Delhi High Court
Kirpal Mohan Virmani vs B.D. Mishra on 7 December, 1988
Equivalent citations: 1989(3)CRIMES146, 37(1989)DLT362, 1989(16)DRJ257, 1989(20)ECC28
JUDGMENT G.C. Jain, J.
(1) Whether the officers of the Department of Revenue Intelligence (DRI for short) invested with powers under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1988 (NDPS Act' for short), were police officers within the meaning and scope of Section 25 of the Indian Evidence Act and whether the incriminating statement of an accused person recorded by them is inadmissible in evidence as envisaged by Section 25 of the Evidence Act', is the question which has been referred to a larger Bench for the determination by a learned Single Judge of this Court. In view of this reference. Criminal Revision 170/87, Raj Kumar Karwal v. Union of Ind a & others and Ajit Singh v. State raising inter alia, this question have been sent to the Bench.
(2) The facts leading to the main reference, as gathered from the- petition filed by the petitioner, may be briefly stated. On July 12, 1986, a truck bearing registration No. Del 3124 was intercepted near Calcutta by the officers of the DRI. On its search, hashish weighing about 743 Kgs. concealed in machines loaded in the said truck was recovered. This machinery, it is alleged, was intended to be exported to Saudi Arabia and U. K. on behalf of M/s. Northern Exports (Importers, Exporters and Commission Agents), 116, Hari Nagar Ashram, New Delhi and Modern Machinery and Instruments, G-2, Vishal Marg, Permanand Colony, New Delhi. The sad hashish was seized and the two drivers of the truck, namely, Joginder Singh and Shiv Raj Singh were apprehended by the officers of the DRI.
(3) On the disclosures made by the persons arrested at Calcutta officers of the Dri searched the farm house at Khasra No. 417, Gadai Pur Village, Mehrauli, New Delhi on 13th, 14th, and 15th July, 1986 and hashish weighing 976 Kgs. was recovered from a machinery lying in the said farm house and hashish weighing about 365 Kgs. was recovered from the gunny bags hurried underground in one of the out-houses of the said farm house. This hashish, it is alleged, was meant to be exported through M/s. Lee Muirhead (1) Ltd. of Calcutta and M/s. Sheikh and Pandit Calcutta. Mr. Tushar Pandit, proprietor of M/s. Sheikh and Pandit and Mohan Lal Pandit, partner of M/s. Lee Muirhead were arrested. Besides the said persons, one Subhash Narang was also arrested on 29th September, 1986. He made a confessional statement and is alleged to have implicated the petitioner Kirpal Mohan Virmani.
(4) The petitioner, Kirpal Mohan Virmani, was arrested on 28th September, 1986. He, it is stated, also made a confessional statement before the officers of Dri implicating himself.
(5) After completing the investigation, a complaint was filed against the petitioner for offences under Sections 21, 23, 29 and 30 of the Ndps Act and sections 135A of the Customs Act, 1962. The petitioner has since been committed to the Court of Sessions for trial.
(6) The petitioner moved an application in this Court under Section 439 of the Code of Criminal Procedure for releasing him on bail during the pendency of his trial for the said offences. Before the learned single Judge, who heard the bail petition, it was was argued on behalf of the petitioner that the evidence against the petitioner consisted of the self incriminating statements of the petitioner and Subhash Narang recorded by the officers of the Dri purportedly under section 108 of the Customs Act. The officers of the Dri had been invested with the powers of the office-in charge of a police station under Section 53 of the Ndps Act. They were police officers. The said confessional statements were, therefore, inadmissible in evidence by reason of the provisions contained in Section 25 of the Evidence Act. Learned single Judge felt that this question of law was of far-reaching importance and of vital consequence, It was likely to arise in large number of cases. He, therefore, referred the above mentioned question to a larger Bench. This is how the said question has come before us for decision.
(7) Section 25 of the Evidence Act, 1872 reads asunder :-
"25. Confession to police officer not to be proved:-No confession made to a police officer, shall be proved as against a person accused of any offence."
(8) The rule embodied in this Section was enacted in view of the special circumstances obtained in this country. The intention of the Legislature for the enactment of Section 25 of the Evidence Act, it appears, was to prevent extortion of confessions and the invention of them both facilitating the procuring of convictions which police officers were considered- likely to employ. The purpose of enacting Section 25 of the Evidence Act was to put a stop to the extortion of confessions by the police officers by mal-practices.
