Supreme Court of India
RAJ KUMAR KARWALversusUNION OF INDIA AND ORS.
- Citation
- 1990 INSC 98
- Decided
- 21 March 1990
- Disposal
- Dismissed
- Bench
- A M AHMADI
Holding
An officer invested under a special statute with powers analogous to those of a police officer but without the power to file a report under Section 173 of the Code of Criminal Procedure is not a ‘police officer’ within the meaning of Section 25 of the Evidence Act.
Summary
The Department of Revenue Intelligence (DRI) intercepted a truck carrying a large quantity of hashish and, during the investigation, obtained confessional statements from Raj Kumar Karwal and Kirpal Mohan Virmani. The appellants argued that these statements should be excluded under Section 25 of the Evidence Act because the DRI officers, invested with powers under Section 53 of the Narcotic Drugs & Psychotropic Substances Act, 1985, were “police officers”. The Division Bench of the Delhi High Court held that the DRI officers did not possess the attributes of an officer‑in‑charge of a police station, particularly the power to file a report under Section 173 of the Code of Criminal Procedure, and therefore the statements were admissible. The Supreme Court affirmed this view, emphasizing that an officer under a special law is not a “police officer” for the purposes of Section 25 unless he can submit a charge‑sheet/report under Section 173. Consequently, the confessional statements were not barred by Section 25 and the appeal and special leave petition were dismissed.
Issues considered
- Whether officers of the Department of Revenue Intelligence, invested with powers under Section 53 of the Narcotic Drugs & Psychotropic Substances Act, qualify as ‘police officers’ within the meaning of Section 25 of the Evidence Act.
- Whether confessional statements made to such officers are inadmissible under Section 25 of the Evidence Act.
Legislation cited
- Central Excise & Salt Act, 1944s. 21(2)
- Code of Criminal Procedure, 1973s. 154, s. 156, s. 173, s. 190
- Customs Act, 1962
- Indian Evidence Act, 1872s. 25, s. 26, s. 27
- Narcotic Drugs & Psychotropic Substances Act, 1985s. 36A(d), s. 52, s. 52A, s. 53
Subjects
narcotic drugsconfessional statementsEvidence Actpolice officer definitionSection 53admissibilityspecial courtinvestigation powers
Judgment
RAJ KUMAR KARWAL A
v.
., UNION OF INDIA AND ORS .
WITH
KIRPAL MOHAN VIRMANI B
v.
STATE AND ANR.
MARCH 21, 1990
(
[A.M. AHMADI AND M. FATHIMA BEEVI, JJ.)
G
-" Narcotic Drugs & Psychotropic Substances Act, 1985: Sections
36A(d), 52, 52A, 53-Whether Officers of Department of Revenue
Intelligence invested with powers under section 53 are "police officers'
...._..J._ within the meaning of section 25 of the Evidence Act.
D
The officers of the Department of Revenue Intelligence (DRI)
intercepted one truck. On search, a large quantity of hashish was
recovered. In the course of investigation the names of the appellant and
the petitioner surfaced. Both of them made confessional statements to
the DRI officials.
E
Complaints were lodged against the appellant and the petitione1
/" under the Narcotic Drugs &.Psychotropic Substances Act, 1985 and the
Customs Act, 1962. On their applying for enlrgement on bail, the self-
incriminating statements made by them to the DRI officials were used
.-:- ·-- against them by the prosecution. The appellant and the petitioner
,. argued before the Single Judge of the High Court hearing the hail
applications that the said statements were uot admissible in evidence in
F
view of section 25 of the Evidence Act. The learned Single Judge refer-
~ ~ red the question of admissibility of the confessional statements to the
Division Bench which concluded that the officials of the ORI invested
with powers under section 53 of the Narcotic Act did not possess any of
the attributes of an officer-in-charge of a police station conducting an G
investigation under Chapter XII of the Code of Criminal Procedure.
Against this decision of the Division Bench, the appellant and the
petitioner have appealed to this Court.
_,.,
"
It was contended before this Court on behalf of the appellant and
the petitioner that : (I) the expression 'police officer' used in section 25 H
63
64 . SUPREME COURT REPORn I1990] 2 S.C.R.
of the Evidence Act must not be read in the narrow sense of only those
A
officers belonging to the regular police force but must be construed
broadly to include .all those who have been invested with powers of the
police in the matter of investigation of a penal offence; (2) when such
extensive powers are conferred on the officers appointed under the Act
and the consequences are so drastic, it is desirable that the protection of
B section 25, Evidence Act, should be extended. to persons accused of the
commission of any crime punishable under the Narcotic Act; (3) since
the Act does not prescribe the procedure for investigation, the officers
invested with power under section 53 of the Act must necessarily resort \
to the procedure under Chapter XH of the Code of Criminal Procedure, 1
1973 which would ·require them to culminate the investigation by sub-
mitting a report under section 173 of the Code, and (4) since the officers
c referred to in section 53 have been invested with all the powers of an
officer-in-charge of a police station for investigation of offences under
the. Narcotic Act, they have all the attributes of a police officer
investigating a crime under Chapter XII of the Code of Criminal Proce-
dure, 1973 and would, therefore, fall within the expression "police
D officer" in section 25 of the Evidence Act.
Dismissing the appeal and the special leave petition, this Court,
HELD: (1) Section 25, Evidence Act, engrafts a wholesome pro-
tection. It must not, therefore, be construed in a narrow and technical
E sense but must be understood in a broad and popular sense. But at the '°'·
same tme it cannot be construed in so wide a sense as to include persons
on whom only some of the powers exercised by the police are conferred
within the category of police officers. [73B-CJ
Balbir Singh v. State of Haryana, J.T. 1987 l SC 210; The State of
F Punjab v. Barkat Ram, Jl962] 3 SCR 338 at 347 and Raja Ram Jaiswal
v. State of Bihar, (1964] 2 SCR 752 at 761, referred to.
