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                                           [REPORTABLE] IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 152 OF 2013

TOFAN SINGH       ….APPELLANT

VERSUS

STATE OF TAMIL NADU                  ….RESPONDENT

J U D G M E N T

A.K. Sikri, J

1. The appellant herein, Tofan Singh, was listed as Accused No. 3 in the  

trial for the offences under Section 8(c) r/w Section 21 (c) of the Narcotic  

Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred  

as the NDPS Act)  as  well  as  for  the offences under  Section 8(c)  r/w  

Section 29 of the NDPS Act. This trial, conducted by the Special Judge,  

Additional  Special  Court,  under  NDPS Act,  Chennai,  resulted  in  the  

conviction of the appellant holding him guilty of the offences under the  

aforesaid provisions of the Act. As a consequence of the said judgment  

dated 18.12.2009 convicting him under the provisions of the NDPS Act,  

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the learned Special Judge sentenced the appellant to undergo 10 years  

rigorous  imprisonment  and  to  pay  a  fine  of  Rs.  one  lakh.  In  default  

whereof,  it  was  ordered  that  the  appellant  would  undergo  rigorous  

imprisonment for a further period of one year. Identical sentences were  

imposed for the offences under Section 8 (c) read with Section 21 & 29  

of the NDPS Act, 1985 with the direction that both the sentences had to  

be undergone by the appellant concurrently.  

2. Appeal  filed  by the appellant  against  the  order  of  the  Special  Judge,  

Addl. Special Court, has been dismissed by the High Court of Judicature  

at  Madras  vide  judgment  dated  18.6.2012  thereby  maintaining  the  

conviction as well as the sentence awarded by the Special Judge, Addl.  

Special Court under NDPS Act, Chennai. Dissatisfied and undeterred by  

the judgments of the Courts below, the appellant preferred the Special  

Leave Petition in which the leave was granted on 18.1.2013. However, at  

the same time, bail application preferred by the appellant was rejected  

and appeal was posted for hearing. This is how the present appeal arises  

against  the impugned judgment dated 18.6.2012 of the High Court  of  

Judicature at Madras.

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3. The allegations against the appellant (alongwith five others out of whom  

two are absconding) were that 5.250 Kgs of heroin was seized from these  

accused persons which they were carrying and attempting to export out  

of India. As per the complaint filed by the Intelligence Officer, NCB,  

Chennai in this behalf, the prosecution case is stated, in a summary form,  

as below:-

4. On 23.10.2004, the Intelligence Officer, NCB, South Zone Unit, Mr.  

L.S.  Aruldoss  (PW-7),  received  information  at  about  9.00  p.m.  that  one  

Prem @ Kannan  @ Sudeshwaran  resident  of  Nanganallur,  Chennai  was  

procuring Narcotic Drugs from Guddu Singh resident of Rajasthan with the  

assistance of one Bapulal resident of Pattalam, Chennai,  for trafficking it  

from Chennai  to  Srilanka  and  that  they  had  made  arrangements  for  the  

supply of 5 Kgs. of heroin through his two persons, who were identified to  

Bapulal by Guddusingh and those two persons were arriving at Chennai on  

the next day by Jaipur Express. It was further reported that the said Bapulal  

and Kannan had planned to leave at 10.00 p.m. on 23.10.2004 to Nellore,  

Andhra Pradesh, in a white Ambassador Car bearing Registration No.  TN-

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01-K0923 and  on  reaching  Chennai,  Prem  @  Kannan  @  Sudeshwaran  

would receive the heroin and smuggle it out to Srilanka.  

5. After  receiving  the  information,  Mr.  L.S.  Aruldoss,  the  

Intelligence Officer (PW-7) discussed the matter with other officers namely  

Mr. Gunabalan (PW-6) and Mr. A. Sendhil Murugan (PW-10) resulting into  

the orders by Mr. Gunabalan (PW-6) to proceed with the case. Accordingly,  

on 24.10.2004, at about 9.00 a.m., P.W.6, P.W.7, and P.W.10 and two other  

staff members viz., one Sepoy and Driver left NCB Office and reached the  

scene  of  occurrence  at  11.00  a.m.  On  the  instruction  of  P.W.6,  P.W.7  

procured  two  independent  witnesses  viz.  S.  Gopi  (P.W.8)  and  one  

Krishnamurthy  (not  examined).  They  intercepted  the  Ambassador  Car  

bearing  Registration  No.  TN-01-K0923 and  found  that  there  were  six  

passengers inside the car. On the front seat, there were two drivers namely,  

Satyakeerthi  and Mariappan  and  next  to  driver  Mariappan,  the  appellant  

herein  was  sitting.  On  the  back  seat  Prem  @  Kannan  @  Sudeshwaran  

(Accused No. 2) of Srilanka, Bapulal (Accused No. 1) of Chennai & Badrilal  

Sharma (Accused No. 4) were seated. After the police party enquired as to  

whether there were any Narcotic Drugs, Accused No. 1 & 2 who were seated  

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on the back seat, took out one green colour bag from beneath their seat and  

handed it over to Mr. Aruldoss (P.W.7) stating that it contains 5 Kgs. of  

heroin.  The recoveries  were,  thereafter,  effected and the accused persons  

were arrested for commission of offences under the NDPS Act. The two  

drivers of the ambassador car were, thereafter, allowed to go. The appellant  

and the other accused persons were arrested by the raiding party.   

6. While the four accused persons including the appellant  were  

arrested, the other two accused namely Guddu Singh @ Vikram Singh and  

Ravi  could  not  be  arrested  and  were  absconding.  The  statements  of  the  

arrested  accused  persons  were  recorded  by  Mr.  A.  Sendhil  Murugan,  

Intelligence Officer. The appellant also gave his statement under Section 67  

of the NDPS Act as per which he confessed to the commission of the crime.

7. The  case  was,  thereafter,  handed  over  to  Mr.  R.  Murugan  

(P.W.2)  for  investigation.  After  completing  the  investigation,  he  filed  a  

report under Section 173 of the Code of Criminal Procedure, 1973 before the  

Special Judge under NDPS Act. Charges were framed and the matter went  

on trial. The prosecution examined as many as 10 witnesses. Among them  

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were Mr. L.S. Aruldoss - Intelligence Officer, NCB (P.W.7), Mr. Gunabalan  

–  Superintendent  (P.W.6),  Mr.  A.  Sendhil  Murugan  (P.W.10),  Mr.  R.  

