revision and it is at the stage of pending trial that the applicant is before this Court for regular bail. This is an application for regular bail qua the serious offence under the NDPS Act, the applicant is charged with and the trial is not likely to begin in the near future. It is a well laid down law as to when the regular bail can be granted.
Moreover, Section 37 of the NDPS Act is also to be regarded, while considering this request, where, this Court needs to consider existence of prima facie case and those broad principles, which have been laid down by the Apex Court in catena of decisions and particularly, as concised in 'SANJAY CHANDRA' (Supra). Neither it is required to appreciate any evidence nor to conclude on any of the aspects. The broad possibility of prima facie involvement is if considered, it is revealed from the record that four packets were seized, i.e. two from the office of Shree Mahabali Express Pvt.
Page 19 of 53R/CR.MA/5188/2018 ORDER Ltd. and other two from the residence of A1. Further, the identification of A3 is is through the photograph by the personnel of the courier company, which is a procedure, as rightly pointed out by the learned Sr. Counsel, Mr. Raju, it is not acceptable under the procedural law. So far as the supply to the courier company at Mumbai and its sending of the articles abroad are the questions to be determined by the Court concerned, at the relevant point of time, after permitting the prosecution to adduce evidence and to appreciate the same, as is necessary under the law.
8.13 Suffice to hold, at this stage, that the case of the NCB is of continuous export of the contraband to the foreign countries through the courier company based at Mumbai and New Delhi. It is, further, revealed from the record that the investigation qua those courier companies is under progress. Therefore, the limited case qua the present applicant will have to be considered under Section 67 of the NDPS Act.
8.14 This takes this Court to the question of involvement with the aid of statements recorded under Section 68 of the NDPS Act.
8.15 It is not in dispute that prior to the arrest of all the three accused, these statements have been recorded by the NCB. Firstly, the statement of A1 came to be recorded on 28.03.2017, who revealed the names of A3 and A2, i.e. the present applicant. Therefore, both A2 and A3 were called and their statements under Section 67 of the NDPS Act came to be recorded, which subsequently led to their arrest. The details with regard to the supply of Page 20 of 53 R/CR.MA/5188/2018 ORDER the contraband abroad, is prima facie also revealed in their statements. As can be noticed, in all matters under the NDPS Act, the heavy reliance is placed on the statements recorded under Section 67 of the NDPS Act.
8.16 If, one looks at the details provided by each of the accused in their respective statement, recorded under Section 67 of the NDPS Act, they reveal as to how extensively and hos systematically, the supply of drugs to USA and Canada continued. The regular contact based at USA and Canada and sending of them of the bottles of 'Kamini Vidravan Rus' on regular basis. It is also the revelation of sending of consignment for about seven times, consisting 650 bottles per consignment and earning of huge amounts by the accused.
8.17 In the case of 'UNION OF INDIA VS. BAL MUKUND AND OTHERS' (Supra), the conviction was solely based on confessional statement of the co accused, where, the Apex Court held that the conviction should not be based solely on the basis of statement of the coaccused, without independent corroboration, especially when retracted. The Court, further, held that holistic approach needs to be taken by weighing evidentiary value of the confessional statement to see the ground realities, since, the authorities under the NDPS Act can always show that the accused was not arrested before such statement was recorded.
8.18 In the case of 'TOFAN SINGH VS. STATE OF TAMIL NADU' (Supra), the statement under Section 67 of the NDPS Act was recorded by the NDPS Officer, Page 21 of 53 R/CR.MA/5188/2018 ORDER who was allegedly the investigating officer, as provided under Section 53, and who also had made the seizure and arrest under Section 42 of the NDPS Act. The question before the Apex Court was whether, such a statement can be made a sole basis, by construing the same as substantial evidence, to record conviction. Considering the fact that such a confession was retracted, the Apex Court referred the matter to the larger Bench to decide the specific issue and the related issues with the same. It would be vital, at this stage, to reproduce relevant observations, which read thus:
"16. A perusal of the impugned judgment reveals that as many as as six arguments were advanced before the High Court, attacking the findings of the learned trial Court. Taking note of these grounds of appeal, the High Court framed the questions in para 12 of the judgment. We reproduce herein below those six questions formulated by the High Court which reflected the nature defence:
(i) Whether Section 50 of the NDPS Act is complied with or not?
(ii) Whether the provisions of Section 42 of the NDPS Act is complied with or not?
(iii) Whether nonexamination of drivers and nonseizure of vehicle / car are fatal to the case of the prosecution?
(iv) Whether Section 67 statements of the accused is reliable?
(v) Whether accused 2 is entitled to invoke Section 30 of the NDPS Act?Page 22 of 53
R/CR.MA/5188/2018 ORDER
(vi)Whether conviction and sentence passed by the trial Court is sustainable?