(2). Even if an officer is invested under any special law with pow-
ers analogous to those exercised by a police officer in charge of a police
G station investigating a cognizable offence, he does not thereby become a
police officer under Section 25, Evidence Act, unless re has the power
to lodge a report under Section l7Jofthe Code. [76C]
Badku Joti Savant v. State of Mysore, (1966) 3 SCR 698; Ramesh
Chandra Mehta v. State of West Bengal, (1969] 2 SCR 461; Illias v.
H Collector of Customs, Madras, (1969) 2 SCR 613; State of U.P. v.
R.K. KARWAL v. U.0.1. 65
Durga Prasad, [1975] I SCR 81 and Balkishan A. Devidayal v. State of
A
Maharashtra, [1981] l SCR 175, referred to.
(3) The role of the officers effecting arrest or seizure, except in
the case of a police officer, ends with disposal of the person arrested and
the article seized in the manner provided by sections 52 and 52A of the
Act. Section 57 obliges the officer making the arrest or seizure to report B
the same to his superior within 48 hours. These powers are more or less
similar to the powers conferred on Customs Officers under the Customs
Act, 1962. [SOF-G I
.
.J
(4) The important attribute of police power is not only the power
to investigate into the commission of cognizable offence but also the
power to prosecute the offender by filing a report or a charge-sheet
c
under section 173 of the Code. [81H; 82A]
(5) There is nothing in the provisions of the Act to show that the
legislature desired to vest in the officers appointed under section 53 of
the Act, all the powers of Chapter XII, including the power to submit a D
report under Section 173 of the Code. [82C-D]
(6) Section 36A (l)(d) of the Act makes it clear that if the investi-
gation is conducted by the police, it would conclude in a police report
but if the investigation is made by an officer of any other department
including the DRI, the Special Court would take cognizance of the E
offence upon a formal complaint made by such authorised officer of the
concerned Government. [82F-G I
(7) The Division Bench is right in holding that a confessional or
self-incriminating statement made by a person accused of having com-
mitted a crime under the Narcotic Act to an officer invested with t!E F
power of investigation under section 53 of the Act was not hit by section
25 of the Evidence Act. [67G]
Mahesh v. Union of India, (1988] l F.A.C. 339; Mangal Singh v.
The State of Gujarat, [1988] 2 F.A.C. 173; Radha Kishan Marwari v.
King Emperor, (1933] I.L.R. 12 Patna 46 and Sheikh Ahmed v. Em- G
peror, [1927] I.L.R. 51Bombay78, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 449 of 1989.
From the Judgment and Order dated 7.12.1988 of the Delhi High H
66 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
CourtinCr.Rev.No.170of1987.
A
WITH 'y"
Special Leave Petition (Cr!.) No. 55 of 1988.
B From the Judgment and Order dated 7.12.1988 of the Delhi High
Court in Cr!. Misc. (M) No. 1451of1987.
A.K. Sen, Kapil Sibal, Anil Dev Singh, Har1inder Singh, R.N. \.
Joshi, Ms. Kamini Jaiswal (NP), Mrs. Sushma Suri, A.K. Srivastava --l
and S.C. Agarwala for the appearing parties.
c The Judgment of the Court was delivered by
AHMADI, J. Are the officers of the Department of Revenue
Intelligence (DRI) who have been invested with the powers of an ,
_).-
'-~
officer-in-charge of a police station under Section 53 of Narcotic Drugs
D & Psychotropic Substances Act, 1985 (hereinafter called 'the Act'),
"police officers" within the meaning of Section 25 of the Evidence
Act? If yes, is a confessional statement recorded by such officer in the
course of investigation of a person accused of an offence under the said
Act, admissible in evidence as against him? These are the questions
which we are called upon to answer in these appeals by special leave.
E ,.._
These are the facts, ~riefly stated. A motor truck DEL 3124 was
intercepted on July 12, 1986 near Calcutta by the DRI officials. On
search a large quantity of hashish weighing about 743 Kgs. found con-
cealed in machines loaded in the said truck was recovered. The ~
machinery was meant to be exported to Saudi-Arabia and the United ~
;
F Kingdom by M/s. Northern Exports (Importers, Exporters and Com-
mission Agents) and M/s. Modem Machinery and Instruments, both
of New Delhi. After the hashish was found hidden in the machines
loaded in the said vehicle, the same was ·attached under a seizure
memo. Joginder Singh and Shivraj Singh, the drivers of the vehicle,
were apprehended on the spot by the DRI officials.
G
The disclosure made by these two drivers led to the search of a
Farm House at Khasra No.417, Gadaipur, Mehrauli, New Delhi on
the 13th/14th and 15th of July, 1986. In the course of the said search ;....._
hashish weighing about 976 Kgs. was recovered from the machines ·
lying in the said premises and a further quantity of 365 Kgs. was
H recovered from Gunny bags which were secreted underground in the
R.K. KARWAL v. U.0.1. [AHMADI. J.J 67·
out-house of the Farm House. The DRI officials learnt in the course of
A
investigation that the said hashish was to be exported through M/s.
Lee Muirhead (I) Ltd., and M/s. Shiekh and Pandit, of Calcutta.
Mohan Lal Pandit and Tushar Pandit, the partners of the said two
firms, respectively, were arrested. One Subhash Narang who was
arrested by the DRI officials implicated the appellant Kirpal Mohan
Virmani. ln the course of investigation the name of the other appellant B
Raj Kumar Karwal also surfaced. Both these persons made confes-
sional statements to the DRI officials in the course of investigation.
