Supreme Court has profoundly changed how confessions can be used in narcotics cases

In September, when the controversy about the death of Bollywood actor Sushant Singh Rajput dominated prime time on many news channels, his girlfriend Rhea Chakraborty was arrested by the Narcotics Control Bureau.

Officials alleged that Chakraborty had supplied drugs to Singh. It was speculated that Rajput’s death may have been consequence of drug use. In late August, the investigation agencies leaked information to the media that Chakraborty had confessed to procuring drugs for Singh. But in September, when she applied for bail, she categorically told the special court that she had been coerced into making self-incriminatory statements and was withdrawing them.

Many people unfamiliar with the intricacies wondered why she needed to expressly withdraw her statement. After all, the Code of Criminal Procedure makes it clear that only statements made before a magistrative are admissable as evidence. Statements to the police are not, except for those parts of the statements that lead to the discovery of new facts.

Chakraborty’s move was necessary because of the nature of the Narcotic Drugs and Psychotropic Substances Act, 1985, under which she had been arrested.

Under this special law to deal with the India’s drug problem, a confession made to an officer designated under the Act was deemed admissible in court.

This question of admissibility of claimed confessions under the NDPS Act has been a legal minefield ever since the law was brought into force in 1985. The Narcotics Control Bureau is the Central agency in charge of acting against drugs possession and trafficking. Through the NDPS Act, any official designated by the Centre, or by the state government if the case is investigated at the state level, gets the same powers as a police officer in-charge of a police station.

But the Act led to a curious legal contradiction. When a police officer recorded a confession from a person accused of a crime under the Indian Penal Code, the court would not accept it. However, a statement recorded by the same police officer would be accepted by the court if he or she was specially designated under the NDPS Act.

This is because through the designation, a legal fiction was created as though the official was not a police officer but a only designated official for a special law.

Last week, the Supreme Court put an end to this contradiction. In a judgement that is set to have far reaching consequences for investigations into cases such as those of Chakraborty, a three-judge bench of the court, in a 2:1 majority, held that all officials authorised under the NDPS Act are police officers for legal purposes. Confessional statements to them, the court said in its judgement in a reference from a 2013 case from Tamil Nadu, will not be admissible in court to convict a person.

NDPS and confessions

To understand the importance of the judgement, it is necessary to examine several provisions of the NDPS Act and the Evidence Act.

Firstly, Section 42 of the NDPS Act provides powers to an authorised officer of the Central government or a state government, superior to the rank of a “peon, sepoy or a constable” to enter premises, search it, seize evidence and arrest persons who may have committed an offence under the Act. This officer can also record statements.

In addition, Section 53 allows the Centre and states through a notification in the official gazette to bestow on officials powers equal to an officer in charge of a police station.

The most crucial of all sections relating to confessional statements under the NDPS Act is Section 67. The provision reads thus:

 67. Power to call for information, etc.—Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act,— 

(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; 

(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;

 (c) examine any person acquainted with the facts and circumstances of the case.  

Thus, till now, a statement obtained by the authorised officer from an accused became a confessional statement fully admissible in court. This was because the legal assumption was that such an officer under the NDPS Act was not a “police officer” and not bound by the restrictions placed on police officers under Section 25 of the Evidence Act.

But when a police officer records a statement under Section 161 of the Criminal Procedure Code, only that part of the statemet that leads to the discovery of a new fact unknown to the officer at the time of recording the statement would be allowed to be used in trial. This is a crucial safeguard provided through the Evidence Act to protect the constitutional right of citizen against self-incrimination, given that the police are known to use illegal techniques to obtain confessions.

Supreme Court and NDPS

The majority of judges on the three-judge bench held that the provisions that led to confession statements under the NDPS Act being admissable as evidence violated three key fundamental rights under the Constitution: Article 14, which provides equality before the law; Article 20 (3), which gives a citizen the right against self-incrimination; and Article 21, which provides right to life, dignity and privacy.

The court made a special mention of the right to privacy as it read down the provisions relating to confessional statements.

The judgement written by Justice RF Nariman said:

“It would be remarkable that if a police officer, properly so-called, were to “investigate” an offence under the NDPS Act, all the safeguards contained in sections 161 to 164 of the CrPC would be available to the accused, but that if the same police officer or other designated officer under section 42 were to record confessional statements under section 67 of the NDPS Act, these safeguards would be thrown to the winds, as was admitted by Shri Lekhi in the course of his arguments. Even if any such anomaly were to arise on a strained construction of section 67 as contended for by Shri Lekhi, the alternative construction suggested by the Appellants, being in consonance with fundamental rights, alone would prevail, as section 67 would then have to be “read down” so as to conform to fundamental rights.”

Thus, in a case like Rhea Chakraborty’s, even if the Narcotics Control Bureau claims before the court that she had confessed to the crime, such a confessional statement will not be admissible and will be subjected to the safeguards in the Evidence Act and the Criminal Procedure Code.