TOFAN SINGH v. STATE OF TAMIL NADU

(DISSENTING)

1.1 The scheme of the NDPS Act makes it patently clear that it essentially makes provisions, as are deemed necessary, for preventing and combating the abuse of and illicit trade and trafficking in narcotic drugs and psychotropic substances. [Para 43][766-B]

1.2 However, despite an elaborate statutory framework, the NDPS Act is not being effectively implemented. Illicit business in and consumption of narcotic drugs and psychotropic substances is endangering the social and economic stability of India and the developing countries, adversely affecting the health of the people, causing malnutrition related ailments, causing a spurt in crimes and increase in the spread of communicable diseases such as AIDS (Acquired Immuno Deficiency Syndrome), caused by sharing of needles for administration of narcotic drugs. The lure of money, vulnerability of adolescents, poverty and other facets of socio-economic deprivations aggravate this menace and provide sustenance to the racketeers involved in this flourishing illicit business. [Paras 47 and 48][768-A-D]

1.3 Socio-economic crimes i.e. “white collar crimes” affect the health and material welfare of the community as a whole, as against that of an individual victim, and are, by and large, A B C D E F G H 600 SUPREME COURT REPORTS [2020] 12 S.C.R. A B C D E F G H committed not by disadvantaged low class people, but by very affluent and immensely powerful people, who often exploit the less advantaged, to execute their nefarious designs. Such crimes have to be dealt with firmly and cannot be equated with other crimes, committed by individual offenders against individual victims. [Para 50][769-G-H; 770-A] Article “Narcotic Aggression and Operation Counter Attack” by the Mainstream dated March 7, 1992; The Law Commission of India, in its 155th Report on Narcotic Drugs and Psychotropic Substances Act, 1985 – referred to.

2.1 It is a well settled principle of criminal jurisprudence that an accused is presumed innocent, unless proved guilty beyond reasonable doubt, except where the statute, on existence of certain circumstances, casts a reverse burden on the accused, to dispel the presumption of guilt, as in the case of Section 304B of the Penal Code and many other statutes, particularly those dealing with socio economic offences. The Legislature may, in public interest, create an offence of strict liability where mens rea is not necessary. There are presumptive provision in the NDPS Act, such as Sections 35, 54 and 66. Under Section 54 of the NDPS Act presumption of commission of an offence may, inter alia, be drawn from the possession of any narcotic drug or psychotropic substance, or any apparatus for manufacture or preparation thereof. The presumption is rebuttable. [Para 52][770-C-E]

2.2. The punishments prescribed for many of the offences under the NDPS Act are very severe. When a statute has drastic penal provisions, the authorities investigating the crime under such law, have a greater duty of care, and the investigation must not only be thorough, but also of a very high standard. [Para 53][770-F; 771-B]

2.3 There are inbuilt safeguards in the NDPS Act to protect a person accused of an offence under the said Act, from unnecessary harassment, or malicious or wrongful prosecution. Section 58 provides for punishment of any person, authorized under Section 42 or 43 or 44 for vexatious entry, search, seizure, or arrest. [Para 54][771-C-D] TOFAN SINGH v. STATE OF TAMIL NADU 601

2.4 The condition precedent for exercise of power under Sections 41(2), 42(1), 43 or 44 is “reason to believe” and not just reason to “suspect” that the circumstances specified in the aforesaid provisions for action thereunder exist. The use of the words “reason to believe” in Sections 41, 42, 43 and 48 is in contradistinction with use of the phrase “Reason to Suspect”, in Section 49 of the NDPS Act. [Para 59][773-D-E] A. S. Krishnan and Ors. v. State of Kerala (2004) 11 SCC 576: [2004] 3 SCR 44; Income Tax Officer, I Ward, District VI, Calcutta and Ors. v. Lakhmani Mewal Das (1976) 3 SCC 757: [1976] 3 SCR 956 – relied on.