/
j- On the conclusion of the investigation a complaint was lodged
against the said two persons under Sections 21, 23, 29 and 30 of the Act
and Section 135A of the Customs Act, 1962. The appellants now stand
committed to tbe Court of Sessions for trial. On the appellants apply- c
ing for enlargement on bail under Section 439 of the Code of Criminal
Procedure, 1973 ('the Code' hereinafter), the self-incriminating state-
ments made by the appellants to the DRI officials were used against
' them by the prosecution to establish a prima-facie case and to prevent
their enlargement on bail. The appellants argued that the said state- D
ments were not admissible in evidence in view of Section 25 of the
Evidence Act which provides that no confession made to a police
officer shall be proved as against a person accused of any offence. The
question which arose for consideration was whether DRI officials
invested with powers under Section 53 of the Act could be said to be
"police officers" within the meaning of Section 25, Evidence Act, so as E
,>.
to place the confessional statements recorded by them beyond the
reach of the prosecution. The learned. Single Judge of the Delhi High
Court before whom the bail applications came· up for hearing felt that
the question of admissibility of the confessional statement was of vital
•
'
and far-reaching importance and since it was likely to· arise in a
number of such cases it was desirable that it be answered by a larger
bench. Accordingly, the question was referred to a Division Bench
F
which concluded that. the officials of the DRI invested with powers
under Section 53 of the Act do not possess any of the attributes of an
officer-in-charge of a police station conducting an investigation under
Chapter XII of the Code. The High Court held that a confessional or
self-incriminating statement made by a person accused of having com- G
mitted a crime under the Act to an officer invested with the power of
investigation under Section 53 of the Act was not hit by Section 25 of
the Evidence Act. After so answering the question, the learned fodges
,,.le
constituting the Division Bench sent back the matter for disposal in
, accordance with law to the learned Single Judge. It is against this
conclusion reached by the Division Bench of the High Court that the
appellants are before us.
H
68 SUPREME COURT REPORTS [1990] 2 S.C.1<..
Section 25 of the Evidence Act reads as under:
A
"No confession made to a police officer shall be proved as
against a person accused of any offence."
(Emphasis supplied).
B Thus .a confession made to a police officer cannot be used or tendered
in evidence as against a person accused of any offence. Section 26 next
provides that no confession made by any person whilst he is in the
~
custody of a police officer, unless it be made in the immediate
\
presence of a Magistrate, shall be proved as against such person. Sec-
tion 27, which is in the nature of an exception to Sections 25 and 26,
+
C provides that, when any fact is deposed to as discovered in consequence
of information received from a person accused of any offence, in the
custody of a police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby
discoered, may be proved. The restriction on admissibility of a confes-
sion of an accused person imposed by Sections 25 and 26 of the
D Evidence Act, when made to a police officer and not in the immediate
presence of a Magistrate, is as a matter of public policy designed to
prevent the practice of securing confessional statements of persons in
police custody by means of threats, inducements, torture, coercion,
etc. what impelled the introduction of this provision was the
overwhelming evidence which disclosed that the powers vested in the
E police under the Code were often misused and abused by police offi-
cers investigating crimes for extorting a confessional statement from
the accused with a view to earning credit for the prompt solution of the
crime and/or to secure himself against allegations of supineness or
neglect of duty. It was also realised that once a police officer succeeds
in extorting a confession from the person accused of the commission of
F the crime by threats, inducements, etc., the real offender becomes
more or less immune from arrest. Therefore, the purpose of the res-
triction under Section 25 of the Evidence Act, is broadly speaking,
two-fold, namely, (i) to protect the person accused of a crime from
third degree treatement and, more importantly, (ii) to ensure a proper
and scientific investigation of the crime with a view to bringing the real
G culprit to book.
It was, therefore, argued by the counsel for the appellants that
the expression "police officer" used in Section 25 must not be read in
the narrow sense of only those officers belonging to the regular police
force but must be construed broadly to include all those who have been
H invested with powers of the police in the matter of investigation of a
R.K. KARWAL v. U.0.1. [AHMADI, J.l 69
penal offence. Since Section 25 engrafts a rule of public policy aoo is
A
designed to protect a person accused of commission of a crime from
third degree treatment or inducements or fraud, counsel argued,
confessional statements obtained by such officers exercising police
powers, though not belonging to-regular police force, should also be
excluded from being tendered in evidence against such an accused
person. Counsel submitted that since the officers referred to in Section B
53 have been invested with all the powers of an officer-in-charge of a
police station for investigation of offences under the Act, they have all
the attributes of a police officer investigating a crime l!nder Chapter
..
I
XII of the Code and would, therefore, fall within the expression
"police officer" in Section 25 of the Evidence Act. To buttress this
submission our attention was invited to Section 2 (xxix) of the Act
which says that words and expressions used in the Act but not defined c
will have the same meaning as is assigned to them in the Code. Since
the word 'investigation' is not defined in the Act, counsel submitted,
that we must look to Section 2(h) of the Code which defines the said
expression to include all proceedings under the Code for the collection
of evidence conducted by a police officer. Section 4(2) of the Code D
next provides that all offences under any other law, i.e., other than the
Indian Penal Code, 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. It was argued that since the Act does not regulate the E
manner of investigation, the investigation must be made in accordance
with the provisions in that behalf contained in Chapter XII of the
Code; it must,_therefore, be assumed that the officer investigating the
crime under the Act is a "police officer", properly so called, and any
confessioal statement made to such an officer must be rendered inad-
missible in evidence when the maker thereof is accused of having F
committed an offence. To appreciate the submissions made by counsel
for the appellants it is necessary to understand the scheme of the Act.