17. Obviously, all these questions have been answered by the High Court against the appellant herein as the outcome of the appeals has gone against the appellant. However, it is not necessary to mention the reasons/ rationale given by the High Court in support of its conclusion in respect of each and every issue. We say so because of the reason that all the aforesaid contentions were not canvassed before us in the present appeal. Thus, eschewing the discussion which is not relevant for these appeals, we would be narrating the reasons contained in the impugned judgment only in respect of those grounds which are argued by Mr. Sushil Kumar Jain, learned Counsel appearing for the appellant, that too while taking note of and dealing with those arguments.
THE ARGUMENTS:
18. After giving brief description of the prosecution case, in so far as the alleged involvement of the appellant is concerned. Mr. Sushil Kumar Jain drew our attention to the following aspects as per the prosecution case itself:
(a) In the present case in the prior secret information with the police, there was no prior information with regard to the appellant herein. The secret information (Ex. P72) does not Page 23 of 53 R/CR.MA/5188/2018 ORDER disclose the name of the appellant at all.
(b) On the date of incident also, the appellant was found sitting on the front seat alongwith the two drivers who have been let off by the investigating agency itself and the ambassador car from which the recoveries had been effected has also not been seized. The said drivers could have been the best witnesses but they have not been examined by the prosecution.
(c) The recovery of the narcotic substance was made at the instance of A1 and A2 (and not the appellant herein), who while sitting on the back seat took out a green colour bag from beneath their seat and handed it over to PW.7. The appellant cannot be said to be in conscious possession of the narcotic substance.
(d) In the search conducted of the appellant herein, the raiding party found Indian currency of Rs. 680/ (vide Ex. P11) which is M.O. 15 and two second class train tickets from Shamgarh to Chennai. Thus no incriminating material has been recovered from the appellant. Further there is also no recovery of any mobile phone from the appellant herein which could link the appellant with the other co accused.
(e) The prosecution case hinges solely upon the confessional statement of the appellant herein (Ex. P9), which was recorded by PW.2 - R. Murugan under Section 67 of the Act, and the same person acted as the investigating officer in the present case.Page 24 of 53
R/CR.MA/5188/2018 ORDER
19. From the above, Mr. Jain argued that there was no evidence worth the name implicating the appellant except the purported confessional statement of the appellant recorded under Section 67 of the NDPS Act. After drawing the aforesaid sketch, Mr. Jain endeavoured to fill therein the colours of innocence in so far as the appellant is concerned with the following legal submissions: (I) It was argued that the conviction of the appellant is based upon a purported confessional statement (Ex.
P9] recorded by PW.2 R. Murugan under the provisions of Section 67 of the NDPS Act, which did not have any evidentiary value. Mr. Jain submitted in this behalf that:
(a) There is no power under Section 67 of the NDPS Act to either record confessions or substantive evidence which can form basis for conviction of an accused, in as much as:
(i) The scheme of the Act does not confer any power upon an officer empowered under Section 42 to record confessions since neither a specific power to record confession has been conferred as was provided under Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) or under Section 32 of the Prevention of Terrorism Act, 2002 (POTA) nor the power under Section 67 is a power to record substantive "evidence" as in Section 108 of the Customs Act or Section 14 of the Central Excise Act which are deemed to be judicial proceedings as specifically provided under Section 108(4) of the Customs Act or Section Page 25 of 53 R/CR.MA/5188/2018 ORDER 14(3) of the Central Excise Act.
(ii) The powers under Section 67 has been conferred upon an officer under Section 42 so that such officer can effectively perform his functions. The power under Section 67 is incidental to and intended to enable an officer under Section 42 to effectively exercise his powers of entry, search, seizure or arrest which is provided under Section 42 of the Act. The powers under Section 67 are powers to "call for information" which information can thereafter form the basis for satisfaction of "reasons to believe by personal knowledge or information" appearing in Section 42 and which a jurisdictional basis and a precondition to exercise powers under Section 42 of the Act. Absence of reasons to believe or information would render the exercise under Section 42 of the Act bad in law and hence in order to derive the said information power has been conferred under Section 67 to an officer empowered under Section 42. This statement is, therefore, merely "Information" subject to investigation and cannot be treated as substantive evidence.
(b) Pitching this argument to the next level, it was submitted that the power under Section 67(c) of the Act is merely a power to examine any person acquainted with the facts and circumstances of the case. Such statements are not required in law to be truthful as provided under Section 161(2) of the Criminal Procedure Code, which required the person making statement to a police officer under Section 161 Cr.P.C. to make a true statement. Even such a statement made Page 26 of 53 R/CR.MA/5188/2018 ORDER under Section 161 Cr. P.C. is not a substantive evidence on which a conviction can be based. Statements under Section 67 are not required in law to be given truthfully and hence cannot in any case be treated to be a substantive evidence. Further statement under Section 67 are not recorded after administration of oath as is required under Section 164(5) of the Criminal Procedure Code, the officers are not competent to administer oaths and, therefore, the statements under Section 67 cannot be substantive evidence for recording conviction.