Murugan (P.W.2),  Smt.  Saraswathy Chakravarthy,  Chemical  Examiner in  

Customs House Laboratory at Chennai (P.W.4), Mr. T. Sridhar (P.W.5).

8. The information relating to the commission of the offence has  

been taken note of and discussed by the Trial Court as well as the High  

Court in the impugned judgment in detail. It is not necessary to burden this  

judgment with all those details as our purpose would be served by referring  

to those aspects which are essential for the purposes of the present appeal.  

We may state that the prosecution had also produced Exs. P1 to P81 and  

M.Os 1 to 19 during the trial. After examining the prosecution witnesses,  

statements of the accused persons under Section 313 of the Code of Civil  

Procedure (hereinafter to be referred as ‘Code’)were recorded.  The accused  

persons denied the same and stated as follows:

A-1: Denied the incriminating evidence against him and stated that  he was compelled to come to the NCB Office and a false case is  foisted against him and gave a written statement stating that the  NCB officers came to his house between 12.30 to 1.00 p.m. on  25.10.2004  and  took  him  to  their  office  at  Chennai  in  the  presence of his wife and his children and have forcibly taken  the signatures on some papers written in Hindi and that he is  

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not  connected  with  the  other  accused  and  that  he  was  not  occupant of the Car as alleged in the case and he was not aware  of the contraband seized and examined defence witnesses on his  behalf  namely  Mr.  Vinay,  son  of  A-1,  D.W.1  and  Dr.  Somasundaram D.W.2.  

A-2: Denying the incriminating evidence against him stated that he  was taken from Nanganallur to the NCB Office and that he was  not allowed to talk before the Judge during remand.

A-3: Stated that summon was not issued to him and Rs. 1,600/- and  train tickets were seized from him at Chennai Central Railway  Station and he was beaten and forced to sign in the NCB office  on blank papers and stated that it is a false case.

A-4: Stated that he was arrested at Nellore Railway Station while he  was  coming  from  train  and  his  signatures  were  obtained  forcibly and the Intelligence Officer Mr. Karthikeyan (P.W.3)  has foisted a false case against him due to quarrel in the train  between  him  and  the  Intelligence  Officer  and  that  he  was  working in the RPF and is not connected with the contraband  seized and gave a written statement stating that he travelled in  mufti  to  go  to  Tirupathy  and  got  down  at  Chennai  Central  Railway Station and was arrested  and false  case  was foisted  against  him  due  to  wordy  quarrel  with  the  officer  and  that  Section 67 statement was obtained by force and torture and that  he was not carrying any Narcotic Drug.  

Thereafter,  the accused persons produced two witnesses  who  

were examined and one document Ex. D1 was marked.

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9. Defence evidence is as follows:-

DW.1:  The NCB Officers came at about 1.00 p.m on 25.10.2004 and  searched the house of A-1 and they obtained his signature and  his mother’s signature in blank papers by threatening them. A- 2 has not gone anywhere during September and October of  2004 and he was at home doing cloth business. A-1 was taken  from his  office  and  arrested.  The  other  accused  had  never  contacted A-2 over phone at any time.

DW.2:  Dr. Somasundaram has recommended A-1 for treatment for  Paralysis at Royapettah Hospital and his case sheet containing  21 pages for treatment from January, 2008 to 25.9.2008 is Ex.  D.1.  

10. It  would  be  relevant  to  point  that  two  of  the  accused  persons  

namely Guddu Singh @ Vikram Singh and Ravi were absconding and they  

could not be procured during the trial, resulting into splitting up of case as  

new C.C. No. 9 of 2007. Thereafter, the trial proceeded against the other  

four accused persons which led to their conviction, as mentioned above. All  

these four accused persons had filed the appeal which has been dismissed by  

the High Court of Judicature at Madras vide impugned Judgment. However,  

out of the four convicted persons, only the appellant herein has preferred the  

present appeal.  

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JUDGMENT OF THE TRIAL COURT:

11. The  learned  Trial  Court  in  its  judgment  dated  18.12.2009,  after  

pointing out the main prosecution evidence as well as the defence, noted that  

the gist of the prosecution case was that the six accused persons had hatched  

criminal  conspiracy at  Nellore,  Andhra Pradesh,  Chennai  and Srilanka to  

procure, possess, transport and attempt to export out of India 5.250 Kgs. of  

heroin to Srilanka. Accused No. 2 had indulged in financing for purchase of  

heroin for which he entered India without registering himself as a foreigner.  

The heroin, which was seized, was being taken for the said export which was  

intercepted in the manner stated below:-

“As per the prosecution, after the information was received by  Mr. L.S. Aruldoss, Intelligence Officer (P.W.9) on 23.10.2004  and discussed with Mr. Gunabalan, Superintendent (P.W.6) and  Mr.  A.  Sendhil  Murugan,  Intelligence  Officer  (P.W.10)  and  further  action was sanctioned,  the raiding party consisting of  PW.6, PW.7, PW.10 with Sepoy and driver, left the NCB office  in the vehicle Mini Bus bearing Registration No. TN 09 C 3113  on 24.10.2004 at 9.00 a.m and had reached GNT Road 100’  Road  Junction  at  11.00  a.m.  Two  independent  witnesses  namely,  Mr.  S.  Gopi  (P.W.8)  and  Krishnamurthy  were  also  associated.  When  they  were  mounting  surveillance  at  about  

