Are NDPS Officers ‘Police Officers’? Supreme Court Refers Section 67 Confession Question to Larger Bench

The appellant was convicted under Section 8(c) read with Sections 21(c) and 29 of the NDPS Act and sentenced to ten years' rigorous imprisonment; the Madras High Court dismissed his appeal (paras 1-2). The prosecution alleged that 5.250 kg of heroin, meant for export to Sri Lanka, was seized from him and co-accused in a car, the bag being handed over by two co-accused (paras 3-5). In the Supreme Court he contended that the case rested solely on his statement under Section 67, recorded by an officer who also investigated, and that this officer was a ‘police officer’ under Section 25 of the Evidence Act (paras 18-19, 24).

The State relied on Kanhaiyalal and Raj Kumar Karwal, under which a Section 53 officer is not a police officer (paras 21, 27). The Court found that Kanhaiyalal's conclusion rested on observations made "without any detailed discussion or the reasons to support the conclusion arrived at", and that Raj Kumar Karwal had been considered in later cases without approval (paras 28-29). Abdul Rashid applied Raja Ram Jaiswal, and Noor Aga treated a customs officer with station-house-officer powers as a police officer (paras 30-31). Those reasons bear on the NDPS Act, which "is purely penal in nature", unlike the revenue-focused Customs and Central Excise Acts (para 32). Its provisions "have to be strictly construed and the safeguards provided therein have to be scrupulously and honestly followed" (para 33). The crucial test is the "influence or authority" an officer can exercise over the person confessing (para 34). As Nirmal Singh Pehalwan had already doubted Kanhaiyalal, a re-look was necessary (para 38). The Section 67 question is intermixed with whether such a statement falls under Section 161 or Section 164 of the Code (para 40).