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PETITIONER: RAJ KUMAR KARWAL

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.WITHKIRPAL MOHAN VIRMANIV.STATE AND A

DATE OF JUDGMENT21/03/1990

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) FATHIMA BEEVI, M. (J)

CITATION:  1991 AIR   45            1990 SCR  (2)  63  1990 SCC  (2) 409        JT 1990 (1)   503  1990 SCALE  (1)509

ACT:     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’ within the meaning of section 25 of the Evidence Act.

HEADNOTE:     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.     Complaints  were  lodged against the appellant  and  the petitioner  under  the Narcotic DrUgs  &  Psychotropic  Sub- stances Act, 1985 and the Customs Act, 1962. On their apply- ing   for   enlargement  on  bail,   the   selfincriminating 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 bail applications that the said statements  were not  admissible  in evidence in view of section  25  of  the Evidence Act. The learned Single Judge referred the question of  admissibility  of  the confessional  statements  to  the Division Bench which concluded that the officials of the DRI 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 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:  (1)  the  expression ’police officer’ used in section 25 64 of the Evidence Act 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  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

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and  the consequences are so drastic, it is  desirable  that the  protection of section 25, Evidence Act, should  be  ex- tended  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  neces- sarily resort to the procedure under Chapter XH of the  Code of  Criminal  Procedure, 1973 which would  require  them  to culminate  the  investigation by submitting a  report  under section 173 of the Code, and (4) since the officers 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  at- tributes  of  a police officer investigating a  crime  under Chapter  XII  of the Code of Criminal  Procedure,  1973  and would,  therefore, fail within the expression "police  offi- cer" 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 protection. It must not, therefore, 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  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-C]     Balbir  Singh v. State of Haryana, J.T. 1987 1  SC  210; 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, referred to.     (2) Even if an officer is invested under any special law with powers analogous to those exercised by a police officer 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. [76C]     Badku Joti Savant v. State Of Mysore, [1966] 3 SCR  698; Romesh  Chandra Mehta v. State of West Bengal, [1969] 2  SCR 461;  Illias v. Collector of Customs, Madras, [1969]  2  SCR 613; State of U.P. v. 65 Durga Prasad, [1975] 1 SCR 81 and Balkishan A. Devidayal  v. State of Maharashtra, [1981] 1 SCR 175, referred to.     (3)  The role of the officers effecting arrest  or  sei- zure,  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 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. [80F-G]     (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 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  report  under Section 173 of the Code.[82C-D]     (6) Section 36A (1)(d) of the Act makes it clear that if the  investigation  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

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Special  Court would take cognizance of the offence  upon  a formal  complaint  made by such authorised  officer  of  the concerned Government. [82F-G]     (7)  The Division Bench is right in holding that a  con- fessional  or self-incriminating statement made by a  person accused  of having committed a crime under the Narcotic  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. [67G]     Mahesh  v. Union of India, [1988] 1 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. Emperor, [1927] I.L.R. 51  Bombay  78, referred to.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 449 of 1989. ’From  the Judgment and Order dated 7.12.1988 of  the  Delhi High 66 Court in Cr. Rev. No. 170 of 1987. WITH Special Leave Petition (Crl.) No. 55 of 1988.     From  the  Judgment and Order dated 7.12.  1988  of  the Delhi High Court in Crl. Misc. (M) No. 1451 of 1987.     A.K. Sen, Kapil Sibal, Anil Dev Singh, Harlinder  Singh, R.N. Joshi, Ms. Kamini Jaiswal (NP), Mrs. Sushma Suri,  A.K. Srivastava and S.C. Agarwala for the appearing parties. 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 & Psychotropic Substances Act, 1985  (herein- after called ’the Act’), "police officers" within the  mean- ing of Section 25 of the Evidence Act? If yes, is a  confes- sional  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.     These are the facts, briefly stated. A motor truck DEL 3 124  was intercepted on July 12, 1986 near Calcutta  by  the DRI officials. On search a large quantity of hashish  weigh- ing about 743 Kgs. found concealed in machines loaded in the said  truck  was recovered. The machinery was  meant  to  be exported  to  Saudi-Arabia and the United  Kingdom  by  M/s. Northern   Exports  (Importers,  Exporters  and   Commission Agents)  and M/s. Modern Machinery and Instruments, both  of New  Delhi.  After the hashish was found hidden in  the  ma- chines  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.     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 recovered from  Gunny bags which were secreted underground in the 67 out-house of the Farm House. The DRI officials learnt in the