We may at once examine the scheme of the Act. Before the
enactment of the Act, statutory control over narcotic drugs was exer-
cised through certain State and Central enactments, principally G
through the Opium Act, 1856, the Opium Act. 1878, the Dangerous
Drugs Act, 1930, etc. However, with the increase in drug abuse and
illicit drug traffic certain deficiencies in the existing Jaws surfaced
which made it necessary for Parliament to enact a comprehensive
legislation sufficiently stringent to combat the challenge posed by drug
traffickers. India had participated in the second International Opium H
70 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
A Conference held at Geneva in 1925 which adopted the convention
relating to dangerous drugs. To give effect to the obligations under-
taken by the Government of India by signing and ratifying the said
convention, the Dangerous Drugs Act, 1930 came to be enacted to
vest in the Central Government the control over certain operations
concerning dangerous drugs. Article 25 of the Universal Declaration
B of Human Rights, 1948, and Article 12 of the International Covenant
on Economical, Social and Cultural Rights, 1966, reflect the concern
of the international community for the protection of the individuai's
right to the enjoyment of the highest attainable standards of physical
and mental health. The other International Conventions which promp-
ted the legislation are set out in Section 2(ix) of the Act. Besides, one
C of the primary duties of the Government under our Constitution is
improvement of public health. inter a/ia, by prohibiting the consump-
tion of intoxicating drinks and drugs injurious to health. The Act was,
therefore, enacted, as is evident from its Preamble, inter a/ia, to make
stringent provisions for the control and regulation of operations relat-
ing to narcotic drugs and psychotropic substances and to provide for
D deterrent punishment, including the forfeiture of property derived
from or used in illicit traffic of such drugs and substances.
The Act is divided into VI Chapters accommodating 83
Sections. Chapter I contains the short title of the Act. definitions of
various terms and expressions used therein and provisions enabling
E addition to and omission from the list of psychotropic substances.
Chapter II entitled 'authorities & officers' empowers the Central as
well as the State Government to make appointments of certain offic-
ers. etc. for the purposes of the Act. The newly added Chapter IIA
provides for the Constitution of a national fund for control of drug
abuse. Provision for the prohibition, control and regulation on cultiva-
F tion, production, manufacture, etc., of any narcotic drug or psy-
chotropic substance is to be found in Chapter III. Chapter IV defines
the offences punishable under the Act and prescribes the penalities
therefor. Needless to say that the punishments prescribed are very
severe. In some cases the minimum punishment is 10 years with fine
.. _.
extending to Rs.2 lacs and above. By a recent amendment death
G penalty is prescribed for certain offences committed by persons after a
previous conviction. Provision for rebuttable presllill'tion of mens-
rea-culpable mental state-is also made under Section 35 and Special
Courts are envisaged by Sections 36 and 36A for the trial of offences
punishable under the Act. Every offence punishable under the Act is cl...
made cognizable by virtue of Section 37., notwithstanding the provi-
H sions of the Code. Then comes Chapter V which outlines the proce-
R.K. KARWAL v. U.0.l. [AHMADI, J.] 71
dure to be followed by the officers appointed for the implementation
of the various provisions of the Act. Sub-section (1) of Section 51 A
empowers a Metropolitan Magistrate or a Magistrate of the First Class
' or a Magistrate of the Second Class, specially empowered, to issue a
warrant for the arrest of any person suspected of having committed
any offence punishable under the provisions of Chapter IV of the Act
and for the search of any premises, conveyance or .Place in which .such B
person is suspected of having kept or concealed any narcotic drug or
psychotropic substance. Sectfons 41(2), 42, 43, and 44 confer on offi-
cers named under Act the powers of arrest, search and seizure without
.. ,J
any order or warrant from the concerned Magistate. We will refer to
these provisions in some detail when we discuss the impact thereof
r
- hereafter.
Power to stop, rummage and search any conveyance or goods
c
carried in any conveyance or on any animal is conferred by Section 49.
Section 51 provides that all warrants issued and arrests, searches and
.-->--
seizures made shall be governed by the provisions of the Code unless
such provisions are not consistent with the provisions of the Act. D
Next comes Section 53 which we consider proper to reproduce at
this stage. It reads as under:
"Section 53: Power to invest officers of certain depart-
ments with powers of an officer-in-charge of a police E
"- 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
"'
I
central excise, narcotics, customs, revenue intelligence or
Border Security Force or any class of such officers with the
F
powers of an officer-in-charge of a 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 G
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."
""' Section 53A, inserted by Act 2 of 1989, makes a statement made and
signed by a person before any officer empowered under Section 53 for H
72 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
investigation of offences, during the course of such investigation,
A
relevant in certain circumstances e.g., when the maker of the state-
ment is dead or cannot be traced or is incapable of giving evidence or is y
kept away by the opposite party or whose presence cannot be secured
without delay or when he is examined as a witness in the case. Section
54 permits raising of a rebuttable presumption against an accused in a
B trial for any offence under the Act to the extent permitted by clauses
(a) to (d) thereof. Section 55 enjoins upon an officer-in-charge of a
police station to take charge of and keep in safe custody any article
seized under the Act and made over to him. Section 57 enjoins upon \
the officer making an arrest or effecting seizure under the Act to make +
a full report thereof to his immediate superior within 48 hours. Section
58 provides the punishment for vexatious entry, search, seizure or
c arrest. Section 67 empowers an authorised officer to call for informa-
tion or require any person to produce or deliver any document or thing
useful or relevant to the enquiry or examine any person acquainted
with the facts and circumstances of the case. The newly added Chapter
VA deals with forfeiture of property derived from and used in illicit
D traffic of drugs, etc. The last Chapter VI contains miscellaneous
provisions.
The scheme of the Act clearly shows that the Central Govern-
ment is charged with the duty to take all such measures as it deems
necessary or expedient for preventing and combating the abuse of
E narcotic drugs (Section 2(xiv) and psychotropic substances (Section
2(xxiii) and the menance of illicit traffic (Section 2(viiia) therein As
pointed out earlier Chapter IV defines the offences and prescribes the
punishments for violating the provisions of the Act. We must
immediately concede that the punsihments prescribed for the various ·--...
offences under the Act are very severe e.g., Sections 21 and 23 pre- "'(
F scribe the punishment of rigorous imprisonment for a term which shall
not be less than ten years but which may extend to twenty years and
shall also be liable to fine which shall not be less than one lakh rupees
but which may extend to two lakh rupees, Section 29 which makes
abetment an offence prescribes the punishment provided for the
offence abetted while Section 30 prescribes the punishment which is
G one half of the punishment and fine for the principal offence. In addi-
tion thereto certain presumptions, albeit rebuttable, are permitted to
be raised against the accused. Counsel for the appellants, therefore,
argued that when such extensive powers are conferred on the officers
appointed under the Act and the consequences are so drastic, jt is
desirable that the protection of Section 25, Evidence Act, should be
H extended to persons accused of the commission of any crime punish-
R.K. KARWAL v. U.0.1. [AHMADI, J.J 73
able under the Act. In this connection our attention was drawn to the
A
observations of this Court in Balbir Singh v. State of Haryana, J.T.
