New Delhi, October 29: Confessional statements made to officers under the Narcotics Drugs and Psychotropic Substances (NDPS) Act will not be admissible as evidence to convict a suspect,the Supreme Court has ruled, ending the scope for misuse of the wide powers given under the Act to extract confessions or frame suspects in drug-related crimes.

A three-judge bench, by a 2:1 majority, held that officers vested with the power to investigate offences under the Act are “police officers” and any confessional statement recorded by them will be barred by Section 25 of the Evidence Act.

This provision of the Evidence Act states: “No confession made to a police officer, shall be proved as against a person accused of any offence.”

The majority judgment by justices Rohinton F Nariman and Navin Sinha held: “any confessional statement made to them (officers under Section 53 of NDPS Act) would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act… A statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act,” the Hindustan Times reported.

Justice Indira Banerjee, the third member of the bench, dissented with the majority and held that such a confession given under NDPS Act will be sufficient to convict a suspect.

The question had fallen for consideration before the three-judge bench on a bunch of appeals referred to it by a two-judge bench in October 2013.

Under Section 53 of the Act, the Centre has the power to invest any officer of the Department of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the central government including paramilitary forces or armed forces, with the powers of an officer-in-charge of a police station for the investigation of offences under the NDPS Act.

The bench said, “The severer the punishment, the greater the care to be taken” in order to preserve safeguards against misuse. Noting that the NDPS Act is a penal law with punishments for small to commercial quantities of drugs ranging from one year to 20 years and fines of Rs 10,000 to Rs 2 lakh, the bench examined the questions referred to it in the backdrop of Article 20(3), which protects a person against self-incrimination and Article 21, which includes right to life, liberty and privacy.

“The interpretation of a statute like the NDPS Act must be in conformity and in tune with the spirit of the broad fundamental right not to incriminate oneself, and the right to privacy, as has been found in the recent judgments of this court,” the majority stated.

The bench noted the draconian provision in the Act – Section 30 where preparation to commit an offence is made an offence and Section 31A which provides for the death penalty for subsequent offence in specific cases. Further, if an accused conducts himself well in jail, he cannot have the benefit of remission or commutation as the Probation of Offenders Act, 1958 does not apply to those above 18 years who are convicted under the Act.

Although the central government argued that officers under the NDPS Act cannot be called police officers, the bench concluded that any officer who is invested with the power of investigation and who can prepare an investigation report essentially is a police officer as “when they prevent and detect crime, they are in a position to extort confessions, and thus are able to achieve their object through a shortcut method of extracting involuntary confessions,” noted the bench.

The court noted an anomaly that if a case of confiscation of drugs is investigated by the police of a state and the same offence is probed by an officer under NDPS Act, it cannot be expected that one investigation enjoys safeguards of a police investigation under Code of Criminal Procedure (CrPC) while the other is free of them.

“These anomalies are real and not imaginary, and if a statute is so read as to give rise to such anomalies, it would necessarily have to be struck down under Article 14 of the Constitution as being discriminatory and manifestly arbitrary,” concluded the bench.

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