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Saturday, October 31, 2020

Drugs case: When does an statement by an accused become admissible in a trial?

One of those arrested in the Bollywood drugs case has said he was forced to falsely implicate Karan Johar. Rhea Chakraborty has retracted the statements on the basis of which other actors have been questioned. A lot hinges on what the Supreme Court says in another, unrelated case.

Written by Sadaf Modak , Edited by Explained Desk | Mumbai | Updated: October 5, 2020 10:07:59 am
Explained: Police and Judicial custody in context of Rhea ChakrabortySo far, 20 accused have been arrested in the drugs case, including Rhea Chakraborty.

A former executive producer of Dharmatic Entertainment, the sister concern of Karan Johar’s Dharma Productions, told a Mumbai court on Sunday (September 27) that he was made to sign a statement against his will by senior officials of the Narcotics Control Bureau (NCB).

Kshitij Prasad also told the court that he was forced to falsely state that Johar and some others consume drugs.

The NCB has denied the accusations. It has said that the investigation was being carried out in a professional manner, and that Prasad was not cooperating with the investigators.

So far, 20 accused have been arrested in the drugs case which the NCB is probing. Some of the accused, including actor Rhea Chakraborty, have told the court that they were coerced into giving self-incriminatory confessions, and have retracted from them.

What is ‘self-incrimination’?

One of the methods employed by investigating agencies to collect evidence in a criminal investigation is interrogation of the accused. However, a safeguard in criminal law across the world, specified also in the International Covenant on Civil and Political Rights, states that no person charged with a criminal offence can be compelled to testify against herself, or to confess guilt. This is often referred to as the right to remain silent or the right against self-incrimination.

A common reference about this in popular culture is the “Miranda rights” or “Miranda warning”. It refers to the law in the United States after a 1966 Supreme Court case ‘Miranda vs Arizona’, which makes it obligatory for police to inform a person in custody that they have the right to remain silent, and that anything they say can be used against them in court.

In India, Article 20(3) of the Constitution states: “No person accused of any offence shall be compelled to be a witness against himself.”

This means that an accused cannot be forced by an investigating agency to give a confession or any information which may establish their involvement in an offence, or that of others.

What is the law in India on confessions by accused?

The Indian Evidence Act, 1872, states that confessions obtained through inducement, threat, or promise are irrelevant in a criminal proceeding.

Any statement made before the police is inadmissible as evidence as per the Act.

A voluntary confession by an accused can be given only before a magistrate under Section 164 of the Criminal Procedure Code. This is to ensure that police do not force statements out of accused in their custody through threats, violence, and harassment.

The magistrate who records the confession is expected to inform the accused beforehand that she is not bound to give the statement, and that it could be used against her. The magistrate has to ensure that the statement is being given with free will, and that no police officer is present during its recording.

If a statement is retracted subsequently, the courts may rely on them as long as there is other evidence which corroborates the statements.

Also in Explained: Bollywood drugs case: Can the police seize your phone even if you are not an accused?

Is this true of all cases?

Some special Acts, including the now repealed Terrorism and Disruptive Activities(Prevention) Act (TADA) and Prevention of Terrorism Act (POTA), as well as the existing Control of Organised Crime Acts in Maharashtra and Gujarat, permit confessions to be recorded by a police officer above a specified rank.

And what about confessions given in cases involving the Narcotic Substances and Psychotropic Substances (NDPS) Act like the current case involving Rhea Chakraborty and others?

Section 67 of the Act gives an officer the power to call for information from any person or examine him during an inquiry. However, the provision has seen differing judgments and opinions over the years.

One argument is that the official given this power under the NDPS Act should be treated as a ‘police officer’, and such statements should not be admissible as evidence.

The contrary opinion is that Section 67 does not state that the officer is a ‘police officer’; hence the statement can be treated as a confession and be relied upon as evidence.

In 2013, the Supreme Court in ‘Tofan Singh vs State of Tamil Nadu’ considered these arguments. The court said that the term ‘police officer’ is not defined under the Evidence Act or the Criminal Procedure Code, and its meaning ought to be assessed from the “perception of the common public”, and from whether the person concerned “is capable of exercising influence or authority over a person from whom a confession is obtained”.

The court referred the case to a larger Bench for consideration of these issues. Arguments before a Bench of Justices R F Nariman, Navin Sinha, and Indira Banerjee were concluded on September 16, and the order has been reserved.

Can the statements given by Chakraborty, the ex-staffer of Dharmatic Entertainment, and other accused be relied upon in this case?

In the drugs case, the NCB has said that during the investigation, a link was established from statements given by accused persons including Chakraborty.

However, she and a few others have told a court that they were coerced into giving these statements, and have retracted them.

But these statements are the basis for the summoning of others, including actors Sara Ali Khan, Shraddha Kapoor, and Rakul Preet Singh, who were called in for questioning.

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The Supreme Court order could determine the status of these statements, and whether they can be admissible during the trial eventually.

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