(c) Taking the arguments to a still higher pedestal, Mr. Jain's effort was to demonstrate that the officer recording the statement was a police officer and, therefore, such a statement was hit by Section 25 of the Indian Evidence Act. He submitted that an officer empowered under Section 42 of the Act has been conferred with substantive powers which are powers available to a police officer for detection and prevention of crime. The learned Counsel placed heavy reliance upon the ratio of the judgment of the Constitution Bench of this Court in the case of Batku Jyoti Sawat Vs. State of Mysore 1966 (3) SCC 698 which accepted a broader view, as laid down in the case of Rajaram Jaiswal Vs. State of Bihar 1964 (2) SCR 752 and State of Punjab Vs. Barkat Ram 1962 (3) SCR 338. It was submitted that in view of the ratio of the above judgments, officers empowered under Section 42 and conferred with powers to enter, search, seize or arrest are "police officers" properly so called and hence statements made to such officers would be hit by the Page 27 of 53 R/CR.MA/5188/2018 ORDER provisions of Section 25 of the Evidence Act. In any case such officers would come within the meaning of term "person in authority" and hence the statements recorded by such officers would be hit by the provisions of Section 24 of the Evidence Act especially since the statements were not voluntary and had been retracted by the accused.
(d) In the alternate, the submission of Mr. Jain was that even if it is assumed, without admitting, that Section 67 confers powers to record confessions, the status of a statement recorded by an officer under Section 42 of the Act can at best be recorded as "extra judicial confession" and no conviction can be based solely on the basis of extra judicial convictions.
(e) It was also argued that in any case the statement under Section 67 was retracted and as such the confession in the present case is a retracted confession which ought to have been investigated and could have been used only to corroborate other evidence and not as a substantive evidence itself. He submitted that no conviction can be based on uncorroborated retracted confessional statement as held in Noor Aga Vs. State of Punjab 2008 (9) SCALE 681.
(II) Next submission of Mr. Jain was that there was complete absence of Fair Investigation and Noncompliance of the provisions of Section 52(3) of the Act Pointing out that in the present case the appellant had been arrested by PW.2 - R. Murugan after recording statement under Section 67 of the Act, Page 28 of 53 R/CR.MA/5188/2018 ORDER the ld. Counsel made a fervent plea to the effect that it was evident that PW.2 R. Murugan was exercising purported powers conferred to an officer under Section 42 of the Act.
It was submitted that Section 52(3) of the Act casts an obligation on an officer empowered under Section 42 of the Act to forward, without unnecessary delay every person arrested or article seized to either an officerin charge of a police station or an officer empowered under Section 53. According to him, since there is an obligation to forward such person arrested or article seized, to an officer under Section 53 or an officerincharge of the police station, it necessarily follows that an officer under Section 42 would be different and distinct from an officer invested with the task of investigation, i.e., either the officerincharge of the police station or an officer empowered under Section 53 of the Act. In the present case, however, the PW.2 R. Murugan recorded the statement of the appellant under Section 67 and thereafter arrested him. He was, therefore, required to forward the statement as well as the appellant to the Investigating officer in terms of Section 52(3). Instead, he himself became the Investigating Officer in the present case, which amounted to noncompliance of Section 52(3) read with Section 58 of the Act. Fair investigation demands existence of an independent investigating agency which is also contemplated and is evident from the scheme of NDPS Act. It was submitted that since Section 58 of the Act provides for punishment for vexatious entry, search, seizure and arrest, the conduct of the officer Page 29 of 53 R/CR.MA/5188/2018 ORDER arresting or an officer under Section 42 is subject matter of investigation by an independent agency and hence PW. 2 R. Murugan could not have been made an investigating officer in the present case after he has already acted and exercised powers under Section 42 of the Act.
(III) Another submission of Mr. Jain was that trial was initiated because of Noncompliance of the Provisions of Section 57 of the Act - It was submitted that Section 57 requires that whenever any person makes any arrest or seizure under the Act, then a report thereof has to be submitted of such arrest or seizure to his immediate superior officer. In the present case the raiding party comprised of PW.6 Gunabalan, Superintendent - PW.7 Aruldoss, Intelligence Officer, PW.10 Sendhil Murugan, Intelligence Officer and two other staff members i.e., one Sepoy and one driver. It was submitted that the senior most officer among the raiding team was PW.6 Gunabalan who was, therefore, exercising powers under Section 42 of the Act and the other officers being his subordinates were assisting him in exercise of such powers. Therefore, the report contemplated under Section 57 ought to have been made by PW.6 Gunabalan to his immediate superior officer but instead, in the present case PW.7 Aruldoss has submitted a report to PW.6 Gunabalan under Section 57 of the Act with regard to seizure and PW.2 R. Murugan has submitted report to PW.6 Gunabalan under Section 57 with regard to arrest of the appellant herein. It is, thus, submitted that there is a complete noncompliance of the Page 30 of 53 R/CR.MA/5188/2018 ORDER provisions of Section 57 of the Act which has vitiated the safeguards provided under the Act and as such the appellant could not have been convicted.