2.5 The NDPS Act is a complete code. The NDPS Act specifically makes some provisions of the Cr.P.C applicable to proceedings under the NDPS Act. The Act is very specific on which of the provisions of the Cr.P.C. are to apply to proceedings under the NDPS Act. [Para 68][775-G-H]

2.6 Section 5 specifically provides that nothing in the Cr.P.C shall, in the absence of a specific provision to the contrary, affect any special law in force or any special jurisdiction or power conferred by any other law. The NDPS Act being a special enactment, nothing in the Cr.P.C can affect any investigation or inquiry under the NDPS Act, in the absence of any provision to the contrary in the NDPS Act. [Para 73][779-D-E]

2.7 Section 2(xxix) of the NDPS Act does not make the provisions of the Cr.P.C. applicable to any investigation or enquiry under the NDPS Act. The said Section only provides that words and expressions used in the NDPS Act, and not defined, but defined in the Cr.P.C. have the meanings assigned in the Cr.P.C., unless the context otherwise requires. [Para 74][779-E]

2.8 Section 53 enables the Central Government or the State Government, by notification in the Official Gazette, to invest any officer of the Departments mentioned in the said Section, or any other Department of the Government, with the powers of an Officer in Charge of a Police Station for the investigation of offences under the said Act. If the provisions of the Cr.P.C were A B C D E F G H 602 SUPREME COURT REPORTS [2020] 12 S.C.R. to apply to investigations under the NDPS Act, it would not have been necessary to invest any officer under the NDPS Act with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act, by notification in the Official Gazette. The provisions of Section 50(5) and 51 of the NDPS Act would also not have been necessary. [Paras 76 and 77][780-B-D]

2.9 There does not appear to be any bar in Section 53 or anywhere else in the NDPS Act, to officers empowered under Sections 41(2) or 42, also being invested under Section 53, with the powers of an Officer in Charge of a Police Station for investigation of offences under Section 53 of the NDPS Act. [Para 78][780-E]

2.10 There does not appear to be any provision in Chapter V or elsewhere in the NDPS Act, which can reasonably be construed to render an officer under Section, 41(2) or 42(1) of the NDPS Act ‘functus officio’ once the entry, search, seizure or arrest has been made. [Para 79][780-G]

2.11 Section 53A of the NDPS Act is ex facie contradictory to Section 162 of the Cr.P.C, which provides that no statement made to a police officer, in course of an investigation under Chapter XII of the Cr.P.C shall, if reduced to writing, be signed by the person making it, or used for any purpose at any inquiry or trial in respect of the offences under investigation, except inter alia to confront him if he gives evidence as a witness. Section 53A covers any statement made and signed by any person, before any officer empowered under Section 53 for the investigation of offences, during the course of any proceedings by such officer, under the NDPS Act, be it an inquiry or investigation. This provision makes it abundantly clear that the principles embodied in Sections 161/162 of the Cr.P.C have no application to any inquiry or other proceeding under the NDPS Act, which would include an investigation. [Paras 81 and 82][781-F-H; 782-AB] State of Delhi v. Shri Ram Lohia AIR 1960 SC 490; George v. State of Kerala and Anr. (1998) 4 SCC 605 : A B C D E F G H TOFAN SINGH v. STATE OF TAMIL NADU 603 [1998] 2 SCR 303 ; Munshi Prasad and Ors. v. State of Bihar (2002) 1 SCC 351 : [2001] 4 Suppl. SCR 25 – held inapplicable.

2.12 The NDPS Act, being a special statute, and in any case a later Central Act, the provisions of the NDPS Act would prevail, in case of any inconsistency between the NDPS Act and the Evidence Act. [Para 85][782-D-E]

2.13 The Evidence Act would however apply to a trial under the NDPS Act in other respects, unless a contrary intention appears from any specific provision of the NDPS Act. The previous statement of a witness, even if admissible in evidence cannot be used against the w itness unless the witness is confronted with the previous statement and given an opportunity to explain. However, certain documents not otherwise admissible under the Evidence Act, unless proved by evidence, may be admissible under Section 52A(4) of the NDPS Act, subject to the fulfilment of the conditions of that section. [Para 86][782-G; 783- A] Murli and Anr. v. State of Rajasthan (2009) 9 SCC 417: [2009] 13 SCR 378 – referred to.