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12.00 noon, they noticed Ambassador Car bearing Regd. No.  TN 01 K 0923 coming towards Chennai which was intercepted  by the raiding authority and the heroin in question seized in the  manner  already  explained  above.  The  case  argued  by  the  prosecution was that the conspiracy hatched between Accused  No. 1 to 4 was proved by the seizure of Ex. P-4 train ticket  PNR  No.  840-7161615  dt.  14.10.2004  and  Ex.  P-41  the  booking particulars disclose the name of  A-2, A-2 and Rajesh  and the place of  travel  from Mumbai  to madras and another  passenger name through it  was mentioned in it  was given as  Shahid by A-1 in his further voluntary statement in Hindi Ex.  P-6 of which the free English translation is Ex. P-77 in which it  is stated that Shahid is the person through whom money was  sent  to  Guddu  Singh  which  in  fact  is  within  the  special  knowledge of A-1. In the same manner Ex. P-5 telephone bills  were  seized  from the  residence  of  A-1  and  when  A-21  was  questioned about the telephone numbers Faroth and Sarola A-2  has  stated  in  Ex.  P-77  that  these  numbers  belong  to  Guddu  Singh  and  his  brother  through  which  he  used  to  talk  about  smuggling  of  heroin.  In  the  English  translation  of  voluntary  statement of A-3, Ex. P-78 of which the Hindi version is Ex. P- 10 it is stated that A-3 met Guddu Singh who introduced him to  A-4 and told him that A-4 is working in RPF, Bhawani Mandi,  Rajasthan and that  A-4 would travel  with him in uniform in  Jaipur  Chennai  Express  and handed over  a  bag containing 5  Kgs. of heroin stating that it should be handed over to A-1 at  Nellore who was already introduced to A-3 on 13.10.2004. The  version of A-3 in Ex. P-78 that he travelled in Jaipur Chennai  Express from Shamgarh is corroborated by the seizure of two  train tickets Ex. P-61 and Ex. P-62 from Shamgarh to Chennai  from A-3 and I.D. Card of A-4 Ex. P-63 discloses that A-3 was  working in RPF. Ex. P-79 is the voluntary statement  of  A-4  which is free english translation of the hindi statement of Ex. P- 74 in which A-  has stated that he boarded Jaipur Express on  22.10.2004 and met A-3 in Bhopal in the train and that he knew  that A-3 brought Narcotic Drug with him. Conspiracy could be  

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proved only through the conduct of the accused. A-3 and A-4  had travelled with the contraband in the train and have met A-1  and A-2 at Nellore and handed over the same and boarded in  the ambassador car only due to the previous meeting of minds  by fixing the time and place of handing over the contraband to  the concerned accused. From the proved conduct of A-1 to A-4  it  is  clear  that  they  have  involved  themselves  in  the  illegal  trafficking  of  heroin.  Ex.  P-21  call  analysis  discloses  that  07425-284050  in  the  name  of  Bhuvan  Singh  of  M.P.  was  frequently in touch with A-2 and A-2 mobile numbers A-1 in  his voluntary statement Ex. P-2 has stated that Guddu Singh  Number is 07425-284050 through which he used to contact A-3  and Guddu Singh. Hence,  the prosecution contended that the  charges  against  A-1  to  A-4  for  possession  transportation  of  heroin for Export from India and Conspiracy U/s. 8(c)  r/2. 21  (c) and 29 of NDPS Act were well proved.”

12. In  so  far  as  the  charge  under  Section  28  of  the  NDPS  Act  is  

concerned, the trial court held that the said charge was not proved against  

the accused persons, in as much as at the stage of preparation to commit the  

offence of illegal export of contraband, the car was intercepted and search  

and seizure conducted which resulted in the recovery of the contraband. As  

such, the accused persons were apprehended in the middle of the operation  

and since the attempt to commit the offence of export had not yet begun, it  

could not be said that the accused persons had committed any act  which  

could be considered as a step towards the commission of offence of export  

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of the contraband. The accused persons were, thus, acquitted of the charge  

under Section 28 of the NDPS Act.  

13. Likewise, the trial court held that charge under Section 27A of the  

NDPS Act foisted upon the accused No. 2 was not proved as no oral or  

documentary  evidence  was  produced in  the  form of  Bank  Pass  Book or  

income particulars or documents regarding the money transactions between  

the  seller  and  the  purchaser  of  heroin.  Moreover,  there  was  no  oral  or  

documentary evidence to show that the Accused No. 2 had failed to register  

himself as a foreigner or that he had entered into India without valid and  

legal documents and thus, he was acquitted of the charge under Section 3(3)  

of the Passport (Entry into India) Act, 1920 read with Rule 3 (a) as well as  

under Section 14 of the Foreigners Act, 1946.

14. While discussing the main charge leveled under Section 8(c) read  

with Section 21(c) and 29 of the NDPS Act, the trial court noted that the  

defence  counsel  had  sought  for  discard  of  the  prosecution  case  on  the  

following grounds:

(i) Voluntary statement recorded under Section 67 of the NDPS  Act had been retracted and so, they had no evidentiary value.

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(ii) There was violation of Section 50 of the NDPS Act as there  was non-compliance of the provisions thereof .

(iii) Driver of the vehicle was not examined which was fatal to the  prosecution case.

(iv) Sample sent for analysis and the  seized contraband were not  one and the same.

(v) There was no link evidence which vitiated the trial.

(vi) Names of Accused No. 3 (the appellant) and Accused No. 4  were not mentioned in the information which was received by  the  Intelligence  Officer  and,  therefore,  they  were  wrongly  included in the charge sheet.

(vii) There was a  violation  of  standing order  1/88 in  as  much as  samples were not submitted to the Chemical Examiner within  72 hours of seizure and the report was not submitted within 15  days of receipt of contraband for analysis.

(viii) Statements under Section 67 were not recorded in accordance  with  law,  as  no  statutory  warning  under  Section  164  of  the  Code of Criminal Procedure was given to the accused persons  before recording the statement.

15. The trial court discussed the arguments predicated on the aforesaid  

defence but found the same to be meaningless. On the basis of prosecution  

evidence, the trial court concluded that the prosecution was able to prove the  

charges under Section 8(c) read with Section 21(c) and Section 29 of the  

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NDPS Act and convicted and sentenced the accused persons in the manner  

mentioned in the beginning of this judgment.

JUDGMENT OF THE HIGH COURT:

16. A perusal of the impugned judgment reveals that as many as six  

arguments were advanced before the High Court, attacking the findings of  

the learned Trial Court. Taking note of these grounds of appeal, the High  

Court  framed  the  questions  in  Para  12  of  the  judgment.  We  reproduce  

hereinbelow  those  six  questions  formulated  by  the  High  Court  which  

reflected the nature of defence:                

(i) Whether Section 50 of NDPS Act is complied with or  not?

(ii) Whether  the  provision  of  Section  42  of  NDPS Act  is  complied with or not?

(iii) Whether non-examination of drivers and non-seizure of  vehicle/ car are fatal to the case of the prosecution?

(iv) Whether Section 67 statement of the accused is reliable?

(v) Whether Accused No. 2 is entitled to invoke Section 30  of NDPS Act?

(vi) Whether conviction and sentence passed by the trial court  is sustainable.