1987 1 S.C. 210 wherein it is emphasised that when drastic provisions
are made by a statute the duty of care on the authorities investigating
the crime under such law is greater and the investigation must not only
be thorough but also of a very high order. We, therefore, agree that as
Section 25. Evidence Act, engrafts a wholesome protection it must not B
be construed in a narrow and technical sense but must be understood
in a broad and popular sense. But at the same time it cannot be
J construed in so wide a sense as to include persons on whom only some
-l · of the powers exercised by the police are conferred within the category
of police officers. See The State of Punjab v. Barkat Ram, [1962) 3
SCR 338 at 347 and Raja Ram Jaiswal v. State of Bihar, [1964) 2 SCR
752 at 761. This view has been reiterated in subsequent cases also. c
The question then is whether the expression "police officer",
even if liberally construed, would take in its fold officers of other
departments including the DRI invested with powers under Section 53
of the Act. According to the view taken by the Bombay High Court in o
Sheikh Ahmed v. Emperor, [1927) I.LR. 51 Bombay 78 they perhaps
would, but not if the view expressed by the Patna High Court in Radha
Kishan Marwari v. King Emperor, [933) I.LR. 12 Patna 46 prevails.
These two lines of thought have been the subject matter of scrutiny by
this Court in a few subsequent cases. We will presently refer to them.
E
In the case of Barkat Ram this Court was called upon to consider
whether Customs Officers to whom confessional statements were
made could be said to be police officers within the meaning of Section
25, Evidence Act. On behalf of the prosecution it was argued that the
mere tact that certain powers of arrest, search,. seizure and recording of
evidence have been conferred on such officers, where contravention of F
the provisions of the statute is complained of, is not sufficient to make
them police officers under Section 25 of the Evidence Act. The respon-
dents on the other hand contended that officers on whom such powers
are conferred are in fact police officers, no matter by what name they
are called. This Court, by majority, pointed out that.the primary func-
tion of the police under the Police Act, 1861, is prevention and detec- G
tion of crime while the Customs Officers are mainly interested in the
- detection and prevention of smuggling of goods and safeguarding the
recovery of customs duties, i.e., they are more concerned with the
goods and customs duty, than with the offender. After referring to the
provisions of the various statutes including Section 5(2) of the Old
Code (now Section 4(2). This Court held at pages 364-365 as under: H
74 SUPREME COURT REPORTS [1990) 2 S.C.R.
"The foregoing consideration of the case law and the
A statutory provisions yields the following results: The term
'police officer' is not defined in the Evidence Act, or, as a y
matter of fact, in any other contemporaneous or sub-
sequent enactment. The question, therefore, falls to be
decided on a fair construction of the provisions of s. 25 of
ll the Evidence Act, having reprd to the history of tlie legis-
lation and the meaning attributed to that term in and about
the time when s. 25 of the Evidence Act came to be
inserted therein. If a literal meaning is given to the term I
'police officer' indicating thereby an officer designated as
police officer, it will lead to anomalous results. An officer
+
designated as a police officer, even though he does not
c discharge the well understood police functions, will be hit
by s. 25 of the Evidence Act, whereas an officer not so
designated but who has all the powers of a police officer
would not be hit by that section; with the result;the object
of the section would be defeated. The intermedi_ate posi-
D tion, namely, that an officer can be a police officer only if
powers and duties pertaining to an officer in charge of a
police station within the meaning of the Code of Criminal
Procedure are entrusted to him, would also lead to an
equally anomalous position, for, it would exclude from its
operation a case of an officer on whom specific powers and
functions are conferred under specific statutes without
reference to the Code of Criminal Procedure does not
define a 'police officer' and s. 5(2) thereof makes the pro-
cedure prescribed by the Code subject to the procedure
that may be prescribed by any specific Act. This construc-
tion would make the provisions of s. 25 of the Evidence Act
F otiose in respect of officers on whom specific and incon-
trovertible police powers are conferred. But the third posi-
"'
I
tion would not only carry out the intention of the Legisla- , .. ..__
ture, but would also make the section purposive and useful
without doing any violence to the language of the section.
A police officer within the meaning of s. 25 of the Evidence
G Act may be defined thus: An officer, by whatever designa-
tion he is called, on whom a statute substantially confers
the powers and imposes the duties of the police is a police
officer within the meaning of s. 25 of the Evidence Act."
In the final analysis this Court held that the lluties of the Customs
H Officer were substantially different from those of the police and
R.K. KARWAL v. U.0.1. [AHMADI, J.] 75
merely because they possessed certain powers having similarity with
those of police officers, cannot make them police officers within the A
meaning of Section 25 of the Evidence Act.