20. Arguing on behalf of the prosecutor, Mr. S. Nanda Kumar, learned Counsel submitted that the appellant had given voluntary statement that discloses his involvement in the commission of the offence alongwith other accused persons. In the statement he has categorically admitted having bringing 5.250 kgs of heroin/ narcotic substance from Maniki Village, District Mandsaur, Rajasthan to Chennai by Jaipur - Chennai Express along with other coaccused Badrilal Sharma wearing RPF Uniform till Nelore, Andhra Pradesh. He has also admitted that, thereafter, the other accused namely Guddu Singh @ Vikram Singh and Bapulal Jain picked them in a car and proceeded to Chennai. It is on the way that these accused persons were caught by the respondent's officials and based on their confession as well as the material seized, the case was registered. He also pointed out that it has come on record that Babulal Jain (declared as absconder) and Guddu Singh were involved in the similar offence by selling 8 Kgs. of heroin on earlier occasions which was handed over to Prem @ Kannan, a Srilankan National, another coaccused in this case. It was the second time that the accused persons planned to smuggle the heroin to Srilanka.
21. Refuting the submissions of the Page 31 of 53 R/CR.MA/5188/2018 ORDER appellant, it was submitted that the confessional statement recorded under Section 67 of the NDPS Act could be acted upon, as the officer recording statement under this provision under Section 67 is not a "police officer"
and, therefore, such a statement is not hit by the provisions of Section 24 to 27 of the Evidence Act or Article 20(3) of the Constitution of India. His submission was that law on this aspect had already been settled by the judgment of this Court in Kanhaiyalal v. Union of India; 2008 (4) SCC 668 as well as Raj Kumar Karwal v. Union of India; 1990(2) SCC
409. The learned Counsel pointed out that judgment relied upon by the appellant pertains to other Acts like Customs Act etc. whereas the aforesaid judgments specifically dealt with the nature of duties performed by officers under the NDPS Act and, therefore, on this issue Raj Kumar (Supra) and Kanhaiyalal (Supra) were the binding precedents. He also submitted that as per Section 67 of NDPS Act, any officer referred to in Section 42 of NDPS Act was empowered to obtain a statement. Once the said statement is made it can also be construed as confessional statement since there is no specific provision in the Act to obtain the confessional statement from the accused. Therefore, such a statement of the appellant was rightly relied upon resulting into his conviction.
22. The learned Counsel for the state also countered the submission of the appellant that the officer acting under Section 53 of the NDPS Act i.e. the investigating officer had to be necessarily different from the officer Page 32 of 53 R/CR.MA/5188/2018 ORDER who is acting under Section 42 of the NDPS Act. He submitted that Sections 42, 53 and 67 of NDPS Act do not bar the officer authorized under the act to conduct, search, seizure, investigate and enquire into the matter. His submission was that the depositions of PW.2 - Murugan, Intelligence Officer, PW.6 - Gunabalan, Superintendent and PW.10 - Senthil Murugan, Intelligence Officer establish that they are empowered to act under Section 42, 53 and 67 of the NDPS Act.
23. The learned Counsel also highlighted incriminating facts as per the records viz. the raid team was led by PW.6 Gunabalan, Superintendent along with the PW.10 A. Senthil Murugan, Intelligence Officer and one Aruldoss, Intelligence officer. Also two other officials conducted the raid and made a search and seizure of the heroin on 24.10.2004 at 12.00 hrs. at GNT Road, 100 ft. road, Madhavaram in Chennai where the vehicles come from Nellore, Andhra Pradesh towards Chennai Junction. After the seizure, PW.2 - Murugan enquired into the matter as per the direction of the superintendent. He also obtained the voluntary statement under Section 67 of the NDPS Act. The accused also gave another statement for supply of heroin to Guddu Singh. The confessional statement of Badrilal Sharma, who travelled alongwith accused/ appellant was also recorded.The confessional statement of absconded accused viz. Babulal Jain is also on the original record. In addition to that, the Identity Card of Badrilal Sharma and the train tickets of the appellant and Badrilal Sharma, as both of them Page 33 of 53 R/CR.MA/5188/2018 ORDER travelled together, have come on record. All this proves that the appellant was in possession of the heroin 5.250 Kgs. and carried it from Rajasthan to Chennai with intention to smuggle the same to Srilanka, when he was caught. He thus pleaded that conviction and sentence of the appellant was rightly recorded by the courts below, which warranted no interdicting by this court.
24. From the arguments noted above, it would be clear that the appellant has challenged the conviction primarily on the following grounds:
(i) The conviction is based solely on the purported confessional statement recorded under Section 67 of the NDPS Act which has no evidentiary value in as much as:
(a) The statement was given to and recorded by an officer who is to be treated as "Police Officer" and is thus, hit by Section 25 of the Indian Evidence Act.