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17. Obviously,  all  these  questions  have  been  answered  by  the  High  

Court against the appellant herein as the outcome of the appeals has gone  

against the appellant. However, it is not necessary to mention the reasons/  

rationale given by the High Court in support of its conclusion in respect of  

each and every issue. We say so because of the reason that all the aforesaid  

contentions  were  not  canvassed  before  us  in  the  present  appeal.  Thus,  

eschewing the discussion which is not relevant for these appeals, we would  

be narrating the reasons contained in the impugned judgment only in respect  

of  those  grounds  which  are  argued  by  Mr.  Sushil  Kumar  Jain,  learned  

Counsel  appearing  for  the  appellant,  that  too  while  taking  note  of  and  

dealing with those arguments.

THE ARGUMENTS:

18. After giving brief description of the prosecution case, in so far as  

the alleged involvement of the appellant is concerned. Mr. Sushil Kumar  

Jain drew our attention to the following aspects as per the prosecution case  

itself:

(a) In  the  present  case  in  the  prior  secret  information  with  the  police,  there  was  no  prior  information  with  regard  to  the  

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appellant  herein.  The secret  information (Ex.  P-72)  does  not  disclose the name of the appellant at all.

(b) On the date of incident also, the appellant was found sitting on  the front seat alongwith the two drivers who have been let off  by the investigating agency itself and the ambassador car from  which the recoveries had been effected has also not been seized.  The said drivers could have been the best witnesses but they  have not been examined by the prosecution.

(c) The recovery of the narcotic substance was made at the instance  of A1 and A2 (and not the appellant herein), who while sitting  on the back seat took out a green colour bag from beneath their  seat and handed it over to PW.7. The appellant cannot be said  to be in conscious possession of the narcotic substance.

(d) In  the  search  conducted  of  the  appellant  herein,  the  raiding  party found Indian currency of Rs. 680/- (vide Ex. P-11) which  is M.O. 15 and two second class train tickets from Shamgarh to  Chennai.  Thus  no incriminating  material  has  been  recovered  from the appellant.  Further  there  is  also  no recovery  of  any  mobile phone from the appellant herein which could link the  appellant with the other co-accused.

(e) The  prosecution  case  hinges  solely  upon  the  confessional  statement of the appellant herein (Ex. P-9), which was recorded  by PW.2 – R. Murugan under Section 67 of the Act, and the  same person acted  as  the investigating officer  in  the present  case.

19. From the above, Mr. Jain argued that there was no evidence worth  

the  name  implicating  the  appellant  except  the  purported  confessional  

statement of the appellant recorded under Section 67 of the NDPS Act. After  

drawing the aforesaid sketch, Mr. Jain endeavoured to fill therein the colours  

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of innocence in so far as the appellant is concerned with the following legal  

submissions:-

(I) It  was argued that the conviction of the appellant  is based  upon a purported confessional statement (Ex. P-9] recorded by PW.2  R.  Murugan under the provisions  of  Section 67 of  the NDPS Act,  which did not have any evidentiary value. Mr. Jain submitted in this  behalf that:

(a) There is no power under Section 67 of the NDPS Act to  either  record  confessions  or  substantive  evidence  which  can  form  basis for conviction of an accused, in as much as:

(i) The scheme of the Act does not confer any power upon  an  officer  empowered  under  Section  42  to  record  confessions  since  neither  a  specific  power  to  record  confession  has  been  conferred  as  was  provided  under  Section  15  of  the  Terrorist  and  Disruptive  Activities  (Prevention) Act, 1987 (TADA) or under Section 32 of  the Prevention of Terrorism Act, 2002 (POTA) nor the  power under Section 67 is a power to record substantive  “evidence”  as  in  Section  108  of  the  Customs  Act  or  Section 14 of the Central Excise Act which are deemed  to be judicial proceedings as specifically provided under  Section 108(4) of the Customs Act or Section 14(3) of  the Central Excise Act.

(ii) The powers under Section 67 has been conferred upon an  officer  under  Section  42  so  that  such  officer  can  effectively  perform  his  functions.  The  power  under  Section  67  is  incidental  to  and  intended  to  enable  an  officer  under  Section  42  to  effectively  exercise  his  powers  of  entry,  search,  seizure  or  arrest  which  is  

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provided under Section 42 of the Act. The powers under  Section 67 are  powers to  “call  for  information” which  information can thereafter form the basis for satisfaction  of  “reasons  to  believe  by  personal  knowledge  or  information”  appearing  in  Section  42  and  which  a  jurisdictional  basis  and  a  pre-condition  to  exercise  powers under Section 42 of the Act. Absence of reasons  to believe or information would render the exercise under  Section 42 of the Act bad in law and hence in order to  derive  the  said  information  power  has  been  conferred  under Section 67 to an officer empowered under Section  42.  This  statement  is,  therefore,  merely  “Information”  subject  to  investigation  and  cannot  be  treated  as  substantive evidence.

(b) Pitching  this  argument  to  the  next  level,  it  was  submitted  that  the  power  under  Section  67(c)  of  the  Act  is  merely  a  power  to  examine  any  person  acquainted  with  the  facts  and circumstances  of  the case.  Such statements are not  required in law to be truthful as provided under Section 161(2)  of  the  Criminal  Procedure  Code,  which  required  the  person  making statement to a police officer under Section 161 Cr.P.C.  to make a true statement. Even such a statement made under  Section 161 Cr. P.C. is not a substantive evidence on which a  conviction can be based. Statements under Section 67 are not  required in law to be given truthfully and hence cannot in any  case be treated to be a substantive evidence. Further statement  under Section 67 are not recorded after administration of oath  as is required under Section 164(5) of the Criminal Procedure  Code, the officers are not competent to administer oaths and,  therefore, the statements under Section 67 cannot be substantive  evidence for recording conviction.   