In the case of Raja Ram Jaiswal, the undisputed facts were that a
motor car was intercepted by an Excise Inspector and searched. On
search five bundles of non-duty paid Napali charas were found and B
seized. The Excise Inspector recorded the statements of all persons
found in the car including the appellant. The admissibility of the appel-
lant's statement, was challenged on the ground that it was hit by Sec-
tion 25, Evidence Act, This Court, by majority, (Raghubar Dayal, J.)
dissenting, laid down the test in the following words:
"The test for determining whether such a person is a 'police c
officer' for the purpose of s. 25 of the Evidence Act would,
in our judgment, be whether the powers of a police officer
which are conferred on him or which are exercisable. by him
because he is deemed to be an officer in charge of a police
station establish a direct or substantial relationship with the D
prohibition enacted by s. 25 that is, the recording of a
confession. In our Words, the test would be whether the
powers are such as would tend to facilitate the obtaining by
him of a confession from a suspect or a delinquent. If they
do, then it is unnecessary to consider the dominant purpose
for which he is appointed or the question as to what other E
powers he en joys"
Applying this test this Court concluded that the Excise Inspector, who
recorded the appellant's confessional statement was in fact a police
officer, properly so-called, within the meaning of that expression in
Section 25, Evidence Act. F
Both these decisions came up for consideration before a bench
consisting of five learned Judges of this Court in Badku Joti Savant v.
State of Mysore, [1966] 3 S.C.R. 698. In that case the appellant was
found in possession of contraband gold when his house was raided and
searched in the presence of panches on November 27, 1960. The appel- G
lant was arrested on November 30, 1960 and'his statement was reduced
to writing and his signature was obtained thereon. In the course of his
>- statement he admitted knowledge about the existence of the con-
traband goods. Two questions arose for determination, the first
related to the interpretation of Section 167(81) of the Sea Customs Act
.and the second touched the point of admissibility of the confessional H
76 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
A statement in view of Section 25, Evidence Act. This Court distin-
guished Raja Ram Jaiswal's case and held that the facts of the case on
hand were more in accord with the case of Barkat Ram. Accordingly,
it held that the Central Excise Officer was not a police officer under
Section 25 of the Evidence Act. This Court while dealing with the
submission based on Section 21(2) of the Central Excise & Salt Act,
B 1944, observed that even though this sub-section confers on the Cent-
ral Excise Officer the same powers as an officer-in-charge of a police
station investigating a cognizable case "It does not, however, appear
that a Central Excise Officer under the Act has power to submit a \
~-
charge-sheet under Section 173 of the Code ...... ". Thus the ratio of
the decision appears to be that even if an officer is invested under any
special law with powers analogous to those exercised by police officer
C in charge of a police station investigating a cognizable offence, he does
not thereby become a police officer under Section 25, Evidence Act,
unless he has the power. to lodge a report under Section 173 of the
Code.
O In Ramesh Chandra Mehta v. State of West Bengal, [1969] 2
S.C.R. 461 a bench of five learned Judges held:
" . . . . . . the test for determining whether an officer of
customs is to be deemed a police officer is whether he is
invested with all the powers of a police officer qua investi-
E gation of an offence, including the power to submit a
report, under s. 173 of the Code of Criminal, Procedure. It
is not claimed that a Customs Officer exercising power to
make an enquiry may submit a report under s. 173 of the
Code of Criminal Procedure".
F Inllliasv. Collector of Customs, Madras, [1969]2S.C.R. 613the
same bench was required to consider if Customs Officials under the
Customs AcP, 1962, were police officers within the meaning of Section
25. Evidence Act. This Court referred to all the cases discussed
hereinbefore and finally approved the test laid down in Badku Joli
Savant and reiterated in Ramesh Chandra Mehta. ·
G
In State of U.P. v. Durga Prasad, [1975] 1SCR881, the question
for consideration was whether an enquiry under Section 8(1) of the
Railway Property (Unlawful Posssession) Act, 1966, is an investiga-
tion under the Code; if yes, whether statements recorded in the course
of investigation are hit by Section 162 of the Code and if such state-
H ments are confessional in nature can they be admitted in evidence in
R.K. KARWAL v. U.0.1. [AHMADI, J.] 77
view of Section 25, Evidence Act. This Court observed at pages 886- A
887 as under:
"The rigbt and duty of an investigating officer to file a
police report or a charge-sheet on the conclusion of investi-
gation is the hallmark of an investigation under the Code.
Section 173(1)(a) of the Code provides that as soon as the B
investigation is completed the officer in-charge of the
police station shall forward to a Magistrate empowered to
take cognizance of the offence on a police report, a report
_,I in the form prescribed by the State Government. The
officer conducting an inquiry under section 8(1) cannot
initiate court proceedings by filing a police report as is
evident from the two provisos to section 8(2) of the Act .
c
. . . . . . . . . . On the conclusion of an enquiry under section
8(1), therefore, if the officer of the Force is of the opinion
that there is sufficient evidence or reasonable ground of
suspicion against the accused, he must file a complaint D
under section 190(1)(a) of the Code in order that the
Magistrate concerned may take cognizance of the offence.
Thus an officer conducting an inquiry under section 8(1) of
the Act does not possess all the attributes of an officer-in-
charge of a police station investigating a case under Chap- E
ter XIV of the Code. He possesses but a part of those
attributes limited to the purpose of holding the inquiry".
In a more recent case, Balkishan A. Devidayal etc. v. State of
Maharashtra etc., (1981] 1 SCR 175 the question which arose for
', determination was whether an Inspector of the Railway Protection
Force enquiring into an offence under Section 3 of the Railway Pro-
F
perty (Unlawful Possession) Act, 1966, can be said to be a "police
officer" under Section 25, Evidence Act. This Court, after a review of
the case law, concluded at page 201 as under:
"In the light of the above discussion, it is clear that an G
officer of the RPF conducting an enquiry under Section
8(1) of the 1966 Act has not been invested with all the
powers of an officer-in-charge of a police station making an
investigation under Chapter XIV of the Code. Particularly,
he has no power to initiate prosecution by filing a charge-
sheet before the Magistrate concerned under Section 173 of H
78 SUPREME COURT REPORTS [1990] 2 S.C.R.
the Code, which has been held to be the clinching attribute
A
of an investigating 'police officer'. Thus, judged by the test
laid down in Badku Jyoti Savant's which has been consis- y
tently adopted in the subsequent decisions noticed above,
Inspector Kakade of the RPF could not be deemed to be a
'police officer' within the meaning of Section 25 of the
B Evidence Act ........... "
Keeping in view the law laid down by this Court in the decisions
referred to above. we may now proceed to apply the test in the context \
of the provisions of the Act. We have noticed that Section 37 makes -l-
every offence punishable under the Act cognizable notwithstanding
anything contained in the Code. Section 41(1) empowers a Magistrate
c to issue a warrant for the arrest of any person suspected of having
committed any offence under, Chapter IV, or for the search of any
building, conveyance or place in which he has reason to believe any
narcotic drug or psychotropic substance or any document or other ,_J_~
article is kept or concealed. Section 41(2) empowers certain gazetted
D officers of central excise, narcotics, customs, revenue intelligence,
etc., of the Central Government or the Border Security Force, or any
such officer of the revenue, excise, police, drug control, or other
departments of the State Governments empowered by general or
special orders in this behalf to issue an authorisation for the arrest of
any person believed to have committed an offence or for the search of
E any building, conveyance or place whether by day or by night in which -~
/
the offending drug or substance or article is kept or concealed. Section
42 enables certain officers duly empowered in this behalf by the Cent-
ral or the State Governments to enter into and search any building,
conveyance or enclosed place between sunrise and sunset without any
warrant or authorisation, if there is reason to believe from personal ~
----
F knowledge or information given any person and reduced to writing,
that any narcotic drug or psychotropic substance inrespect of which
such an offence has been committed or any doeun'lent or other article
which may furnish evidence of the commission of such offence has
--
been kept or concealed therein and seize the same. The proviso
requires that the concerned officer must record the grounds of his
G belief before exercising power under the said provision. Sub-section
(2) of section 42 enjoins upon an officer taking down the information
or recording grounds for his belief to forward a copy thereof to his
immediate superior. Section 43 confers on any officer of any of the -L
departments mentioned in Section 42, power to seize in any public
place or in transit, any narcotic drug or psychotropic substance, in
H respect of which he has reason to believe an offence punishable under
R.K. KARWAL v. U.0.1. [AHMADI, J.] 79
Chapter IV has been committed, and along therewith any animal or
A
conveyance or article liable to confiscation under the Act and any
document or other article which furnishes evidence of the commission
of the offence relating to such drug or substance. Power is also confer-
red on such an officer to detain and search any person whom he has
reason to believe to have committed an offence under Chapter IV and
if such person has any narcotic drug or psychotropic substance in his B
possession and such possession appears to him unlawful, arrest him,
and any other person in his company. By Section 44 the provisions of
I Sections 41, 42 and 43 are made applicable in relation to offences con-
• cerning coca plant, opium poppy or cannabis plant. Where it is not
practicable to seize any goods (including standing crop) liable to con-
-- fiscaton, any officer duly authorised under Section 42 is empowered to
serve on the owner or person in possession of the goods, an order that
he shall not remove, part with or otherwise deal with the goods.except
c
with the previous permission of such officer. Section 48 confers on the
Magistrate or any officer of the gazetted rank empowered under Sec-
tion 42, power of attachment of crop illegally cultivated. Section 49
empowers any officer authorised under Section 42, if he has reason to D
suspect that any animal or conveyance is, or is about to be, used for the
transport of any narcotic drug or psychotropic substance in respect of
which he suspects that any provision of the Act has been, or is being,
or is about to be contravened, to stop such animal or conveyance and
rummage and search the conveyance or part thereof; examine and
search any goods on the animal or in the conveyance and use all lawful E
means for stopping it and where such means fail, the animal or con-
veyance may be fired upon. Section 50 enjoins upon the officer who is
about to search any person, if such person so requires, to take him
~-· without unnecessary delay to the nearest gazetted officer 0£ any of the
departments mentioned in Seotion 42 or to the nearest Magistrate.
Then comes Section 51 which says that the provisions of the Code shall F
.apply, insofar as they are not inconsistent with the provisions of the
--- - Act, to all warrants issued and arrests, searches and seizures made
under the Act. On a plain reading of the section it is clear that if there
is any inconsistency between the provisions of the Act and the Code,
the former will prevail. Section 52 deals with the disposal of persons
arrested and articles seized under Sections 41, 42, 43 or 44 of the Act. It G
enjoins upon the officer arresting a person to inform him of the
grounds for his arrest. It further provides that every person arrested
and article seized under warrant issued under sub-section ( 1) of Sec-
tion 41 shall be forwarded without unnecessary delay to the Magistrate
by whom the warrant was issued. Where, however, the arrest or
seizure is effected by virtue of Sections 41(2), 42, 43 or 44 the Section H
80 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
en joins upon the officer to forward the person arrested and the article
A
seized to the officer-in-charge of the nearest police station or the
officer empowered to investigate under Section 53 of the Act. Special
provision is made in Section 52A in regard to the disposal of seized
narcotic drugs and psychotropic substances. Then comes Section 53
which we have extracted earlier. Section 55 requires an officer-in-
B charge of a police station to take charge of and keep in safe custody,
pending the orders of the Magistrate, all articles seized under the Act
within the local area of that police station and which may be delivered
to him. Section 57 enjoins upon any officer making an arrest or effect-
-~
ing seizure under the Act to make a full report of all the particulars of
such areest or seizure to his immediate official superior within 48 hours
next after such arrest or seizure. These provisions found in Chapter V
c 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
D offences under the Act.
The Act was enacted for the control and regulation of operations
relating to narcotic drugs and psychotropic substances. Under Sections
41, 42, 43, 44 and 49 of the Act certain powers of arrest, search and
seizure have been conferred on certain officers of different depart-
E men ts. If the arrest or seizure is made pursuant to a warrant issued
under Section 41(1), the person arrested or the article seized has to be
forwarded to the Magistrate with despatch. If the arrest or seizure is
made under Sections 41(2), 42, 43 or 44 the person arrested or the
article seized has to be forwarded to the officer-in-charge of the
nearest police station or the officer empowered under Section 53 of the
----
F Act. Special procedure has been prescribed for the disposal of narcotic
drugs and psychotropic substances having regard to the factors set out in
Section 52A. The role of the officers effecting arrest or seizure, except
in the case of a police officer, ends with the disposal of the person
arrested and the article seized in the manner provided by Section 52
and 52A of the Act. Section 57 obliges the officer making the arrest or
G seizure to report the same to his superior within 48 hours. These
powers are more or Jess similar to the powers conferred on Customs
Officers under the Customs Act, 1962.