(b) No such confessional statement could be recorded under Section 67 of the NDPS Act. This provision empowers to call for information and not to record such confessional statements.
Thus, the statement recorded under this provision is akin to the statement under Section 161 Cr.PC.
(c) In any case, the said statement having been retracted, it could not have been the basis of conviction and could be used only to corroborate other evidence.
(ii) There was absence of fair Page 34 of 53 R/CR.MA/5188/2018 ORDER investigation and noncompliance of the provisions of Section 52(3) of the NDPS Act. This submission is primarily based on the argument that same person cannot be an officer under Section 42 of the NDPS Act as well as investigating officer under Section 52 of the said Act.
(iii) Noncompliance of Section 57 of the NDPS Act is also alleged because of the reason that P.W.7 who was the senior most officer among the raiding team has submitted the report under Section 57 of the NDPS Act with regard to arrest of the appellant to P.W.6j. Instead P.W.6 should have submitted the report of such arrest to P.W.7.
25. We shall take up these arguments in seriatim for our discussion:
Evidentiary value of statement u/s 67 of the NDPS Act.
Before examining this contention of the appellant, it would be apposite to take note of the provisions of Sections 42, 53 and 67 of the NDPS Act. These provisions read as under:
42. 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 intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by Page 35 of 53 R/CR.MA/5188/2018 ORDER 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 fo 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 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 offence punishable under this Act or furnish evidence of holding any illegally Page 36 of 53 R/CR.MA/5188/2018 ORDER 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 offence 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.
"53. Power to invest officers of certain departments with powers of an officerincharge 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 the Border Security Force or any class of such officers with the powers of an officerincharge of Police Station for the investigation of the offences Page 37 of 53 R/CR.MA/5188/2018 ORDER 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 incharge of a police station for the investigation of offences under this Act." "67. Power to call for information etc. Any officer referred to in Section 42 who is authorized in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act:
(a) Call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provision 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 enquiry
(c) Examine any person acquainted with the facts and circumstances of the case."
26. We have already taken note of the contentions of Counsel for the parties on the interpretation of the aforesaid provisions. To recapitulate in brief, the submission of Mr. Jain is that there is no power in the Section67 of the NDPS Act to either record confessions or substantive evidence which can form basis for conviction of the accused. It is also argued that, in any case, such a statement is not Page 38 of 53 R/CR.MA/5188/2018 ORDER admissible in evidence as the excise official recording the statement is to be treated as "police officer" and thus, the evidential value of the statement recorded before him is hit by the provisions of Section 25 of the Indian Evidence Act.
27. The learned Counsel for the respondent had pointed out that in the case of Kanhaiyalal vs. Union of India; 2008(4) SCC 668, it has been categorically held that the officer under Section 63 is not a police officer. In arriving at that conclusion the two judge Bench judgment had followed earlier judgment in the case of Raj Kumar Karwal Vs. Union of India; 1990(2) SCC 409.
28. Had the matter rested at that, the aforesaid dicta laid down by two judge Bench would have been followed by us. However, on the reading of the aforesaid judgment, we find that the only reason to conclude that an officer under Section 53 of the NDPS Act was not a police officer was based on the following observations:
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 officerincharge of a police station under Section 53, for the purpose of investigation of offences under the Act.
29. We find, prima facie, in the arguments of Mr. Jain to be Page 39 of 53 R/CR.MA/5188/2018 ORDER meritorious when he points out that the aforesaid observations are without any detailed discussion or the reasons to support the conclusion arrived at. Mr. Jain's fervent plea to depart from the view taken in the said judgment deserved consideration as there is no provision under the NDPS Act which takes away the power of filing a report under Section 173 of the Code which is available with an officerin charge of a police station. He further argued that the provision of Section 173 are contained in Chapter XII of the Code and since all powers of an officer incharge of a police station has been conferred, there is no legal basis to suggest that the said power is not available with the officer under Section 53 of the Act. Above all, we find that the judgment in Raj Kumar Karwal (supra) was considered by this court in few cases but without giving imprimatur, as can be seen below:
30. Abdul Rashid v. State of Bihar ; (2001) 9 SCC 578, this Court after noticing the judgment in Raj Kumar Karwal (supra), chose to apply the Constitution Bench judgment in the case of Raja Ram Jaiswal reported as (1964) 2 SCR 752 and observed thus: " Mr. B.B. Singh also brought to our notice a judgment of this Court in the case of Raj Kumar Karwal v. Union of India in support of the contention that even a superintendent of excise under the Bihar and Orissa Excise Act is not a police officer and as such a confessional statement made to him would be admissible in evidence. In the aforesaid case, the question for Page 40 of 53 R/CR.MA/5188/2018 ORDER consideration is whether the officers of the Department of Revenue Intelligence (DRI) invested with powers of officer in charge of a police station under Section 53 are police officers or not within the meaning of Section 25, and this Court answered that those officers are not police officers. This decision is in pari material with the Constitution Bench decision in 1966 and does not in any way detract from the conclusion of this Court in Raja Ram which we have already noticed. In Pon Adithan v. Dy. Director, Narcotics Control Bureau this question had not directly been in issue and the only question that was raised is whether the statement made was under threat and pressure. It is obvious that a statement of confession made under threat and pressure would come within the ambit of Section 24 of the Evidence Act. This decision therefore would not be direct authority on the point in issue. In the aforesaid premises, the decision of Raja Ram would apply to the alleged confessional statement made by the appellant to the superintendent of excise and therefore would be inadmissible in evidence."