(c) Taking the arguments  to  a  still  higher  pedestal,  Mr.  Jain’s effort was to demonstrate that the officer recording the  

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statement was a police officer and, therefore, such a statement  was hit by Section 25 of the Indian Evidence Act. He submitted  that an officer empowered under Section 42 of the Act has been  conferred with substantive powers which are powers available  to a police officer for detection and prevention of crime. The  learned Counsel  placed  heavy  reliance  upon the  ratio  of  the  judgment of the Constitution Bench of this Court in the case of  Batku  Jyoti  Sawat  Vs.  State  of  Mysore  1966  (3)  SCC  698  which accepted  a  broader  view,  as  laid down in the case  of  Rajaram Jaiswal Vs. State of Bihar 1964 (2) SCR 752 and State  of Punjab Vs. Barkat Ram 1962 (3) SCR 338. It was submitted  that  in  view  of  the  ratio  of  the  above  judgments,  officers  empowered  under  Section  42  and  conferred  with  powers  to  enter,  search, seize or arrest are “police officers” properly so  called and hence statements made to such officers would be hit  by the provisions of Section 25 of the Evidence Act. In any case  such officers would come within the meaning of term “person  in authority” and hence the statements recorded by such officers  would be hit by the provisions of Section 24 of the Evidence  Act especially since the statements were not voluntary and had  been retracted by the accused.

(d) In the alternate, the submission of Mr. Jain was that  even if it is assumed, without admitting, that Section 67 confers  powers to record confessions, the status of a statement recorded  by  an  officer  under  Section  42  of  the  Act  can  at  best  be  recorded as “extra judicial confession” and no conviction can  be based solely on the basis of extra judicial convictions.

(e) It was also argued that in any case the statement under  Section  67  was  retracted  and  as  such  the  confession  in  the  present case is a retracted confession which ought to have been  investigated and could have been used only to corroborate other  evidence and not as a substantive evidence itself. He submitted  that  no  conviction  can  be  based  on uncorroborated  retracted  

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confessional statement as held in Noor Aga Vs. State of Punjab  2008 (9) SCALE 681.

(II) Next  submission  of  Mr.  Jain  was that  there  was complete  absence of Fair Investigation and Non-compliance of the provisions of  Section 52(3) of the Act-

Pointing out that in the present case the appellant had been arrested by  PW.2 – R. Murugan after recording statement under Section 67 of the Act,  the ld. Counsel  made a fervent plea to the effect that it  was evident that  PW.2 R. Murugan was exercising purported powers conferred to an officer  under Section 42 of the Act. It was submitted that Section 52(3) of the Act  casts an obligation on an officer empowered under Section 42 of the Act to  forward, without unnecessary delay every person arrested or article seized to  either an officer-in-charge of a police station or an officer empowered under  Section 53. According to him, since there is an obligation to forward such  person arrested or article seized, to an officer under Section 53 or an officer- in-charge of the police station, it necessarily follows that an officer under  Section 42 would be different and distinct from an officer invested with the  task of investigation, i.e., either the officer-in-charge of the police station or  an  officer  empowered  under  Section  53 of  the  Act.  In  the  present  case,  however,  the  PW.2  R.  Murugan  recorded  the  statement  of  the  appellant  under Section 67 and thereafter arrested him. He was, therefore, required to  forward the statement as well as the appellant to the Investigating officer in  terms of Section 52(3). Instead, he himself became the Investigating Officer  in the present  case,  which amounted to non-compliance of  Section 52(3)  read with Section 58 of the Act. Fair investigation demands existence of an  independent investigating agency which is also contemplated and is evident  from the scheme of NDPS Act. It was submitted that since Section 58 of the  Act provides for punishment for vexatious entry, search, seizure and arrest,  the conduct of the officer arresting or an officer under Section 42 is subject  matter  of  investigation  by  an  independent  agency  and  hence  PW.  2  R.  Murugan could not have been made an investigating officer in the present  case after he has already acted and exercised powers under Section 42 of the  Act.

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(III) Another submission of Mr. Jain was that trial was initiated  because of Non-compliance of the Provisions of Section 57 of the Act  –  

It  was  submitted that  Section 57 requires  that  whenever  any  person makes any arrest or seizure under the Act, then a report thereof has to  be submitted of such arrest or seizure to his immediate superior officer. In  the  present  case  the  raiding  party  comprised  of  PW.6-  Gunabalan,  Superintendent  –  PW.7  Aruldoss,  Intelligence  Officer,  PW.10  Sendhil  Murugan, Intelligence Officer and two other staff members i.e., one Sepoy  and one  driver.  It  was  submitted  that  the  senior  most  officer  among the  raiding team was PW.6 Gunabalan who was, therefore, exercising powers  under Section 42 of the Act and the other officers being his subordinates  were  assisting  him  in  exercise  of  such  powers.  Therefore,  the  report  contemplated  under  Section  57  ought  to  have  been  made  by  PW.6  Gunabalan to his immediate superior officer but instead, in the present case  PW.7 Aruldoss has submitted a report to PW.6 Gunabalan under Section 57  of the Act with regard to seizure and PW.2 R. Murugan has submitted report  to PW.6 Gunabalan under Section 57 with regard to arrest of the appellant  herein. It is, thus, submitted that there is a complete non-compliance of the  provisions  of  Section  57  of  the  Act  which  has  vitiated  the  safeguards  provided  under  the  Act  and  as  such  the  appellant  could  not  have  been  convicted.

20. Arguing on behalf of the prosecutor, Mr. S. Nanda Kumar, learned  

Counsel  submitted  that  the  appellant  had  given  voluntary  statement  that  

discloses his involvement in the commission of the offence alongwith other  

accused  persons.  In  the  statement  he  has  categorically  admitted  having  

bringing  5.250  kgs  of  heroin/  narcotic  substance  from  Maniki  Village,  

District Mandsaur, Rajasthan to Chennai by Jaipur – Chennai Express along  

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with other co-accused Badrilal Sharma wearing RPF Uniform till  Nelore,  

Andhra Pradesh.  He has  also  admitted that,  thereafter,  the other  accused  

namely Guddu Singh @ Vikram Singh and Bapulal Jain picked them in a car  

and proceeded to Chennai. It is on the way that these accused persons were  

caught by the respondent’s officials and based on their confession as well as  

the material seized, the case was registered. He also pointed out that it has  

come on record that Babulal Jain (declared as absconder) and Guddu Singh  

were involved in the similar offence by selling 8 Kgs. of heroin on earlier  

occasions which was handed over to Prem @ Kannan, a Srilankan National,  

another  co-accused in this  case.  It  was the second time that  the accused  

persons planned to smuggle the heroin to Srilanka.  