(9) The criterion for excluding confession under this Section is the- answer to the question, to whom was the confession made? If that answer is that it was made to a police officer, the confession is inadmissible.
(10) The expression "Police Officer" used in Section 25 is not defined in the Evidence Act. Section 1 of the Police Act, 1861 defines "Police" as including all persons enrolled under that Act. primarily, the term "Police Officer" in Section 25 of the Evidence Act means the same as it does in the Police Act, 1861 but now it is settled law that the term "Police Officer" in Section 25 of the Evidence Act is not to be read in technical sense but according to its more comprehensive and popular meaning. These words are, however, not to be construed in so wide a sense as to include persons on whom only some of the powers exercised by the Police are conferred. (See State of Punjab v. Barket Ram and Raja Ram Jaiswal v. Slate of Bihar).
(11) The Supreme Court in Ramesh Chand Mehta v. State of West Bengal, laid down the test for determining whether the officer in question was to be deemed to be a police officer for purposes of Section 25 of the Evidence Act. The test is whether he is invested with all the powers of a police officer quo investigation of an offence including the power to submit a report under Section 173 of the Code of Criminal Procedure.
(12) An officer-in-charge of a police station properly so called, is competent to take various steps of Criminal Procedure. Sect. 154(1) of the Code of Criminal Procedure imposes a duty on the police officer-in-charge of a Police Station to reduce to Writing every information relating to the commission of a cognisable offence. Section 156 empowers an officer in charge of the Police Station to investigate any cognisable case without the order of a Magistrate. Section 157 requires him to proceed to the spot. Under Section 160 he can summon witnesses who appear to be acquainted with the facts and circumstances of the case. Under Section 161 he can summon witnesses who appear to be acquainted with the facts and circumstances of the case. Under Section 161 he can examine orally any person acquainted with the facts and circumstances and reduce to writing any statement made to him in the course Of examination. Under Section 165 he is competent to make a search if he has reasonable grounds for believing that anything necessary for the purpose of investigation maybe found. Under Section 173 he is required to submit a report fo the Magistrate empowered to take cognisance of the offence on completing the investigation. Section 41 empowers every police officer to arrest any person who has been concerned in any cognisable offence Without a warrantor order from a Magistrate.
(13) Whether officers invested with powers under Section 53 of the Ndps Act have all the above mentioned powers?
(14) The Ndps Act, as its preamble says, was enacted to consolidate. and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and for matters connected therewith. Section 4 inquires the Central Government to take all such measures as it deemed necessary or expedient for the purpose of preventing and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic therein. Section 8 prohibits cultivation of coca plant or gathering any portion of coca plant, cultivation of opium poppy or any cannabis plant; or production manufacture, possession, sale, purchase, transportation, warehousing, use, consumption, import inter-state, export inter-state, import into India, export from India or transhipment of any narcotic drug or psychotropic substance. This is subject to certain exceptions. Section 15 to 32 create offences and provide for punishment thereof. Punishment is quite severe. For instance Section 21 says "whoever, in contravention of any provisions of this Act, or any rule or order made or condition of license granted there under manufactures, possesses, sells, purchases, transports, imports, inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees". Same punishment is provided under Section 23 for illegal import into India, export from India or transhipment of narcotic drugs and psychotropic substances. Section 35 provides for raising presumption of culpable mental state of the accused. Section 37 makes all offences under this Act as cognizable.
(15) Chapter V of the Ndps Act provides procedure for investigating the offences under the Ndps Act. Under Section 41(1) "A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter Iv, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter Iv has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed". Under Section 41(2) "Any such officer of gazetted rank of the departments of Central Excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer 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 personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter Iv or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter Iv has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place". Section 42(1) provides "(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 or of the Border Security Force 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 persona] knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter Iv has been committed or any document or other article which may furnish evidence of the commission of such offence 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 document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter Iv relating to such drug or substance: 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 Chapter Iv relating to such drug or substance; Provided that if such officer has reason to believe that a search warrant or authorisation 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".