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course  of  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 Kitpal Mohan Virmani.  In the course of investigation the name of the other  appellant Raj  Kumar  Karwal also surfaced. Both  these  persons  made confessional  statements to the DRI officials in the  course of investigation.     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 the  Court  of Sessions for trial. On the appellants applying for  enlarge- ment  on  bail  under Section 439 of the  Code  of  Criminal Procedure, 1973 (’the Code’ hereinafter), the  self-incrimi- nating  statements made by the appellants to the  DRI  offi- cials 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  statements  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  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.  According- ly,  the  question was referred to a  Division  Bench  which concluded that the officials of the DRI invested with powers under  Section 53 of the Act do not possess any of  the  at- tributes  of an officer-in-charge of a police  station  con- ducting 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  committed  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 Judges 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. 68 Section 25 of the Evidence Act reads as under: "No  confession made to a police officer shall be proved  as against a person accused of any offence." (Emphasis supplied). 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, shah be proved as against such person. Section 27, which  is in  the nature of an exception to Sections 25 and  26,  pro- vides  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

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such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The restriction on admissibility of a confession  of an  accused  person  imposed by Sections 25 and  26  of  the 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  confes- sional  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 police  under  the  Code were often misused  and  abused  by police officers investigating crimes for extorting a confes- sional  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  suc- ceeds  in extorting a confession from the person accused  of the  commission of the crime by threats, inducements,  etc., the  real offender becomes more or less immune from  arrest. Therefore,  the purpose of the restriction 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  treatment  and, more importantly, (ii) to  ensure  a proper and scientific investigation of the crime with a view to bringing the real culprit to book.     It was, therefore, argued by the counsel for the  appel- lants  that the expression "police officer" used in  Section 25 must not be read in the narrow sense of only those  offi- cers  belonging  to  the regular police force  but  must  be construed broadly to include all those who have been invest- ed with powers of the police in the matter of  investigation of a 69 penal  offence. Since Section 25 engrafts a rule  of  public policy  and is designed to protect a person accused of  com- mission  of a crime from third degree treatment  or  induce- ments  or  fraud, counsel  argued,  confessional  statements obtained  by such officers exercising police powers,  though not  belonging to regular police force, should also  be  ex- cluded  from  being  tendered in evidence  against  such  an accused  person. Counsel submitted that since  the  officers 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 Act, they have all  the attributes  of a police officer investigating a crime  under Chapter  XII of the Code and would, therefore,  fall  within the  expression "police officer" in Section 25 of  the  Evi- dence  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 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 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 provi- sions,  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  of- fences.  It was argued that since the Act does not  regulate the manner of investigation, the investigation must be  made