2.14 Legislature has in its wisdom used the expression “investigation of the offence” in Section 53, and the term “inquiry” in Section 67. Even though in common parlance “inquiry” and “investigation” are used interchangeably, “investigation” in Section 53 and “inquiry” in Section 67 cannot be construed to mean the same. When different words are used in the same statute, there is a presumption that they are not used in the same sense. A construction deriving support from differing phraseology in different sections of a statute, may be negatived if it leads to unreasonable or irrational results. Accordingly Section 53A refers to a statement before any officer empowered under Section 53 for the investigation of offences during the course of any inquiry or proceeding by such officer. [Paras 90 - 93][784-G-H; 785-C- E] T.A. Krishnaswamy v. State of Madras AIR 1966 SC 1022 : [1966] SCR 31 – relied on. A B C D E F G H 604 SUPREME COURT REPORTS [2020] 12 S.C.R. Kanhaiyalal Vishindas Gidwani v. Arun Dattatreya Mehta (2001) 1 SCC 78 – referred to.

2.15 The NDPS Act does not define the expression “investigation” or the expression “inquiry”. However, Section 2(xxix) of the NDPS Act provides that the words and expressions used in the Act and not defined but defined in the Code of Criminal Procedure, 1973 have the meanings respectively assigned to them in that Code. The definition of the terms ‘inquiry’ and ‘investigation’ as contained in Sections 2(g) and 2(h) of the Cr.P.C. [Paras 94 and 95][785-E-F]

2.16 The meaning of a word or expression used in a statute can be construed and understood as per its definition, unless the “context otherwise requires”. The definition of inquiry in Section 2(g) of the Cr.P.C. does not help to interpret the word inquiry in Section 67 of the NDPS Act or in any other provision of Chapter V thereof, since an inquiry under Chapter V of the NDPS Act is not by any Magistrate or Court. It is well settled that a word not specifically defined in a statute may be interpreted as per its ordinary meaning, which may be ascertained by reference to a dictionary. As per the Concise Oxford English Dictionary (Eleventh Edition) the word investigate means ‘carry out a systematic or formal enquiry into an incident or allegation as to establish the truth’. Investigation, is the act of investigating. The word “enquire” is, as per the same dictionary, to ask for information. It also means “investigate”. Enquiry is the act of asking for information. It is an official investigation. Words and phrases in a statute have to be construed in the context in which they have been used. The statute has to be read as a whole. [Paras 96 and 97][786-A-D] Concise Oxford English Dictionary (Eleventh Edition) – referred to.

2.17 Having regard to the meaning of the expressions investigate/investigation and enquire/enquiry given in the Oxford Dictionary, the use of the expressions in Central Excise Act, 1944, Customs Act, 1962, Railway Property (Unlawful Possession) Act, 1966 and Cr. P.C. and having regard to the language and tenor of A B C D E F G H TOFAN SINGH v. STATE OF TAMIL NADU 605 Sections 53, 53A, and Section 67 of the NDPS Act, the expression “inquiry” may reasonably be construed as a generic expression, which could include the investigation of an offence. An inquiry as contemplated in Section 67 is the collection of information generally, to find out if there has been any contravention of the NDPS Act, whereas investigation is the probing of an offence under the NDPS Act and collection of materials to find out the truth of the case sought to be made out against an accused offender. However investigation may follow an enquiry or be part of an enquiry. This is evident from a reading of the NDPS Act as a whole. [Para 100][787-B-D]

