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Friday, November 27, 2020

Explained: Significance, impact of SC order on confessions in narcotics cases

The majority judgment ruled that statements recorded by officers under the NDPS Act cannot be treated as confessions. Why is this significant?

Written by Sadaf Modak , Edited by Explained Desk | Mumbai | Updated: November 6, 2020 12:56:52 pm
Rhea Chakraborty is being investigated by the Narcotics Control Bureau (NCB) in connection with an alleged drugs case. (Express Photo: Ganesh Shirshekar)

The Supreme Court has ruled on a long-pending question of law on whether statements recorded under Section 67 of the Narcotics Drugs and Psychotropic Substances (NDPS) Act can be admissible as confessional statements during criminal trials. The majority judgment ruled that statements recorded by officers under the NDPS Act cannot be treated as confessions. The ruling will impact evidence in several cases, including the alleged drugs case being investigated by the Narcotics Control Bureau (NCB) where actor Rhea Chakraborty and 24 others have been named as accused.

Why is the Supreme Court judgment significant?

For over 30 years, multiple court judgments have seen contrary opinion on this point of law – whether officers invested powers under the NDPS Act can be considered “police officers” and therefore, whether statements given to them by accused persons can be considered as confessions.

One argument was that since the officers under Section 53 of the NDPS Act are not defined as “police officers” but are given the powers of an “officer-in-charge of a police station”, confessions given to them should be admissible in evidence. The officers in the specialised anti-drug probe agency, NCB, can be deputed from various departments of the government including Central Excise, Directorate of Revenue Intelligence, Customs.

The contrary opinion states that safeguards available for accused in international and Indian law, including the Constitution also extend to accused under the NDPS Act. This includes any statement given by a person to a police officer cannot be considered as a confession and cannot be enough to prove guilt.

In 2013, the Supreme Court in ‘Tofan Singh vs State of Tamil Nadu’ considered arguments on these points and referred the case to a larger bench for consideration. Arguments before a Bench of Justices R F Nariman, Navin Sinha and Indira Banerjee were concluded on September 16, and the order was reserved. It was delivered on Thursday with a 2:1 majority. While Justices Nariman and Sinha ruled that such statements under the NDPS Act cannot be used as confessional statements, Justice Banerjee has given a dissenting view.

There were many cases before the court against convictions of accused persons based solely on statements recorded by such officials under Section 67 of the NDPS Act. The judgment would clarify whether such statements can be considered as confessions and used to prove the guilt of an accused in many ongoing cases and appeals, including the drugs case being probed by the NCB involving Chakraborty.

Bollywood drugs case: Post SC ruling, 20 statements of accused now not admissible as evidence before court

What did the Supreme Court say?

The majority view by Justices Nariman and Justices Sinha held that confessional statements made before an officer under section 53 of the NDPS Act if held as the basis to convict a person would be “a direct infringement” of constitutional guarantees”. While it was submitted to the court that confessional statements before police officers were considered admissible in other special acts including the now repealed Terrorism and Disruptive Activities (Prevention) Act and Prevention of Terrorism Act (POTA), the court said that they were used with several safeguards contained in the Acts themselves.

The court also held that when a reference is made to “police officers”, it does not only mean a police officer belonging to a state police force but includes officers who may belong to other departments.

Justice Banerjee, in her dissenting view, considered the illicit drug trafficking being an organised crime involving hardened criminals. She said that “over-emphasis on the principles of natural justice in drug-trafficking cases can be a major hindrance to the apprehension of offenders”. Her judgment said that guilty offenders should not be allowed to go scott-free by reason “overemphasis on technicalities”.

What does the judgment mean for ongoing cases, including the one against Rhea Chakraborty and 24 others?

The Supreme Court’s interpretation of the sections pertaining to statements recorded by officers will have an impact on all ongoing cases, appeals and future cases unless it is referred to a larger bench and a different verdict is given. Statements recorded under Section 67 of the NDPS Act before officials of the NCB, for instance, cannot be the sole basis for convicting an accused.

In the case against Chakraborty and 24 others so far, nearly 20 statements recorded under the Section will not remain admissible in law. In the case, most of the accused including Chakraborty had submitted before the court that they wanted to retract any statement claimed to have been made before the NCB officers stating that they were coerced into giving them and were involuntary. The NCB had said in its remand applications that they were led to some of the accused in the case through statements of their co-accused leading to searches and raids. While their defence lawyers, following the Supreme Court judgment, said that the case was only dependent on the statements and hence could not now stand in court, NCB officials said that there is other corroborative evidence. An NCB official said that they will submit evidence like the money trial, whereby an accused is alleged to have made a payment to a drug dealer and other digital evidence. 📣 Express Explained is now on Telegram

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