(16) Section 43 empowers an officer authorised under Section 42 to seize and search in public place. Under Section 44 the provisions contained in Section 41, 42 and 43 shall apply in relation to the offences punishable under Chapter Iv and relating to coca plant, the opium poppy or cannabis plant and for this purpose references in those sections to narcotic drugs or psychotropic substances, shall be construed as including references to coca plant, the opium poppy and cannabis plant. Section 51 makes the provisions of the Code of Criminal Procedure applicable in so far as they are not in consistent with the provisions of this Act, to all warrants issued, arrests, searches and seizures made under this Act. Section 52 imposes a duty on the officer arresting a person under Sections 41, 42, 43 or 44 to inform him the grounds for such arrest. Every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 has to be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. Every person arrested or article seized under Sections 41(2), 42 43 or 44 is required to be forwarded without any unnecessary delay to the officer-in-charge of the nearest police station or the officer empowered under Section 53. The said officer is required to take such measures as may be necessary for the disposal of such person or article according to law (See Section 52(4). Section 55 imposes a duty on an officer-in-charge of a police station to take charge of and keep in safe custody, pending the orders of the Magistrate all article seized under this Act within the local area of that police station.
(17) Under Section 67 any officer referred to in Section 42 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 there under: (b) require any person to produce or deliver any document or things useful or relevant to the enquiry; and (c) examine any person acquainted with the facts and circumstances of the case.
(18) Section 53 of the Ndps Act empowers the Central Government to invest officers of certain departments with the powers of an officer-in- charge of a police Station. It reads :
"53. 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 or Border Security Force or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences 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-in-charge of a police station for the investigation of offences under this Act."
(19) In exercise of these powers. Ministry of Finance (Department of Revenue) Central Government by notification No. Soa 23(E) dated 14th November, 1985 has conferred powers of an officer-in-charge of police station for the investigation of offences under the Ndps Act on certain officers including officers of intelligence revenue.
(20) The question which requires determination is whether the expression "powers of an officer-in-charge of a police station for investigation of the offences under this Act" takes in its fold all the powers which are conferred on a police officer-in-charge of a police station, properly so called, under Chapter Xii of the Code of Criminal Procedure ?
(21) The word 'investigation' has not been defined under the Ndps Act. Section 2(xxix) of the Ndps Act, however, provides that "words and expressions used herein and not defined but defined in the Code of Criminal Procedure, 1973 (2 of 1974) have the meanings respectively assigned to them in that Code". Under Section 2(h) of the Code of Criminal Procedure " 'investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf". This is an inclusive definition and not exhaustive and as held by the Supreme Court in H.N. Rishbud and another v. State of Delhi, and State of Madhya Pradesh v. Mubarak Ali." 'investigation' consists generally of the following steps: (1) proceeding to the spot; (ii) ascertainment of the fact and the circumstance of the case; (iii) discovery and arrest of the suspected offender; (iv) collection of evidence relating to the commission of the offence which may consists of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places for seizure of things considered necessary for the investigation and to be produced at the trial; and (v) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173."
(22) Learned counsel for the petitioner submitted that the officers of Dri have been invested with powers of an officer-in-charge of a police station for investigation of the offences under the Ndps Act. The investigation included all the above mentioned steps and therefore they have all the powers of a police officer for investigation of an offence including the power to submit a report under Section 173 of the Code of Criminal Procedure. Consequently they fulfillled the test laid down by the Supreme Court in Ramesh Chand Mehta's case (supra) and were police officers within the meaning and scope of Section 25 of the Evidence Act.