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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  confessional statement made to such an officer must be rendered  inadmis- sible  in  evidence  when the maker thereof  is  accused  of having  committed an offence. To appreciate the  submissions made by counsel for the appellants it is necessary to under- stand 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 exercised through certain State and Central  enactments, principally  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 laws surfaced which  made  it necessary  for Parliament to enact a comprehensive  legisla- tion sufficiently stringent to combat the challenge posed by drug  traffickers.  India  had participated  in  the  second International Opium 70 Conference held at Geneva in 1925 which adopted the  conven- tion  relating  to dangerous drugs. To give  effect  to  the obligations undertaken 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  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  individual’s  right  to the enjoyment  of  the  highest attainable  standards  of physical and  mental  health.  The other International Conventions which prompted the  legisla- tion  are set out in Section 2(ix) of the Act. Besides,  one of the primary duties of the Government under our  Constitu- tion is improvement of public health. inter alia, by prohib- iting  the  consumption  of intoxicating  drinks  and  drugs injurious to health. The Act was, therefore, enacted, as  is evident  from  its Preamble, inter alia, to  make  stringent provisions  for  the control and  regulation  of  operations relating  to narcotic drugs and psychotropic substances  and to  provide for deterrent punishment, including the  forfei- ture 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 addition to and omission  from  the list  of psychotropic substances. Chapter II  entitled  ’au- thorities  & officers’ empowers the Central as well  as  the State  Government to make appointments of certain  officers. 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,  con- trol and regulation on cultivation, production, manufacture, etc.,  of any narcotic drug or psychotropic substance is  to be  found  in Chapter III. Chapter IV defines  the  offences punishable  under  the  Act  and  prescribes  the  penalties therefore.  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 penalty is prescribed  for  certain offences  committed by persons after a previous  conviction. Provision  for  rebuttable presumption  of  mensrea-culpable

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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 made cognizable by virtue of Section  37., notwithstanding  the  provisions  of the  Code.  Then  comes Chapter V which outlines the proce- 71 dure to be followed by the officers appointed for the imple- mentation of the various provisions of the Act.  Sub-section (1)  of Section 51 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 person is suspected of having kept  or  con- cealed any narcotic drug or psychotropic substance. Sections 41(2), 42, 43, and 44 confer on officers named under Act the powers  of arrest, search and seizure without any  order  or warrant  from  the concerned Magistrate. We  will  refer  to these  provisions in some detail when we discuss the  impact thereof hereafter.     Power  to  stop, rummage and search  any  conveyance  or goods  carried  in any conveyance or on any animal  is  con- ferred 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  provi- sions are not consistent with the provisions of the Act.     Next comes Section 53 which we consider proper to repro- duce at this stage. It reads as under: "Section 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 Border Security Force or any class of such officers with the 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 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 72 investigation of offences, during the course of such  inves- tigation,  relevant in certain circumstances e.g., when  the maker  of  the statement is dead or cannot be traced  or  is incapable of giving evidence or is 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 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  arrest.  Section  67 empowers  an authorised officer to call for  information  or

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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 traffic of  drugs, etc. The last Chapter VI contains miscellaneous provisions.     The  scheme  of the Act clearly shows that  the  Central Government  is charged with the duty to take all such  meas- ures  as it deems necessary or expedient for preventing  and combating  the abuse of 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 punishments prescribed for  the various  offences under the Act are very severe  e.g.,  Sec- tions 21 and 23 prescribe the punishment of rigorous impris- onment 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  abet- ment  an offence prescribes the punishment provided for  the offence  abetted while Section 30 prescribes the  punishment which is one half of the punishment and fine for the princi- pal  offence.  In  addition  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, it is desirable that the protection of Section 25,  Evidence Act, should be extended to persons accused of the commission of any crime punish- 73 able  under  the Act. In this connection our  attention  was drawn  to the observations of this Court in Balbir Singh  v. State of Haryana, J.T. 1987 1 S.C. 2 10 wherein it is empha- sised 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,  there- fore,  agree  that as Section 25. Evidence Act,  engrafts  a wholesome  protection it must not 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  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. 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.     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 invest- ed with powers under Section 53 of the Act. According to the view  taken  by  the Bombay High Court in  Sheikh  Ahmed  v. Emperor, [1927] I.L.R. 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.L.R. 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.     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

