Notice under sec. 67 of ndps act by investigation officer for statement.
Section
67 in The Narcotic Drugs and Psychotropic Substances Act, 1985
67.
Power to call for information, etc.—Any officer referred to in section 42 who
is authorised 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 provisions of this Act,—
(a)
call for information from any person for the purpose of satisfying himself
whether there has been any contravention of the provisions of this Act or any
rule or order made thereunder;
(b)
require any person to produce or deliver any document or thing useful or
relevant to the enquiry;
(c)
examine any person acquainted with the facts and circumstances of the case.
Under
the caption “Evidentiary value of statement under section 67 of the Narcotic
Drugs and Psychotropic Substances, Act, 1985 (“NDPS Act”)”, the Court noted the
decisions of Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 and
Kanhaiyalal v. Union of India (2008) 4 SCC 668, as also certain other
judgments, most notably Abdul Rashid v. State of Bihar (2001) 9 SCC 578 and
Noor Aga v. State of Punjab (2008) 16 SCC 417, and thereafter came to the
conclusion that the NDPS Act, being a penal statute, is in contradistinction to
the Customs Act, 1962 and the Central Excise Act, 1944, whose dominant object
is
to protect the revenue of the State, and that therefore, judgments rendered in
the context of those Acts may not be apposite when considering the NDPS Act –
see paragraph 33. After then considering a number of other judgments, the
referral order states that a re-look into the ratio of Raj Kumar Karwal (supra)
and Kanhaiyalal (supra) would be necessary, and has referred the matter to a
larger Bench thus:
“41.
For the aforesaid reasons, we are of the view that the matter needs to be
referred to a larger Bench for reconsideration of the issue as to whether the
officer investigating the matter under the NDPS Act would qualify as police
officer or not.
42. 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.
FUNDAMENTAL
RIGHTS AND THE NDPS ACT
14.
The first most important constitutional protection provided in the fundamental
rights chapter so far as these cases are concerned is provided by Article
20(3), which is the well-known right against self- incrimination. Article 20(3)
reads as follows:
“(3) No
person accused of any offence shall be compelled to be a witness against
himself.”
15. In an early judgment of
this Court, M.P. Sharma and Ors. v. Satish Chandra 1954 SCR 1077, an
eight-Judge Bench of this Court set out Article 20(3), and then went into the
historical origin of this Article in English law. In an important passage, the
Court held:
“In view of the above
background, there is no inherent reason to construe the ambit of this
fundamental right as comprising a very wide range. Nor would it be legitimate
to confine it to the barely literal meaning of the words used, since it is a
recognised doctrine that when appropriate a constitutional provision has to be
liberally construed, so as to advance the intendment thereof and
to prevent its circumvention. Analysing the terms in which this right has been
declared in our Constitution, it may be said to consist of the following
components. (1) It is a right pertaining to a person “accused of an offence”;
(2) It is a protection against “compulsion to be a witness”; and (3) It is a
protection against such compulsion resulting in his giving evidence “against
himself”.” (at page 1086) xxx xxx xxx Broadly stated the guarantee in Article
20(3) is against “testimonial compulsion”. It is suggested that this is
confined to the oral evidence of a person standing his trial for an offence
when called to the witness-stand. We can see no reason to confine the content
of the constitutional guarantee to this barely literal import. So to limit it
would be to rob the guarantee of its substantial purpose and to miss the
substance for the sound as stated in certain American decisions. The phrase
used in Article 20(3) is “to be a witness”. A person can “be a witness” not
merely by giving oral evidence but also by producing documents or making
intelligible gestures as in the case of a dumb witness (See Section 119 of the
Evidence Act) or the like.