(23) The term 'investigation' used in Section 53 of the Ndps Act, in our view, cannot be given such a wide interpretation as urged by learned counsel for the petitioner. The Ndps Act lays down its own procedure for investigating the offences under that Act. Officers invested with the powers under Section 41(2) are competent to arrest a person and search a building if they have reason to believe that any offence under the Act has been committed. They can authorise any officer sub-ordinate to them to arrest or search a building. Officers invested with the powers under Section 42 have powers of entry, search, seizure and arrest without warrant. They have powers of seizure and arrest in public places. Under Section 67, during the course of any enquiry in connection with the contravention of any provision of the Act they have power to call for information etc. These are very important steps of investigation which are specifically provided under the Ndps Act. Under Section 52 any person arrested and article seized under Sub-section (2) of Sections 41, 42, 43 and 44 is required to produce either before the officer-in-charge of the nearest police station or the officer empowered under Section 53. The officers empowered under Section 53 have been given powers of an officer-in-charge of the police station for investigation of the offences. There is nothing in the Act indicating that the officer invested with powers under Section 53 can exercise all the powers under Chapter Xii of the Code of Criminal Procedure. There is nothing in the Act to suggest that they were competent to file a report under Section 173 pf the Code of Criminal Procedure. Section 51 of the Ndps Act makes provisions of the Code of Criminal Procedure, 1973 applicable in so far as they are not inconsistent with the provisions of the Ndps Act, to all warrants issued and arrests, searches and seizures made under this Act. It does not say that all the provisions contained in Chapter Xii of the Code of Criminal Procedure would be applicable. There is no provision in the Ndps Act providing that an officer invested with powers under Section 53 would be deemed to be an officer-in-charge of the police station for the purpose of Section 156 of the Code of Criminal Procedure. In the circumstances it cannot be said that an officer invested with the powers under Section 53 of the Ndps Act is invested with all the powers of an officer-in-charge of a police station quo investigation of an offence including the power of submitting a report under Section 173, of the Code of Criminal Procedure. He is, therefore, not a police officer Within the test laid down by the Supreme Court in Ramesh Chand Mehta's case (supra).
(24) Section 21 of the Central Excises and Salt Act, 1944 reads as under :
"21(1). When any person is forwarded under Section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him; (2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer- in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognisable case; Provided that............"
In view of the provision of Sub'section(2) of Section 21 it was urged before the Supreme Court in Badaku Joti Syant v. State of Mysore that under Section 21(2) the Central Excise Officer has all the powers of an officer-in-charge of a police station under Chapter Xii of the Code of Criminal Procedure and, therefore, he must be deemed to be police officer within the meaning of these words in Section 25 of the Evidence Act. Repelling this contention the Supreme Court held :
"IT is true that Sub-section (2) confers on the Central Excise Officer under the Act the same powers as an officer-in-charge of a police station has when investigating a cognizable case; but this power is conferred for the purpose of Sub-section (1) which give power to a Central Excise Officer to whom an arrested person is forwarded to inquire into the charge against him Thus under Section 21 it is the duty of the Central Excise Officer to who man arrested person is forwarded to inquire into the charge against him. Further under proviso (a) to Sub-section(2)of Section 21 if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate. It does not however, appear that a Central Excise Officer under the Act has power to submit a chargesheet under Section 173 of the Cr.P.C. Under Section 190 of the Cr.P.C. a Magistrate can take cognizance of any offence either (a) upon receiving of a complaint of facts which constitute such offence, or (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. A police officer for purposes of Clause (b) above can in our opinion only be a police officer properly so-called as the scheme of the Code of Criminal Procedure shows and it seems, therefore, that a Central Excise Officer will have to make a complaint under Clause (a) above if he wants the Magistrate to take cognizance of an offence, for example under Section 9 of the Act. Thus though under Sub-section (2) of Section 21 the Central Excise Officer under the Act has powers of an officer- in-charge of a police station when investigating a cognisable case, that is for the purpose of his inquiry under Sub-section (1) of Section 21. Section 21 is in terms different from Section 78(3) of the Bihar and Orissa Excise Act, 1915 which came to be considered in Raja Ram Jaiswal's case and which provided in terms that 'for the purposes of Section 176 of the Cr.P.C. 1898, the area to which an excise officer empowered under Section 176 Sub-section (2) is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer-in-charge of such station". It cannot, therefore, be said that the provision in Section 21 is on par with the provision in Section 78(3) of the Bihar and Orissa Excise Act. All that Section 21 provides is that for the purpose of his enquiry, a Central Excise Officer shall have the powers of an officer-in-charge of a police station when investigating a cognisable case.. But even so it appears that these powers do not include the power to submit a charge sheet under Section 173 of the Cr.P.C. for unlike the Bihar and Orissa Excise Act, the Central Excise Officer is not deemed to be an officer-in-charge of a police station."