21. Refuting the submissions of the appellant, it was submitted that the  

confessional statement recorded under Section 67 of the NDPS Act could be  

acted upon, as the officer  recording statement under this provision under  

Section 67 is not a “police officer” and, therefore, such a statement is not hit  

by the provisions of Section 24 to 27 of the Evidence Act or Article 20(3) of  

the Constitution of India. His submission was that law on this aspect had  

already been settled by the judgment of this Court in Kanhaiyalal v. Union  

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of India; 2008 (4) SCC 668 as well as Raj Kumar Karwal v. Union of India;  

1990(2) SCC 409.  The learned Counsel  pointed out  that judgment relied  

upon by the appellant pertains to other Acts like Customs Act etc. whereas  

the  aforesaid  judgments  specifically  dealt  with  the  nature  of  duties  

performed by officers under the NDPS Act and, therefore, on this issue Raj  

Kumar (Supra) and  Kanhaiyalal (Supra) were the binding precedents.  He  

also submitted that as per Section 67 of NDPS Act, any officer referred to in  

Section 42 of NDPS Act was empowered to obtain a statement. Once the  

said statement is made it can also be construed as confessional statement  

since there is no specific  provision in the Act to obtain the confessional  

statement from the accused. Therefore, such a statement of the appellant was  

rightly relied upon resulting into his conviction.  

22. The learned Counsel for the state also countered the submission of  

the appellant that the officer acting under Section 53 of the NDPS Act i.e.  

the investigating officer had to be necessarily different from the officer who  

is acting under Section 42 of the NDPS Act. He submitted that Sections 42,  

53 and 67 of NDPS Act do not bar the officer authorized under the act to  

conduct,  search,  seizure,  investigate  and  enquire  into  the  matter.  His  

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submission  was  that  the  depositions  of  PW.2  –  Murugan,  Intelligence  

Officer, PW.6 – Gunabalan, Superintendent and PW.10 – Senthil Murugan,  

Intelligence Officer establish that they are empowered to act under Section  

42, 53 and 67 of the NDPS Act.  

23. The learned Counsel also highlighted incriminating facts as per the  

records viz.  the raid team was led by PW.6 - Gunabalan,  Superintendent  

along with  the  PW.10 A.  Senthil  Murugan,  Intelligence  Officer  and  one  

Aruldoss, Intelligence officer. Also two other officials conducted the raid  

and made a search and seizure of the heroin on 24.10.2004 at 12.00 hrs. at  

GNT Road, 100 ft. road, Madhavaram in Chennai where the vehicles come  

from Nellore, Andhra Pradesh towards Chennai Junction. After the seizure,  

PW.2  –  Murugan  enquired  into  the  matter  as  per  the  direction  of  the  

superintendent. He also obtained the voluntary statement under Section 67 of  

the NDPS Act. The accused also gave another statement for supply of heroin  

to  Guddu  Singh.  The  confessional  statement  of  Badrilal  Sharma,  who  

travelled alongwith accused/ appellant was also recorded. The confessional  

statement  of  absconded accused viz.  Babulal  Jain  is  also  on the original  

record. In addition to that, the Identity Card of Badrilal Sharma and the train  

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tickets  of  the  appellant  and  Badrilal  Sharma,  as  both  of  them  travelled  

together,  have come on record.  All  this  proves  that  the appellant  was  in  

possession of the heroin 5.250 Kgs. and carried it from Rajasthan to Chennai  

with intention to smuggle the same to Srilanka, when he was caught. He thus  

pleaded that conviction and sentence of the appellant was rightly recorded  

by the courts below, which warranted no interdicting by this court.

24. From  the  arguments  noted  above,  it  would  be  clear  that  the  

appellant has challenged the conviction primarily on the following grounds:-

(i) The conviction is based solely on the purported confessional  statement recorded under Section 67 of the NDPS Act which has no  evidentiary value in as much as:

(a) The statement was given to and recorded by an officer  who is  to  be  treated  as  “Police  Officer”  and  is  thus,  hit  by  Section 25 of the Indian Evidence Act.

(b) No  such  confessional  statement  could  be  recorded  under Section 67 of the NDPS Act. This provision empowers to  call  for  information  and  not  to  record  such  confessional  statements. Thus, the statement recorded under this provision is  akin to the statement under Section 161 Cr.PC.  

(c) In any case, the said statement having been retracted, it  could not have been the basis of conviction and could be used  only to corroborate other evidence.

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(ii) There was absence of fair investigation and non-compliance  of the provisions of Section 52(3) of the NDPS Act. This submission  is  primarily based on the argument that  same person cannot be an  officer  under Section 42 of the NDPS Act as well  as  investigating  officer under Section 52 of the said Act.

(iii) Non-compliance  of  Section  57  of  the  NDPS  Act  is  also  alleged because of the reason that P.W.7 who was the senior most  officer among the raiding team has submitted the report under Section  57 of the NDPS Act with regard to arrest of the appellant to P.W.6j.  Instead  P.W.6  should  have  submitted  the  report  of  such  arrest  to  P.W.7.

25. We shall take up these arguments in seriatim for our discussion:

Evidentiary value of statement u/s 67 of the NDPS Act.

Before examining this contention of the appellant, it would be  

apposite  to take note of  the provisions of  Sections 42,  53 and 67 of  the  

NDPS Act. These provisions read as under:-

42. Power of entry, search, seizure and arrest without warrant or  authorization.  (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 including para-military  forces  or  armed  forces  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  

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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  persons  knowledge  or  information given by any person and taken down in writing that  any  narcotic  drug,  or  psychotropic  substance,  or  controlled  substance in respect of which an offence punishable under this  Act has been committed or any document or other article which  may furnish evidence fo the commission of such offence or any  illegally  acquired  property  or  any  document  or  other  article  which may furnish evidence of holding any illegally acquired  property  which  is  liable  for  seizure  or  freezing  or  forfeiture  under  Chapter  VA  of  this  Act  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 animal or conveyance which he reason to  believe to be liable to confiscation under this Act  and any document  or  other  article  which he has  reason  to  believe  may  furnish  evidence  of  the  commission of any offence punishable under this  Act  or  furnish  evidence  of  holding any illegally  acquired  property  which  is  liable  for  seizure  or  freezing  or  forfeiture  under  Chapter  VA  of  this  Act; 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 this Act.

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Provided  that  if  such  officer  has  reason  to  believe  that  a  search  warrant  or  authorization  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.

(2) Where  an  officer  takes  down  any  information  in  writing under sub-section (1) or records grounds for his belief  under  the  proviso  thereto,  he  shall  within  seventy-two hours  send a copy thereof to his immediate official superior.

