Section 108

Doubting Kanhaiyalal and Raj Kumar Karwal, a two-judge Bench referred to a larger Bench whether an NDPS investigating officer is a police officer and whether a Section 67 statement can be treated as a confession (paras 28-29, 38-40). The NDPS Act "is purely penal in nature" (para 32). The appellant's further sentence was suspended and bail granted pending the reference (para 43).

The Supreme Court acquitted a man convicted of carrying two kilograms of heroin because a consent memo that only asked him to choose between a Gazetted Officer and a Magistrate did not inform him of his right under Section 50 of the NDPS Act (paras 9-10, 12). On confessions to Customs officers, the Bench chose to follow Noor Aga rather than Kanhaiyalal (para 11).

The Supreme Court upheld Sections 35 and 54 of the NDPS Act, which reverse the burden of proof, but held that the presumption arises only after the prosecution proves the foundational facts, including possession, beyond reasonable doubt (paras 84, 88-89). It set aside an Afghan airline crew member's conviction for 1.4 kg of heroin: the carton, bulk and samples were never produced, the bulk was destroyed without a Section 52A order, and the customs confession could not alone sustain a conviction (paras 170-171).

The Supreme Court upheld a bullion dealer's conviction for possessing smuggled and undeclared gold. It held that "any person" whom a customs officer may examine under Section 107 of the Customs Act includes a suspect and potential accused, at any place including the Customs House, and that the gold-control penalty covers smuggled gold (paras 3, 15-16). Refusing leniency, it said professional economic offenders deserve jail (paras 18-21).

A five-judge Bench of the Supreme Court held that a customs officer, under the Sea Customs Act, 1878 or the Customs Act, 1962, is not a "police officer" under Section 25 of the Evidence Act, because he cannot submit a report under Section 173 of the Code of Criminal Procedure (paras 4, 9, 24-26). A person questioned or arrested in a customs enquiry is not "accused of an offence" under Article 20(3) until a complaint is filed before a Magistrate (paras 10, 13, 27-28).