(25) This decision, in our view, fully applied to the present case. Here also under Section 52 the persons arrested by officers empowered under Sections 41 and 42 is required to be produced inter alia before an officer empowered under Section 53. The officer invested with powers under Section 53 has then to make investigation and take measures in accordance with law as provided under Section 52(4) of the Ndps Act. His power is to investigate for taking such measures as may be necessary for disposal according to law of that person. There is nothing in the Ndps Act to suggest that he can make a report under Section 173 of the Code of Criminal Procedure.
(26) Learned counsel for the petitioner contended that the offences under the Central Excise and Salt Act, 1944 were non-cognisable. The powers conferred on the Central Excise Officer were mainly for the purpose of checking evasion of payment of excise duty. He was not concerned with the detention and punishment of crimes committed by a person but was mainly interested in the collection of revenue and therefore the above decision. of the Supreme Court was not applicable to the present case.
(27) We do not agree with this submission. Section 21(2) of the Central Excise and Salt Act, 1944 conferred on the Central Excise Officer the same powers as the officer-in-charge of a police station has when investigating a cognizable offence. Therefore the fact that offences under the Central Excise and Salt Act were non-cognisable is of no consequence. The duty of the officers under the Ndps Act is, no doubt, detention and punishment of crimes relating to narcotic drugs and psychotropic substances. But one of the- main duty is also to prevent and combat the abuse of narcotic drugs. In any case the decision of the Supreme Court in Badaku Joti's case (supra) did not turn on these circumstances. It was based on the interpretation of Section 21(2) of the Central Excise and Salt Act, 1944 which conferred on the Central Excise Officers same powers as are conferred under Section 53 of the Ndps Act.
(28) Relying on Section 4(2) of the Code of Criminal Procedure,. learned counsel for the petitioner contended that the Ndps Act was silent. regarding the submission of report under Section 173 of the Code of Criminal Procedure, therefore, this vacancy was to be supplied by adopting the relevant provisions of the Code of Criminal Procedure which empowered the officer- in-charge of the police station to submit a report under Section 173 of the Code of Criminal Procedure.
(29) Section 4(2) of the Code of Criminal Procedure reads asunder :
"(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same visions, 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."
(30) Section 4(2) provides for offences under any other law which may be investigated, enquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure 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. In the absence of a specific provision made in the statute indicating that offences will have to be investigated, enquired into, tried and otherwise dealt with according to the statute the same will have to be investigated, enquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. In other words Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal courts of various designations. (See A.R. Antulay v. Ramdai Sriniwas Nayak and another).
(31) Chapter 5 of the Ndps Act provides procedure for investigating the offences under that Act. Section 41 provides for arrest and search, Section 42 and 43 provides for seizure and search. Section 67 provides for calling for information regarding all offences etc. The officers empowered under Section 53 had power of officer-in-charge of a police station for investigation. The Ndps Act, thus, provides for procedure for investigation and therefore the provision contained in Chapter Xii of the Criminal Procedure Code would not apply to investigation relating to offences under the Ndps Act except to the extent they have been made applicable under Section 51.
(32) In Union of India v. O. P. Gupta and others. Criminal Writ No. 116/84 and 104/84 decided on 19th July, 1985 by a Full Bench of this Court, Yogeshwar Dayal J. (as he then was) while examining Section 4(2) of the Code of Criminal Procedure observed as under :
"TO the extent the offence created under the other laws are concerned, if those other laws provide for detailed provisions of investigation, they would prevail if they are in any way inconsistent with the provisions of the Code. But to the extent the provisions of other laws in relation to investigation are silent, the provisions of the Code to the extent applicable can be resorted to. Arrest, detention for purposes of investigation, production before the Magistrate and/ or duty to apply for remand are all steps relating to investigation."
(33) According to those observations the provision of the Code of Criminal Procedure can be resorted to when the provisions of other laws in relation to investigation are silent. These observations, however, were made in different context. The Full Bench was examining the question. "Whether the Magistrate has no power to remand a person produced before him in accordance with Section 104 of the Customs Act." This is not the question here. Here we are examining the powers of officers invested with powers under Section 53 of the Ndps Act. It cannot be disputed that when there is no provision for filing a charge-sheet as contemplated under Chapter Xii of the Code of Criminal Procedure the officer concerned is competent to move the criminal court by filing a complaint. It is not the case where there was no remedy available because of the absence of a specific provision empowering the officers under the Ndps Act to file a charge-sheet. The remedy is available. A complaint can be filed. In any case the contention of learned counsel for the petitioner cannot be accepted in the presence of the decision of the Supreme Court in Badaku Joti's case (supra) which, in our opinion, is direct on the point.