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the  prosecution it was argued that the mere tact that  cer- tain  powers  of arrest, search, seizure  and  recording  of evidence have been conferred on such officers, where contra- vention  of the provisions of the statute is complained  of, is not sufficient to make them police officers under Section 25  of the Evidence Act. The respondents 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  pri- mary  function of the police under the Police Act, 1861,  is prevention and detection 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: 74 "The foregoing consideration of the case law and the  statu- tory  provisions  yields  the following  results:  The  term ’police officer’ is not defined in the Evidence Act, or,  as a matter of fact, in any other contemporaneous or subsequent enactment. The question, therefore, fails to be decided on a fair construction of the provisions of s. 25 of the Evidence Act, having regard to the history of the legislation 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 ’police officer’  indi- cating  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 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 intermediate position, 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  con- ferred under specific statutes without reference to the Code of Criminal Procedure does not define a ’police officer’ and s.  5(2) thereof makes the procedure prescribed by the  Code subject  to  the  procedure that may be  prescribed  by  any specific Act. This construction would make the provisions of s.  25 of the Evidence Act otiose in respect of officers  on whom  specific and incontrovertible police powers  are  con- ferred. But the third position would not only carry out  the intention  of the Legislature, but would also make the  sec- tion 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 Act may be defined thus: An  offi- cer, by whatever designation 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 duties of the Customs  Officer were substantially different from those  of the police and 75 merely because they possessed certain powers having similar- ity  with those of police officers, cannot make them  police

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officers  within the 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 seized. The Excise Inspector  recorded the statements of all persons found in the car including the appellant.  The admissibility of the appellant’s  statement, was challenged on the ground that it was hit by Section  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 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 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 powers he enjoys" Applying  this  test this Court concluded  that  the  Excise Inspector, who recorded the appellant’s confessional  state- ment  was  in  fact a police  officer,  properly  so-called, within  the meaning of that expression in Section  25,  Evi- dence Act.     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  con- traband  gold when his house was raided and searched in  the presence of panches on November 27, 1960. The appellant  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 contraband 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 76 statement  in view of Section 25, Evidence Act.  This  Court distinguished  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, 1944, observed that even though this sub-section confers  on the   Central   Excise  Officer  the  same  powers   as   an officer-in-charge  of a police station investigating a  cog- nizable  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 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.     In Ramesh Chandra Mehta v. State of West Bengal,  [1969] 2 S.C.R. 461 a bench of five learned Judges held:

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"   ......  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  inves- tigation  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".     In  Illias  v. Collector of Customs,  Madras,  [1969]  2 S.C.R.  613  the’  same bench was required  to  consider  if Customs  Officials under the Customs Act, 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 Joti Savant and reiterated in Ramesh Chandra Mehta.     In State of U. P. v. Durga Prasad, [1975] 1 SCR 881, the question  for  consideration was whether  an  enquiry  under Section 8(1) of the Railway Property (Unlawful  Posssession) Act,  1966,  is  an investigation under the  Code;  if  yes, whether  statements recorded in the course of  investigation are  hit by Section 162 of the Code and if  such  statements are confessional in nature can they be admitted in  evidence in 77 view  of  Section 25, Evidence Act. This Court  observed  at pages 886887 as under: "The  fight and duty of an investigating officer to  file  a police report or a charge-sheet on the conclusion of  inves- tigation is the hallmark of an investigation under the Code. Section  173(1)(a) of the Code provides that as soon as  the 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 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.     ..........   On the conclusion of an enquiry under  sec- tion 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 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- incharge  of  a police station investigating  a  case  under Chapter  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 Property (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 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  investi- gation  under Chapter XIV of the Code. Particularly, he  has no  power  to initiate prosecution by filing  a  chargesheet before the Magistrate concerned under Section 173 of 78 the Code, which has been held to be the clinching  attribute