31. Both the said judgments i.e. Raj Kumar Karwal (supra) as well as Kanhiyalal (supra) were thereafter considered by this court in Noor Aga vs. State of Punjab (2008) 9 SCALE 681 where the court, has after considering the entire scheme of the Customs Act, has held that the officer under Section 53 of the customs Act is a police officer and would, therefore, attract the provisions of Section 25 of the Evidence Act. It observed:
Page 41 of 53R/CR.MA/5188/2018 ORDER "104. Section 53 of the Act, empowers the Customs Officer with the powers of the Station House Officers. An officer invested with the power of a police officer by reason of a special status in terms of subsection (2) of section 53 would, thus, be deemed to be police officers and for the said purposes of Section 25 of the Act shall be applicable."
32. No doubt, Abdul Rashid & Noor Aga were the cases under the Customs Act. But the reasons for holding custom officer as police officer would have significant bearing even when we consider the issue in the context of NDPS Act as well. It would be more so when the schemes & purport of the two enactments are kept in mind. NDPS Act is purely penal in nature. In contradistinction, as far as the Customs Act and the Central Excise Act are concerned, their dominant object is to protect revenue of the State and penal provisions to punish the person found offending those laws are secondary in nature.
33. Further, the NDPS Act is a complete code relating to Narcotic Substances, and dealing with the offences and the procedure to be followed for the detection of the offences as well as for the prosecution and the punishment of the accused. The provisions are penal provisions which can, in certain cases, deprive a person of his liberty for a minimum period of 10 years and can also result in sentences which can extend upto 20 years or even death sentence under certain circumstances. The provisions therefore have to be strictly construed and the safeguards Page 42 of 53 R/CR.MA/5188/2018 ORDER provided therein have to be scrupulously and honestly followed. [See Baldev Singh (1997) 1 SCC 416 Para 28; Union of India vs. Bal Mukund (2009) 12 SCC 161 Para 26, 27 & 28; Balbir Singh vs. State of Haryana (1987) 1 SCC 533].
34. We have also to keep in mind the crucial test to determine whether an officer is a police officer for the purpose of Section 25 of the Evidence Act viz. the "influence or authority"
that an officer is capable of exercising over a person from whom a confession is obtained. The term "police officer" has not been defined under the Code or in the Evidence Act and, therefore, the meaning ought to assessed not by equating the powers of the officer sought to be equated with a police officer but from the power he possesses from the perception of the common public to assess his capacity to influence, pressure or coercion on persons who are searched, detained or arrested. The influence exercised has to be, assessed from the consequences that a person is likely to suffer in view of the provisions of the Act under which he is being booked. It, therefore, follows that a police officer is one who:
(i) is considered to be a police officer in "common parlance" keeping into focus the consequences provided under the Act.
(ii) is capable of exercising influence or authority over a person from whom a confession is obtained.
35. We would also like to point out that Mr. Sushil Kumar Jain had referred to the provisions of the Page 43 of 53 R/CR.MA/5188/2018 ORDER Police Act as well to support his submission. The preamble of the Police Act, 1861 (Act 5 of 1861), which is an Act for the regulation of a group of officers who come within the meaning of the word "police" provides"
"Whereas it is expedient to re organize the police and to make it a more efficient instrument for the prevention and detection of crime, it is enacted as follows." He argued that from the above, it can be seen that the primary object of any police establishment is prevention and detection of crime which may be provided for under the Indian Penal Code or any other specific law enacted for dealing with particular offences and bring the guilty to justice. It was submitted by him that if special authorities are created under special enactments for the same purpose i.e. prevention and detection of crime, such authorities would be "Police and have to be understood in the said perspective. Sections 23 and 25 of the said Act lay down the duties of the police officers and Section 20 deals with the authority and provides that they can exercise such authority as provided under the Police Act and any Act for regulating criminal procedure. Section 5(2) of the Criminal Procedure Code provides that "all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, 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 offences.