(34) It is settled law that where the power is given to do a certain; thing in a certain way, that must be done in that way or not at all. However, nothing turns on this principle so far as the present case is concerned. There is no provision in the Ndps Act empowering the officer invested with powers under Section 53 of the Ndps Act, to file a charge-sheet. In the absence of said provisions such powers could not be inferred. In the circumstances the remedy is available to the officers under the Ndps Act to file a complaint. For filing a complaint, in our opinion no specific power was required. As observed by the Supreme Court in A.R. Antulay's case (supra) any one could set or put the criminal law in motion except where the statute indicating or creating an offence indicated to the contrary. The Ndps Act does not indicate to the contrary. Therefore, the officers under that Act could set the criminal law into motion by filing a complaint: -
(35) On behalf of the petitioner reliance has been placed on the decision of the Supreme Court in Raja Ram Jaiswal v. State of Bihar. That was a case under the Bibar and Orissa Excise Act, 1915 (2 of 1915). Sub-section (1) of Section 77 of that Act empowered the Collector or Customs to investigate without the order of a Magistrate any offence punishable under the Excise Act committed within the limits of his jurisdiction. Sub-section (2) of that section provided that any other Excise: Officer specially empowered in this behalf by the State Government in respect of all or any specified class of offences punishable under the Excise Act may,. without the order of a Magistrate investigate any such offence which a court having jurisdiction within the local area to which such officer is appointed would have power to inquire into or try under the aforesaid provisions. Under Section 78(3) of the Act an Excise Officer empowered under Section 77(2) of that Act for the purpose of Section 156 of the Code of Criminal Procedure shall be deemed to be an officer-in-charge of a police station with respect to the area to which his appointment as. an Excise Officer extends. After examining these provisions it was held by the Supreme Court that the Excise Officer empowered under Section 77(2) was a police officer within the: meaning of the term under Section 25 of the Indian Evidence Act, this decision, in our view, mainly turned on the provisions contained in Section 78(3) under which the Excise Officer was to be deemed to be an officer- in-charge of a police station for the purpose of Section 156 of the Code of Criminal Procedure. This decision was noted by the Supreme Court in Badaku Joti's case (supra) and was distinguished. This decision, therefore, is of no help to the petitioner.
(36) A learned single Judge of the Allahabad High Court (Lucknow Bench) in Mahesh v. Union of India & Anr., decided on may 6, 1986 held that the officer invested with powers under Section 53 of the Ndps Act was not a police officer so as to attract the provisions contained in Chapter Xii of the Code of Criminal Procedure. It was followed by a learned single Judge of Allahabad High Court in Teer Singh v. Stale, Crl. Misc. case No. 2085 (B) of 1986 decided on 4th February, 1987. In Collector of Customs v. The State of Gujarat, Misc. Cri. Application No. 787 of 1987 decided on 12th May, 1987, a learned single Judge of Gujarat High Court took the same view. In Alok Badridas Aggarwal v. B.M. Bhatt & Anr., Misc. Criminal Application No. 114/88 decided on 16th June, 1988 another learned single Judge of the Gujarat High Court held that the officers invested with powers under Section 53 of the Ndps Act could not be said to be officers-in-charge of a police station for all purposes even though they exercise many of the powers of a police officer conducting a investigation under the Code of Criminal Procedure and hence they could not file the charge-sheet after completing the enquiry and were required to file a complaint.
(37) For the for-going reasons we hold that the officers of the Dri, invested with powers under Section 53 of the Ndps Act, do. not possess all the attributes of an officer-in-charge of a police station conducting an investigation under Chapter Xii of the Code of Criminal Procedure. They were consequently, not police Steers within the meaning of the term used in Section 25 of the Evidence Act. A confession or incriminating statement made before them was no hit by the provisions contained in the said Section Reference is answered accordingly.
(38) Now the petitions would be placed before a learned single Judge for disposal in accordance with law.