2.18 An officer empowered under Section 53 with the powers of an Officer in Charge of a Police Station for the investigation of an offence, also has the power to make an inquiry. This is clear from the language used in Section 53A(1) of the NDPS Act. The officer empowered under Section 53, with the power of an Officer in Charge of a Police Station, can obviously make an inquiry within the meaning of Section 67 to find out whether there has been any contravention of the NDPS Act. A statement made before such an officer in course of any inquiry or other proceeding, which is taken down in writing and signed by the person making it, may in certain circumstances, be relevant for the purpose of proving, in any prosecution for an offence under the NDPS Act, the truth of the facts it contains. [Para 102][787- F-H; 788-A]

2.19 The power of an officer to investigate is not derived from Section 53. It is an enabling provision, which empowers the Central/State Government to invest an officer with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act. The power to invest an officer with the powers of an Officer in Charge of a Police Station flows from Section 53. The authority to investigate into an offence is implicit in the wider power to make an inquiry in connection with the contravention of any provision of the NDPS Act. [Para 103][788-B-C]

2.20 An enquiry may be carried out by an officer referred to in Section 42 of the NDPS Act, if empowered in this behalf. A B C D E F G H 606 SUPREME COURT REPORTS [2020] 12 S.C.R. A B C D E F G H This is clear from Section 67. The same officer can also investigate an offence under the NDPS Act, if he is also invested under Section 53, with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act. The power of an authorized officer referred to in Section 42, to make an inquiry is not derived from Section 67. Section 67 empowers an authorized officer, referred to in Section 42, to do the following acts during the course of an enquiry:

(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.

[Paras 104-106][788- D-E; F-H]

2.21 Investigation of an offence under the NDPS Act, is a part of an inquiry under Chapter V of the said Act. Investigation of an offence under the NDPS Act can be carried out by the same officer empowered under Section 42, who triggered the proceedings under Chapter V of the NDPS Act and carried out search, seizure and/or arrest, if that officer is also invested under Section 53 of the NDPS Act, with the powers of an Officer in Charge of a Police Station, for the purpose of investigation. [Para 107][789-A-B] Mukesh Singh v. State (Narcotic Branch of Delhi) (2020) SCC Online SC 700 – followed.

2.22 The language and tenor of Section 67 or Sections 41/ 42 does not support the contention that an inquiry can only be made by an officer referred to in Section 42, who is duly authorized, before exercise of the powers of entry, search, seizure or arrest, or at the stage of entry, search, seizure and arrest, but not afterwards. The exercise of power under Sections 41/42 of the NDPS Act does not necessarily have to be preceded by an inquiry. If an inquiry were to be restricted to the stage prior to the exercise of the power of entry, search, seizure and arrest or to the stage of making an entry, search, seizure or arrest, the NDPS Act would have specifically provided so. There is no such provision, either express or implied. It is not permissible to read TOFAN SINGH v. STATE OF TAMIL NADU 607 into Sections 41, 42 etc the words “after an inquiry” which do not exist in those provisions. Nor is it permissible to read the words “before or at the time of entry, search, seizure or arrest” after the words “during the course of any enquiry” in Section 67. [Para 110][789-G-H; 790-A-C]

2.23 The power conferred by Section 67 on an officer referred to in Section 42, duly authorised by the Central/State Government in this behalf, to call for information, require production of any document or thing or to examine any person, etc. is exercisable in course of any inquiry. The power could be exercised at any stage of the enquiry, before a complaint is filed. The powers can be exercised prior to or after exercise of powers under Sections 41/42 and would include the stage of investigation of an offence by an officer referred to in Section 42, if he is also invested with powers under Section 50 of the NDPS Act. [Para 111][790-C-D]

2.24. An officer referred to in Section 42 of the NDPS Act, if not invested with powers under Section 53 of the said Act, derives the power to call for information, require production of documents and things and to examine persons from Section 67 of the NDPS Act. The powers of investigation of an Officer in Charge of a Police Station include such powers. An officer invested with powers under Section 53 can also make an enquiry. This is clear from the use of the words “A statement made and signed by a person before any officer empowered under Section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant...” in Section 53A(1). The benefit of Section 53A(1) would not be available in the case of a similar statement made before an officer empowered under Section 42, but not under Section 53 of the NDPS Act. [Para 112][790-E-G]