For the offences under the Act, the investigation is entrusted to
officers in whom powers of an officer-in-charge of a police station are
H vested by a notification issued under Section 53 of the. Act by the
R.K. KARWAL v. U.0.1. [AHMADI, J.] 81
concerned Government. Thus a special investigating agency is created A
to investigate the commission of offences under the Act. There is no
doubt that the Act creates new offences, empowers officers of certain
departments to effect arrest, search and seizure, outlines the proce-
dure therefore, provides for a special machinery to investigate these
offences and provides for the constitution of Special Courts for the
trial of offences under the Act, notwithstanding anything contained in B
the Code. But, argued learned counsel for the appellants, the officers
empowered to investigate under Section 53 of the Act must of neces-
/ sity follow the procedure for investigation under Chapter XII of the
J
Code, since the Act does not lay down its own procedure for investiga-
tion. By virtue of Section 51 of the Act, the provisions of the Code
- would apply since there is uo provision in the Act which runs counter
to the provisions of the Code. It was said that since the term 'investiga-
tion' is not defined by the Act, the definition thereof found in Section
c
2(h) of the Code must be invoked in view of Section 2(xxix) of the Act
------......_ - which in terms states that words and expressions used in the Act but
not defined will carry the meaning assigned of them, if defined in the
Code. Section 2(h) of the Code, which defines 'investigation' by an D
inclusive definition means all proceedings under the Code for collec-
tion of evidence conducted by a police officer or by any person
authorised by a magistrate in this behalf. Under Section 4(2) of the
Code all offences under any other law have to be investigated,
inquired into, tried and otherwise dealt with according to the provi-·
sons contained in the Code. However, according to Section 5, nothing E
contained in the Code shall, unless otherwise provided, affect any
special or local law or any special jurisdiction or power conferred, or
any special form of procedure prescribed, by any other law for the time
being in force. The power to investigate is to be found in Chapter XII
of the Code which begins with Section 154 and ends with Section 176.
The scheme of this Chapter is that the law can be set in motion in F
regard to a cognizable offence on receipt of information, written or
·-~ oral, by the officer-in-charge of a police station. Once such informa-
tion is received and registered, Section 156 empowers any officer-in-
charge of the police station to investigate the same without any
magisterial order. The investigation which so commences must be
concluded, without unnecessary delay, by the submission of a report G
under Section 173 of the Code to the concerned Magistrate in the
prescribed form. Any person on whom power to investigate under
Chapter XII is conferred can be said to be a 'police officer', no matter
by what name he is called. The nomenclature is not important, the
content of the power he exercises is the determinative factor. The
important attribute of police power is not only the power to investigate H
82 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
A into the commission of cognizable offence but also the power to prose-
cute the offender by filing a report or a charge-sheet under Section 173
of the Code. That is why this Court has since the decision in Badku Joti
Savant accepted the ratio that unless an officer is invested under any
special law with the powers of investigation under the Code, including
the power to submit a report under Section 173, he cannot be
B described to be a 'police officer' under Section 25, Evidence Act.
Counsel for the appellants, however, argued that since the Act does not
prescribe the procedure for investigation, the officers invested with
power under Section 53 of the Act must necessarily resort to the proce-
dure under Chapter XII of the Code which would require them to
culminate the investigation by submitting a report under Section 173 of
+
c the Code. Attractive though the submission appears at first blush, it
cannot stand close scrutiny. In the first place as pointed out earlier
there is nothing in the provisions of the Act to show that the legislature
-
desired to vest in the officers appointed under Section 53 of the Act,
all the powers of Chapter XII, including the power to submit a report
D under Section 173 of the Code. But the issue is placed beyond the pale
of doubt by sub-section (1) of Section 36A of the Act which begins
with a non-obstante clause-notwithstanding anything contained in
the Code-and proceeds to say in clause (d) as under:
"36-A(d): a Special Court may, upon a perusal of police
report of the facts constituting an offence under this Act or
E upon a complaint made by an officer of the Central
Government or a State Government authorised in this
behalf, take cognizance of that offence without the accused
being committed to it for trial."
This clause makes it clear that if the investigation is conducted by the
F police, it would conclude in a police report but if the investigation is
made by an officer of any other department including the DRI, the
Special Court would take cognizance of the offence upon a formal
complaint made by such authorised officer of the concerned Govern-
ment. Needless to say that such a complaint would have to be under
Section 190: of the Code. This clause, in qur view, clinches the matter.
G We must, therefore, negative the contention that an officer appointed
under Section 53 of the Act, other than a police officer, is entitled to
exercise 'all' the powers under Chapter XII of the Code, including the
power to submit a report or charge-sheet under Section 173 of the
Code. That .being so, the case does not satisfy the ratio of Badku Joti
H Savant and subsequent decisions referred to earlier.
R.K. KARWAL v. U.0.1. [AHMADI, J.] 83
ln view of the above discussion we are of the opinion that the A
view taken by the Delhi High Court in the impugned Judgment, which
is in accord with the view taken by the Allahabad High Court in
Mahesh v. Union of India, [1988) 1 F.A.C. 339 and the Gujarat High
Court in Mangal Singh v. The State of Gujarat, [1988) 2 F.A.C. 173, is
unassailable and must be upheld. We, therefore, see no merit in the
B
appeal as well as the special leave petition and hereby dismiss them.
R.S.S. Appeal and Petition dismissed.
I
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