36. On the strength of these Page 44 of 53 R/CR.MA/5188/2018 ORDER provisions, the argument of the learned Counsel for the petitioner was that persons categorized as "police officers" can do all the activities and the statute gives them the power to enable them to discharge their duties efficiently. Of the various duties mentioned in Section 23, the more important duties are to prevent the commission of offences and public nuisances and to detect and bring offenders to justice and to apprehend all persons whom the police officer is legally authorized to apprehend. It is clear, therefore, in view of the nature of the duties imposed on the police officer, the nature of the authority conferred and also the purpose of the Police Act, that the powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order. According to the learned Counsel, a comparison to the powers of the officers under the provisions of the NDPS Act makes it clear that the duties and responsibilities of the officers empowered under the Act are comparable to those of the police officers and, therefore, they ought to be construed as such. It is submitted that the primary objective of a NDPS Officer is to detect and prevent crime defined under the provisions of the act and thereafter the procedure has been prescribed to bring the offenders to justice. Thus, the officers under the Act are "Police Officers" and statements made to such officers are inadmissible in evidence.
37. He also drew our attention to the following pertinent observation of this Court in the case of State of Page 45 of 53 R/CR.MA/5188/2018 ORDER Punjab v. Barkat Ram; (1962) 3 SCR
338.
"Section 5(2) of the Code of Criminal Procedure also contemplates investigation of, or inquiry into, offences under other enactments regulating the manner or place of investigation, that is, if an act creates an offence and regulates the manner and place of investigation or inquiry in regard to the said offence, the procedure prescribed by the Code of Criminal Procedure will give place to that provided in that Act. If the said Act entrusts investigation to an officer other than one designated as police officer, he will have to make the investigation and not the police officer. In this situation, the mere use of the words "police officer" in section 25of the Evidence Act does not solve the problem, having regard to permissible rules of interpretation of the term "police officer" in that section. It may mean any one of the following categories of officers : (i) a police officer who is a member of the police force constituted under the Police Act; (ii) though not a member of the police force constituted under the Police Act, an officer who by statutory fiction is deemed to be a police officer in charge of a police station under the Code of Criminal Procedure; and (iii) an officer on whom a statute confers powers and imposes duties of a police officer under the Code of Criminal Procedure, without describing him as a police officer or equating him by fiction to such an officer. Now, which meaning is to be attributed to the term "police officer" in a section 25 of the Evidence Act ? In the absence of a Page 46 of 53 R/CR.MA/5188/2018 ORDER definition in the Evidence Act it is permissible to travel beyond the four corners of the statute to ascertain the legislative intention. What was the meaning which the legislature intended it give to the term "police officer" at the time the said section was enacted ? That section was taken out of the Criminal Procedure Code, 1861 (Act 25 of 1861) and inserted in the Evidence Act of 1872 as section 25. Stephen in his Introduction to the Evidence Act states at p. 171 thus :
"I may observe, upon the provisions relating to them, that sections 25, 26 and 27 were transferred to the Evidence Act verbatim from the Code of Criminal Procedure, Act XXV of 1861. They differ widely from the law of England, and were inserted in the Act of 1861 in order to prevent the practice of torture by the police for the purpose of extracting confessions from persons in their custody. "
So too, Mahmood, J., in Queen Empress v. Babulal I.L.R(1884) . 6 All.
509), gave the following reasons for the enactment of section 25 of the Evidence Act at p. 523.
"........... the legislature had in view the malpractices of police officers in extorting confessions from accused persons in order to gain credit by securing convictions, and that those malpractices went to the length of positive torture; nor do I doubt that the Legislature, in laying down such stringent rules, regarded Page 47 of 53 R/CR.MA/5188/2018 ORDER the evidence of police officers as untrustworthy, and the object of the rules was to put a stop to the extortion of confessions, by taking away from the police officers as the advantage of proving such exported confessions during the trial of accused persons. "
It is, therefore, clear that section 25 of the Evidence Act was enacted to subserve a high purpose and that his to prevent the police from obtaining confessions by force, torture or inducement. The salutary principle underlying the section would apply equally to other officers, by whatever designation they may be known, who have the power and duty to detect and investigate into crimes and is for that purpose in a position to extract confessions from the accused.
"..Shortly stated, the main duties of the police are the prevention and detection of crimes. A police officer appointed under the Police Act of 1861 has such powers and duties under the Code of Criminal Procedure, but they are not confined only to such police officers. As the State's power and duties increased manifold, acts which were at one time considered to be innocuous and even praiseworthy have become offences, and the police power of the State gradually began to operate on different subjects. Various Acts dealing with Customs, Excise, Prohibition, Forest, Taxes etc., came to be passed, and the prevention, detection and investigation of offences created by those Acts came to be entrusted to officers with nomenclatures appropriate to the subject with reference to which they functioned. It is not the garb under Page 48 of 53 R/CR.MA/5188/2018 ORDER which they function that matters, but the nature of the power they exercise or the character of the function they perform is decisive. The question, therefore, in each case is, does the officer under a particular Act exercise the powers and discharge the duties of prevention and detection of crime? If he does, he will be a police officer."
38. In our view the aforesaid discussion necessitates a relook into the ratio of Kanhiyalal Case. It is more so when this Court has already doubted the dicta in Kanhaiyalal (supra) in the case of Nirmal Singh Pehalwan (2011) 12 SCC 298 wherein after noticing both Kanhiyalal as well as Noor Aga, this Court observed thus:
"15. We also see that the Division Bench in Kanhaiyalal case; 2008 (4) SCC 668; (2008) 2 SCC (Crl.) 474, had not examined the principles and the concepts underlying Section 25 of the Evidence Act vis.avis.