“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 the Border Security Force or any class of such officers  with the powers of an officer-in-charge of 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.”

“67. Power to call for information etc. Any officer referred to in Section 42 who is authorized in this  behalf by the Central Government or a State Government may,  

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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 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.”

26. We have already taken note of the contentions of Counsel for the  

parties on the interpretation of the aforesaid provisions. To recapitulate in  

brief, the submission of Mr. Jain is that there is no power in the Section67  

of the NDPS Act to either record confessions or substantive evidence which  

can form basis for conviction of the accused. It is also argued that, in any  

case, such a statement is not admissible in evidence as the excise official  

recording the statement  is  to  be treated  as  “police officer”  and thus,  the  

evidential value of the statement recorded before him is hit by the provisions  

of Section 25 of the Indian Evidence Act.

27. The learned Counsel for the respondent had pointed out that in the  

case  of  Kanhaiyalal vs.  Union  of  India;  2008(4)  SCC 668, it  has  been  

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categorically held that the officer under Section 63 is not a police officer. In  

arriving  at  that  conclusion  the  two  judge  Bench  judgment  had  followed  

earlier  judgment  in  the  case  of  Raj  Kumar  Karwal Vs.  Union of  India;  

1990(2) SCC 409.  

28. Had the matter rested at that, the aforesaid dicta laid down by two  

judge Bench would have been followed by us. However, on the reading of  

the aforesaid judgment,  we find that the only reason to conclude that  an  

officer under Section 53 of the NDPS Act was not a police officer was based  

on the following observations:

These provisions found in Chapter V of the Act show  that there is nothing in the Act to indicate that all the powers  under Chapter XII of the Code, including the power to file a  report  under  Section  173  of  the  Code  have  been  expressly  conferred on officers who are invested with the powers of an  officer-in-charge of a police station under Section 53, for the  purpose of investigation of offences under the Act.

29. We find, prima facie, in the arguments of Mr. Jain to be meritorious  

when he points out that the aforesaid observations are without any detailed  

discussion or the reasons to support the conclusion arrived at.  Mr. Jain’s  

fervent plea to depart from the view taken in the said judgment deserved  

consideration as there is no provision under the NDPS Act which takes away  

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the power of filing a report under Section 173 of the Code which is available  

with  an  officer-in-charge  of  a  police  station.  He  further  argued  that  the  

provision of Section 173 are contained in Chapter XII of the Code and since  

all  powers of an officer in-charge of a police station has been conferred,  

there is no legal basis to suggest that the said power is not available with the  

officer under Section 53 of the Act. Above all, we find that the judgment in  

Raj Kumar Karwal (supra) was considered by this court in few cases but  

without giving imprimatur, as can be seen below:  

30. Abdul Rashid v. State of Bihar; (2001) 9 SCC 578, this Court after  

noticing the  judgment  in  Raj  Kumar  Karwal  (supra),  chose  to  apply  the  

Constitution Bench judgment in the case of Raja Ram Jaiswal reported as  

(1964) 2 SCR 752 and observed thus:-

“ Mr. B.B. Singh also brought to our notice a judgment  of  this  Court  in  the case  of  Raj  Kumar Karwal v.  Union of   India in support of the contention that even a superintendent of  excise under the Bihar and Orissa Excise Act is not a police  officer and as such a confessional statement made to him would  be admissible in evidence. In the aforesaid case, the question  for consideration is whether the officers of the Department of  Revenue Intelligence (DRI) invested with powers of officer in- charge of a police station under Section 53 are police officers or  not within the meaning of Section 25, and this Court answered  that those officers are not police officers.  This decision is in  

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pari material with the Constitution Bench decision in 1966 and  does not in any way detract from the conclusion of this Court in  Raja Ram which we have already noticed. In Pon Adithan v.  Dy. Director, Narcotics Control Bureau this question had not  directly been in issue and the only question that was raised is  whether the statement made was under threat and pressure. It is  obvious that a statement of confession made under threat and  pressure  would  come within  the  ambit  of  Section  24  of  the  Evidence  Act.  This  decision  therefore  would  not  be  direct  authority on the point in issue. In the aforesaid premises, the  decision of Raja Ram would apply to the alleged confessional  statement made by the appellant to the superintendent of excise  and therefore would be inadmissible in evidence.”

31. Both the said judgments i.e. Raj Kumar Karwal (supra) as well as  

Kanhiyalal (supra) were thereafter considered by this court in Noor Aga vs.  

State of Punjab (2008) 9 SCALE 681 where the court, has after considering  

the entire scheme of the Customs Act, has held that the officer under Section  

53 of the customs Act is a police officer and would, therefore, attract the  

provisions of Section 25 of the Evidence Act. It observed:

“104. Section 53 of the Act, empowers the Customs Officer  with  the  powers  of  the  Station  House  Officers.  An  officer  invested  with  the  power  of  a  police  officer  by  reason  of  a  special status in terms of sub-section (2) of section 53 would,  thus, be deemed to be police officers and for the said purposes  of Section 25 of the Act shall be applicable.”

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32. No doubt,  Abdul  Rashid  & Noor  Aga were  the cases  under  the  

Customs Act. But the reasons for holding custom officer as police officer  

would  have  significant  bearing  even  when  we  consider  the  issue  in  the  

context of NDPS Act as well. It would be more so when the schemes &  

purport of the two enactments are kept in mind. NDPS Act is purely penal in  

nature. In contradistinction, as far as the Customs Act and the Central Excise  

Act are concerned, their dominant object is to protect revenue of the State  

and penal provisions to punish the person found offending those laws are  

secondary in nature.  

33. Further,  the  NDPS Act  is  a  complete  code  relating  to  Narcotic  

Substances, and dealing with the offences and the procedure to be followed  

for  the  detection  of  the  offences  as  well  as  for  the  prosecution  and  the  

punishment of the accused. The provisions are penal provisions which can,  

in certain cases, deprive a person of his liberty for a minimum period of 10  

years and can also result in sentences which can extend upto 20 years or  

even death sentence under certain circumstances. The provisions therefore  

have to be strictly construed and the safeguards provided therein have to be  

scrupulously and honestly followed. [See  Baldev Singh (1997) 1 SCC 416  

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Para 28; Union of India vs. Bal Mukund (2009) 12 SCC 161 Para 26, 27 &  

28; Balbir Singh vs. State of Haryana (1987) 1 SCC 533].