2.25 If, after an inquiry or investigation, a complaint is filed, and the Special Court takes cognizance of the offence, any statements, documents or other things obtained in the inquiry/ investigation may be tendered and proved by the prosecution in the trial against the offender unless the statement and/or document and/or thing has been obtained by any promise, inducement, coercion, threat, or intimidation. The question of A B C D E F G H 608 SUPREME COURT REPORTS [2020] 12 S.C.R. whether any statement has been obtained by promise, coercion, threat etc. and/or whether any particular officer, is authorized under Section 42 or invested with powers under Section 53 are matters of trial. The Prosecution has to establish the charges against the offender, in accordance with law, at the trial. [Para 113][790-G-H; 791-A]

2.26 The provisions of the Cr.P.C. only apply to all warrants issued and searches and seizures made under the NDPS Act, in so far as they are not inconsistent with the provisions of the NDPS Act, as provided in Section 51 of the NDPS Act and to the search of a person, without complying with the requirement to take the person to be searched, to the nearest Gazetted Officer or Magistrate, as provided in Section 50(5) of the NDPS Act. Of course, the principles of Section 163 of the Cr.P.C. are implicit in the provisions of the NDPS Act relating to inquiry and investigation though the said Section may not apply to such inquiry or investigation. This is because the bar of Article 20(3) of the Constitution of India has to be read into every statute in spirit and substance. There can be no question of obtaining any statement by any inducement, promise or threat. [Para 117][800- H; 801-A-B]

2.27 The NDPS Act is a complete code. A comparison of the various provisions of Chapter XII of the Cr.P.C with those of Chapter V of the NDPS Act also makes it clear that the provisions in Chapter V of the NDPS Act are independent of, and not controlled by the provisions of the Cr.P.C except as provided in Sections 50(5) and 51 of the NDPS Act. There are differences between the procedure of inquiry/investigation under Chapter V of the NDPS Act and the procedure of investigation and/or enquiry under the Cr.P.C. [Para 118][801-C-D]

2.28 Section 36A(1)(d) of the NDPS Act provides that

a Special Court may, upon perusal of police report of the facts constituting an offence under the NDPS Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence, without the accused being committed to it for trial

. Section 36A (1)(d) is similar to Section 190 of the Cr.P.C. A A B C D E F G H TOFAN SINGH v. STATE OF TAMIL NADU 609 complaint, as defined in Section 2(d) of the Cr.P.C., means any allegation made to a Magistrate orally or in writing, to enable the Magistrate to take action under the Cr.P.C. A complaint need not be on a Police Report. However, as per the Explanation to Section 2(d), a report of a police officer, which discloses a cognizable offence is to be deemed to be a complaint and the police officer who made the complaint, shall be deemed to be the complainant. [Paras 120 and 121][803-A-D]

2.29 Section 36A(1)(d) enables the police to file a report, before the Special Court, of facts constituting an offence under the NDPS Act, which, as per the definition of police report in Section 2(d) of the Cr.P.C., means a report forwarded under Section 173(2) of the Cr.P.C. Such a police report is deemed to be a complaint. Such police report can be filed after an investigation under Chapter XII of the Cr.P.C. There is no provision in the NDPS Act, which makes it incumbent upon the concerned officers who make any inquiry/investigation under the NDPS Act, to prepare or file any report. [Para 124][803-F-H]

2.30 If the police investigate any offence under the NDPS Act and submit a report before the Special Court, all the relevant provisions of the Cr.P.C. would have to be complied with, including in particular Sections 161, 162, 163, 164 and 173. A statement before the police can neither be signed nor relied upon for any purpose in a Court of law, except for the purpose specified in the said section, that is, inter alia to confront the person making the statement in cross examination in the trial. [Para 125][804- A-B]

2.31 The Legislature has in its wisdom differentiated between a police report, which is deemed to be a complaint, and a complaint made by an officer of the Central or State Government, authorized in this behalf. It is not for this Court to question the wisdom of the Legislature. The fact that the Special Court may take cognizance of an offence, upon a complaint made by an officer of the Central or State Government, authorized in this behalf, and not a report, as required in case of the police, also shows that an inquiry or investigation under the NDPS Act is not to be treated in the same way, as a police investigation into an offence. [Para 126][804-C-D] A B C D E F G H 610 SUPREME COURT REPORTS [2020] 12 S.C.R.

