Preliminary Analysis of Section 67 of NDPS Act

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Recently the registry of the SC issued the notice that, on 18th August, all the batch of criminal cases along with Topan Singh V State of Tamil Nadu will be listed for hearing before a bench presided by justice RF Nirman. The case of Topan Singh vs. State Of Tamil Nadu was pending since 2013. The matter further referred to the higher bench on 8th October 2013 by the division bench of the Supreme Court.

Topan Singh vs. State Of Tamil Nadu

The conflicting issue was:

  1. Whether the statement recorded under sec 67 of narcotic drug and psychotropic substances Act,1905 could be considered as the confessional statement?
  2. Whether the “Police officer” is authorized to investigate under this Act for Section 25 of Indian Evidence Act?

This research article discusses the preliminary analysis of Sec 67 of the NDPS Act. Finally, the supreme court has decided to look into the issues mentioned on the given date. Those two questions of law are pending before the Supreme Court for very long. 

However, Sec 53 of the NDPS Act empowers the authority to summon and examine any person (might be accused) acquainted with the facts or the circumstances of the case. During this inquiry period under this Act, the authority or the officer can also call or summon for information/ documents for the same.

Whereas the Act and the rule don’t give any specific guidelines or proper definition of the officer. Hence the question is, the statement made by the accused under Sec 67 of the NDPS Act to an empowered officer is admissible or not as a piece of evidence? The Act is also silent on the various question of law namely:

  1. Whether or not to expose the person with criminal charges.
  2. Statement amounting to a confession.

Because of these questions of law, it makes it imperative to analyze the constitutional ambit of the said provision. And Sec 161 of the CrPC is quite similar to the Sec 67 of the NDPS Act. Wherein the Sec 161 Cr.P.C empowers the police officer to summon and examine any person, including the accused acquainted with the facts and circumstances of the case. However, in the case, Nandini Satpathy v P.L. Dani held that as Sec 161 of Cr.P.C is underpinned by Article 20(3) of the constitution of India. The police officer can only ask the question which doesn’t tend to expose the person to criminal charges or penalties. Therefore, this judgment puts a limitation on the power of the police.

Several other cases are being heard on this matter with different perspectives. Wherein one of the landmark judgments of Pakala Narayan Swami, the privy council distinguished between the term admission and confession. The court clearly stated that any statement made under Sec 161 would be inadmissible regardless of its nature. This issue of admissibility was further dealt deeply in the State of UP v Deoman Upadhaya. The five-judge bench was constituted to determine whether Sec 162 of the Code and Sec 27 of Indian evidence act are related or not? The court observed that the statement amounting to confession before a police officer can be tainted. Hence it would not be admissible under Sec 25 and 26 of the Indian Evidence Act.

Whereas in the case Sarwan Singh v State of Punjab states that even the confession is being made before the magistrate, they are bound to comply with the requisite in the provision. And additionally, give 24 hours for reflection to express his intent of confession.

Conclusion

Whereas even after so many years and so many cases, these questions of law are still unaddressed. Neither the NDPS Act nor the rules provide the mandates. No procedure of confession or recording statement is stated. Who would be the empowered officer under Sec 67 to summon or examine any person including accused?

The ambiguity in the interpretation of the provision needs to be cleared. Finally, the supreme court has issued the notice to hear and decide the fundamental questions of law in all reference matters.


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