34. We have also to keep in mind the crucial test to determine whether  

an officer is a police officer for the purpose of Section 25 of the Evidence  

Act viz. the “influence or authority” that an officer is capable of exercising  

over  a  person  from  whom  a  confession   is  obtained.  The  term  “police  

officer” has not been defined under the Code or in the Evidence Act and,  

therefore, the meaning ought to assessed not by equating the powers of the  

officer sought to be equated with a police officer but from the power he  

possesses from the perception of the common public to assess his capacity to  

influence,  pressure or  coercion on persons who are searched,  detained or  

arrested. The influence exercised has to be, assessed from the consequences  

that a person is likely to suffer in view of the provisions of the Act under  

which he is being booked. It, therefore, follows that a police officer is one  

who:-

(i) is  considered  to  be  a  police  officer  in  “common  parlance”  keeping into focus the consequences provided under the Act.

(ii) is  capable  of  exercising influence or  authority  over  a  person  from whom a confession is obtained.

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35. We would also like to point out that Mr. Sushil Kumar Jain had  

referred to the provisions of the Police Act as well to support his submission.  

The preamble of the Police Act, 1861 (Act 5 of 1861), which is an Act for  

the regulation of a group of officers who come within the meaning of the  

word “police” provides”

“Whereas  it is expedient to re-organize the police and to make  it a more efficient instrument for the prevention and detection  of crime, it is enacted as follows.”

He argued that from the above, it can be seen that the primary  

object  of  any  police  establishment  is  prevention  and  detection  of  crime  

which  may  be  provided  for  under  the  Indian  Penal  Code  or  any  other  

specific law enacted for dealing with particular offences and bring the guilty  

to  justice.  It  was  submitted by him that  if  special  authorities  are  created  

under special enactments for the same purpose i.e. prevention and detection  

of crime, such authorities would be “Police and have to be understood in the  

said perspective. Sections 23 and 25 of the said Act lay down the duties of  

the police officers and Section 20 deals with the authority and provides that  

they can exercise such authority as provided under the Police Act and any  

Act  for  regulating  criminal  procedure.  Section  5(2)  of  the  Criminal  

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Procedure Code provides that  “all  offences under any other law shall  be  

investigated, inquired into, tried and otherwise dealt with according to the  

same provisions, 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.

36. On the strength of  these provisions,  the argument of  the learned  

Counsel for the petitioner was that persons categorized as “police officers”  

can do all the activities and the statute gives them the power to enable them  

to  discharge  their  duties  efficiently.  Of  the  various  duties  mentioned  in  

Section  23,  the  more  important  duties  are  to  prevent  the  commission  of  

offences and public nuisances and to detect and bring offenders to justice  

and to apprehend all persons whom the police officer is legally authorized to  

apprehend. It is clear, therefore, in view of the nature of the duties imposed  

on  the  police  officer,  the  nature  of  the  authority  conferred  and  also  the  

purpose of the Police Act, that the powers which the police officers enjoy  

are powers for the effective prevention and detection of crime in order to  

maintain law and order. According to the learned Counsel, a comparison to  

the powers of the officers under the provisions of the NDPS Act makes it  

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clear that the duties and responsibilities of the officers empowered under the  

Act are comparable to those of the police officers and, therefore, they ought  

to be construed as such. It is submitted that the primary objective of a NDPS  

Officer is to detect and prevent crime defined under the provisions of the act  

and thereafter the procedure has been prescribed to bring the offenders to  

justice. Thus, the officers under the Act are “Police Officers” and statements  

made to such officers are inadmissible in evidence.  

37. He also drew our attention to the following pertinent observation of  

this Court in the case of State of Punjab v. Barkat Ram; (1962) 3 SCR 338.  

“Section  5(2)  of  the  Code  of  Criminal  Procedure  also  contemplates investigation of,  or inquiry into, offences under  other  enactments  regulating  the  manner  or  place  of  investigation, that is, if an act creates an offence and regulates  the manner and place of investigation or inquiry in regard to the  said offence, the procedure prescribed by the Code of Criminal  Procedure will give place to that provided in that Act. If the  said  Act  entrusts  investigation  to  an  officer  other  than  one  designated  as  police  officer,  he  will  have  to  make  the  investigation  and not  the police officer.  In  this  situation,  the  mere  use  of  the  words  "police  officer"  in  section 25of  the  Evidence  Act  does  not  solve  the  problem,  having  regard  to  permissible rules of interpretation of the term "police officer" in  that section. It may mean any one of the following categories of  officers  :  (i)  a  police officer  who is a member of  the police  force constituted under the Police Act; (ii) though not a member  of the police force constituted under the Police Act, an officer  

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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.  

41. As far as this second related issue is concerned we would also like to  

point out that Mr. Jain argued that provisions of Section 67 of the Act cannot  

be interpreted in the manner in which the provisions of Section 108 of the  

Customs Act  or Section 14 of the Excise Act had been interpreted by number  

of judgments and there is a qualitative difference between the two sets of  

provisions. In so far as Section 108 of the Customs Act is concerned, it gives  

power  to  the  custom officer  to  summon  persons  “to  give  evidence”  and  

produce documents.  Identical  power  is  conferred upon the Central  Excise  

Officer under Section 14 of the Act. However, the wording to Section 67 of  

the NDPS Act is altogether different. This difference has been pointed out by  

Andhra  Pradesh High Court  in  the Case  of  Shahid  Khan vs.  Director  of   

Revenue Intelligence; 2001 (Criminal Law Journal) 3183.

42. The  Registry  is  accordingly  directed  to  place  the  matter  before  

Hon’ble the Chief Justice for the decision of this appeal by a larger Bench  

after considering the issues specifically referred as above.  

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43. We find from the record that as against  the sentence of 10 years  

awarded to  the appellant  he has  already undergone more than 9 years  of  

sentence.  In these circumstances,  we deem it  a fit case to suspend further  

sentence till the disposal of this appeal by the larger Bench. The appellant  

shall  be released on bail  on furnishing security in the sum of Rs.50,000/-  

(Rupees  Fifty  Thousand)  with  two  sureties  of  the  same  amount,  to  the  

satisfaction of the trial court.

…………………………….J. [A.K. PATNAIK]

…………………………….J. [A.K. SIKRI]

New Delhi, October 8, 2013

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