2.32 The expression “police” is ordinarily understood to mean that executive civil force of the State, entrusted with the duty of maintenance of public order, and also the prevention and detection of crime. The expression “police” or “police officer” is not defined either in the Evidence Act 1872 or in the Cr.P.C. Police officers are governed inter alia by the Police Act 1861, enacted to make the police an effective instrument for the prevention and detection of crime. [Paras 128 and 129][804-F- H]

2.33 The police officers have enormous powers. The powers of a police officer are far greater than those of an officer under the NDPS Act invested with the powers of an Officer in Charge of a Police Station for the limited purpose of investigation of an offence under the NDPS Act. The extensive powers of the police, of investigation of all kinds of offences, powers to maintain law and order, remove obstruction and even arrest without warrant on mere suspicion, give room to police officers to harass a person accused or even suspected of committing an offence in a myriad of ways. The police are, therefore, in a dominating position to be able to elicit statements by intimidation, by coercion, or by threats either direct or veiled. The powers of NDPS officers being restricted to prevention and detection of crimes under the NDPS Act and no other crime, they do not have the kind of scope that the police have, to exert pressure to extract tailored statements. [Para 139][808-F-H; 809-A]

2.34 The provisions of the Cr.P.C do not apply to any inquiry or investigation or other proceeding under the NDPS Act, except to the extent expressly provided by the NDPS Act, in view of Section 4(2) read with Section 5 of the Cr.P.C. [Para 140][809-A- B]

2.35 Officers under the NDPS Act, invested under Section 53 with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act, do not exercise all the powers of police officers. They do not have the power to file a police report under Section 173 Cr.P.C which might be deemed a complaint. There is no provision in the NDPS Act which requires any officer investigating an offence A B C D E F G H TOFAN SINGH v. STATE OF TAMIL NADU 611 under the said Act or otherwise making an inquiry under the said Act to file a report. [Para 143][809-D-F] A

2.36. Officers under the NDPS Act not being police officers, Sections 161/162 of the Cr.P.C have no application to any statement made before any officer under the NDPS Act, in the course of any inquiry or other proceedings under the NDPS Act. [Para 144][809-F-G]

2.37 In any case, Section 53A is clearly contrary to and thus overrides Section 162 of the Cr.P.C. While Section 162(1) of the Cr.P.C. provides that no statement made by any person to a police officer, when reduced to writing shall be signed by the person making it, or used for any purpose, save as provided in the proviso to the said section, that is, to confront the person making the statement, if he gives evidence as a witness, Section 53A(1) provides that

a statement made and signed by a person before any officer empowered under Section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under this Act

in certain circumstances specified in the said section. [Para 145][809-G-H; 810-A-B]

2.38 The statements made in any inquiry or investigation may be recorded in writing and even signed by the person making it. In the absence of any provision similar to Section 162, in the NDPS Act, a statement made before an officer under the NDPS Act in the course of any inquiry, investigation or other proceedings, may be tendered in evidence and proved in a trial for prosecution of an offence under the NDPS Act in accordance with law. A statement confessional in nature is in the genre of extra judicial confessions. [Para 146][810-B-C]

3.1 A confession made by an accused person is irrelevant in a criminal proceeding, if it appears to the Court that the confessions may have been elicited by any inducement, threat or promise from a person in authority and sufficient, in the opinion of the Court, to give the accused person reasonable grounds, for supposing that by making the confession, he would gain any advantage or avoid any disadvantage in respect of proceedings against him. [Para 148][810-F-G] B C D E F G H 612 SUPREME COURT REPORTS [2020] 12 S.C.R. A B C D E F G H