“To be a witness” is nothing
more than “to furnish evidence” and such evidence can be furnished through the
lips or by production of a thing or of a document or in other modes. So far as
production of documents is concerned, no doubt Section 139 of the Evidence Act
says that a person producing a document on summons is not a witness. But that
section is meant to regulate the right of cross-examination. It is not a guide
to the connotation of the word “witness”, which must be understood in its
natural sense i.e. as referring to a person who furnishes evidence. Indeed,
every positive volitional act, which furnishes evidence is testimony, and
testimonial compulsion connotes coercion which procures the positive volitional
evidentiary acts of the person, as opposed to the negative attitude of silence
or submission on his part. Nor is there any reason to think that the protection
in respect of the evidence so procured is confined to what transpires at the
trial in the court room. The phrase used in Article 20(3) is “to be a witness”
and not to “appear as a witness”: It follows that the protection
afforded to an accused in so far as it is related, to the phrase “to be a
witness” is not merely in respect of testimonial compulsion in the court room
but may well extend to compelled testimony previously obtained from him. It is
available therefore to a person against whom a formal accusation relating to
the commission of an offence has been levelled which in the normal course may
result in prosecution. Whether it is available to other persons in other
situations does not call for decision in this case. Considered in this light,
the guarantee under Article 20(3) would be available in the present cases to
these petitioners against whom a first information report has been recorded as
accused therein. It would extend to any compulsory process for production of
evidentiary documents which are reasonably likely to support a prosecution
against them.
An eleven-Judge Bench was then
constituted in State of Bombay v. Kathi Kalu Oghad and Ors. (1963) 2 SCR 10, as
certain doubts were raised on some of the propositions contained in the
eight-Judge Bench decision of M.P. Sharma (supra). In this case, there were
three appeals before the Court, one of which involved proof of handwritten
evidence, another of which involved comparison of handwriting under section 73
of the Evidence Act, and the third of which involved section 27 of the Evidence
Act. After hearing arguments on both sides, the Court first concluded that M.P.
Sharma (supra) was correctly decided insofar as it stated that the guarantee
under Article 20(3) extended to testimony by a witness given in or out of
courts, which included statements which incriminated the maker. However, the
Court went on to state that “furnishing evidence” would exclude
thumb-impressions or writing specimens, for the reason that the taking of impressions
of parts of the body often becomes necessary for the investigation of a crime
(see page 29). Incriminating information must therefore include statements
based on personal knowledge. The Court then went on to consider whether section
27 of the Evidence Act would fall foul of Article 20(3), having already been
upheld when a constitutional challenge under Article 14 had been repelled by
the Court in State of U.P. v. Deoman Upadhyaya (1961) 1 SCR 14. The Court held
that if self-incriminatory information is given under compulsion, then the
provisions of section 27
of the Evidence Act would not apply so as to allow the prosecution to place
reliance on the object recovered as a result of the statement made (see pages
33-34). In the result, the Court held:
“(1) An accused person cannot
be said to have been compelled to be a witness against himself simply because
he made a statement while in police custody, without anything more. In other
words, the mere fact of being in police custody at the time when the statement
in question was made would not, by itself, as a proposition of law, lend itself
to the inference that the accused was compelled to make the statement, though
that fact, in conjunction with other circumstances disclosed in evidence in a
particular case, would be a relevant consideration in an enquiry whether or not
the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an
accused person by a police officer, resulting in a voluntary statement, which
may ultimately turn out to be incriminatory, is not “compulsion”.
(3) “To be a witness” is not
equivalent to “furnishing evidence” in its widest significance; that is to say,
as including not merely making of oral or written statements but also
production of documents or giving materials which may be relevant at a trial to
determine the guilt or innocence of the accused.
(4) Giving thumb impressions or
impressions of foot or palm or fingers or specimen writings or showing parts of
the body by way of identification are not included in the expression “to be a
witness”.
(5) “To be a witness” means
imparting knowledge in respect of relevant facts by an oral statement or a
statement in writing, made or given in court or otherwise.
(6) “To be a witness” in its
ordinary grammatical sense means giving oral testimony in court. Case law has
gone
beyond this strict literal interpretation of the expression which may now
bear a wider meaning, namely, bearing testimony in court or out of court by a
person accused of an offence, orally or in writing.
(7) To bring the statement in
question within the prohibition of Article 20(3), the person accused must have
stood in the character of an accused person at the time he made the statement.
It is not enough that he should become an accused, any time after the statement
has been made.” (at pages 36-37
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.152 OF
2013
Tofan Singh vs The State Of Tamil Nadu
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