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of  an investigating ’police officer’. Thus, judged  by  the test  laid down in Badku Jyoti Savant’s which has been  con- sistently 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 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 every offence punishable under the Act cognizable notwithstanding anything contained in the Code. Section 41(1) empowers a Magistrate 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 article is kept  or  concealed.  Section 41(2) empowers certain gazetted 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 author- isation  for the arrest of any person believed to have  com- mitted an offence or for the search of any building, convey- ance  or place whether by day or by night in which  the  of- fending  drug or substance or article is kept or  concealed. Section  42 enables certain officers duly empowered in  this behalf by the Central or the State Governments to enter into and  search any building, conveyance or enclosed  place  be- tween  sunrise and sunset without any warrant or  authorisa- tion, if there is reason to believe from personal  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 document  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  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 departments mentioned in Section 42, power  to seize  in any public place or in transit, any narcotic  drug or psychotropic substance, in respect of which he has reason to believe an offence punishable under 79 Chapter  IV  has  been committed, and  along  therewith  any animal or 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 conferred on such an  offi- cer  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 possession and such possession appears to him  unlaw- ful,  arrest  him, and any other person in his  company.  By Section 44 the provisions of Sections 41, 42 and 43 are made applicable  in relation to offences concerning  coca  plant, opium  poppy or cannabis plant. Where it is not  practicable to  seize  any  goods (including standing  crop)  liable  to confiscation,  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

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or  otherwise deal with the goods except with  the  previous permission of such officer. Section 48 confers on the Magis- trate  or any officer of the gazetted rank  empowered  under Section 42, power of attachment of crop illegally  cultivat- ed. Section 49 empowers any officer authorised under Section 42,  if he has reason to suspect that any animal or  convey- ance  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 means for stopping it  and where such means fail, the animal or conveyance 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 of any  of  the departments mentioned in Section 42 or  to  the nearest  Magistrate. Then comes Section 51 which  says  that the provisions of the Code shall 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  en- joins  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 Section 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 80 enjoins upon the officer to forward the person arrested  and the  article 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-incharge 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  en- joins upon any officer making an arrest or effecting seizure under  the Act to make a full report of all the  particulars of such arrest or seizure to his immediate official superior within  48  hours next after such arrest or  seizure.  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.     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 departments.  If the  arrest or seizure is made pursuant to a warrant  issued under  Section  41(1), the person arrested  or  the  article

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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 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  offi- cer  making the arrest or seizure to report 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.     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 vested by  a  notification  issued under Section 53 of the Act by the 81 concerned Government. Thus a special investigating agency is created 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 procedure therefore,  pro- vides 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 the Code. But, argued learned counsel for  the appellants,  the  officers empowered  to  investigate  under Section 53 of the Act must of necessity follow the procedure for  investigation under Chapter XII of the Code, since  the Act  does not lay down its own procedure for  investigation. By  virtue of Section 51 of the Act, the provisions  of  the Code  would  apply since there is no provision  in  the  Act which  runs  counter to the provisions of the Code.  It  was said  that since the term ’investigation’ is not defined  by the Act, the definition thereof found in Section 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 inclusive definition means all proceedings  under the Code for collection of evidence  con- ducted 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 provisions contained in the Code. However, according  to Section  5,  nothing  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 regard to a cognizable offence  on  re- ceipt  of information, written or oral, by  the  officer-in- charge  of  a police station. Once such information  is  re- ceived  and  registered, Section 156 empowers  any  officer- incharge  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 under Section 173 of the Code  to

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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 82 into the commission of cognizable offence but also the power to  prosecute 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, includ- ing  the  power  to submit a report under  Section  173,  he cannot  be 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 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 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-ob- stante  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  upon a complaint made by an officer of the Central  Gov- ernment  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  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  Government. Needless to say that such a complaint would have to be under Section 190 of the Code. This clause, in our view,  clinches the matter. 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 Savant and subsequent decisions referred to earlier. 83     In  view of the above discussion we are of  the  opinion that the 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 appeal as well as the special leave petition and hereby dismiss them. R.S.S.                      Appeal and Petition dismissed. 84

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