Section 108 of the Customs Act the powers of Custom Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar's case (Supra). The latest judgment in point of time is Noor Aga's case which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga's case particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with."
39. For the aforesaid reasons, we are of the view that the matter needs to Page 49 of 53 R/CR.MA/5188/2018 ORDER be referred to a larger Bench for re consideration of the issue as to whether the officer investigating the matter under NDPS Act would qualify as police officer or not.
40. In this context, the other related issue viz. 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 also needs to be referred to the larger Bench, inasmuch as it is intermixed with a facet of the 1st issue as to whether such a statement is to be treated as statement under Section 161 of the Code or it partakes the character of statement under Section 164 of the Code.
41. As far as this second related issue is concerned we would also like to point out that Mr. Jain argued that provisions of Section 67 of the Act cannot be interpreted in the manner in which the provisions of Section 108 of the Customs Act or Section 14 of the Excise Act had been interpreted by number of judgments and there is a qualitative difference between the two sets of provisions. In so far as Section 108 of the Customs Act is concerned, it gives power to the custom officer to summon persons "to give evidence" and produce documents. Identical power is conferred upon the Central Excise Officer under Section 14 of the Act. However, the wording to Section 67 of the NDPS Act is altogether different. This difference has been pointed out by Andhra Pradesh High Court in the Case of Shahid Khan Page 50 of 53 R/CR.MA/5188/2018 ORDER vs. Director of Revenue Intelligence; 2001 (Criminal Law Journal) 3183.
42. The Registry is accordingly directed to place the matter before Hon'ble the Chief Justice for the decision of this appeal by a larger Bench after considering the issues specifically referred as above."
8.19 Undoubtedly, the reference to the larger Bench for determination of issue shall take place at the hands of the Apex Court and, at the time of final decision, that aspect would also need to be taken into consideration by the trial Court along with other aspects. However, for now, this Court needs to determine, going by the decision of the Apex Court in 'E. MICHEAL RAJ' (Supra), the ratio laid down, therein, which is still not diluted, the quantity becomes intermediary quantity so far the reigor of Section 37 of the NDPS is concerned, where the Court needs to satisfy itself that there are reasonable grounds to believe that the person is not guilty of the offence and that the accused is not likely to commit any offence while on bail etc.. Nonetheless, the Court cannot be oblivious of the pure quantity of drug, weighing 0.232 kilo grams (0.232 gms.).
8.20 In 'HIRA SINGH AND ANOTHER VS. UNION OF INDIA AND ANOTHER' (Supra) also, the Apex Court has referred the matter to the larger Bench. However, in the case on hand, the statement made under Section 67 of the NDPS Act, which is sought to be relied on by the NCB, is not of the coaccused, but, it is of the present applicant, himself. The aspect, as to whether, the NDPS Page 51 of 53 R/CR.MA/5188/2018 ORDER Officer is a Police Officer or not, shall be decided by the larger Bench. The decisions prevailing, at present, are not rendered either per curium or otherwise for any other reason not declared not to hold ground.
Therefore, this Court needs to take into consideration.
8.21 Again, over and above the other material, the statement made by the applicant under Section 67 of the Act and the other accused, have not been retracted, till date and therefore also, not to regard them at the stage of considering his bail application, is not a sustainable submission. A specific query has been raised by this Court and the learned Advocate, Mr. Pandya, on getting specific instructions, has submitted to this Court that neither before the Court, before which the accused were produced, nor thereafter, at any stage, retraction from the statement has come. In such a view of the matter, even if, the seizure has been made from A1 and the parcels were to claimed by A3 with a specific case of the prosecution that A3 having worked for A2 with the other evidence, more particularly, statement under Section 67 of the NDPS Act and the CDRs coupled with this, when there is no retraction from the statement made under Section 67 of the NDPS Act, even the rigors of Section 37 of the NDPS Act would not allow this Court to acceded to the request of the applicant for grant of regular bail.
8.22 None of the prima facie observations made by this Court, while deciding this application for regular bail, shall come in the way Page 52 of 53 R/CR.MA/5188/2018 ORDER of the applicant nor shall the trial Court be influenced in any manner by any of them at the time of final adjudication. It shall be guided by the evidence that shall be adduced by the prosecuting agency. Further, the applicant shall be at liberty to request the trial Court to proceed with this matter expeditiously. If, the trial does not proceed within reasonable time, the applicant shall be at liberty to approach this Court, again.
9. Resultantly, this application fails and is DISMISSED. Rule is discharged."
12. With the above findings and observations, this application is also dismissed, with the same liberty as given in case of the co accused. Rule is discharged.
(MS SONIA GOKANI, J ) M.M.MIRZA Page 53 of 53