LexKANHAIYALAL versus UNION OF INDIA AND ORS.
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[2008] 1 S.C.R. 350 A KANHAIYALAL \/. ' UNION OF INDIA AND ORS. (Crl. A. No. 788 of 2005) B JANUARY 9, 2008 [ALTAMAS KABIR AND B. SUDERSHAN REDDY, JJ.] Narcotic Drugs and Psychotropic Substances Act, 1985 :r - ss. 67 r/w 42 & 53 - Statement made by accused under ~ c s. 67 - Extent up to which, it can be relied upon, for conviction under the Act - Bar under ss.24 to 27 of the Evidence Act, if attracted - Held: An officer for purposes of s. 67 rlw s. 42, is not a police officer- Hence, bar under ss. 24 to 27 of the Evidence Act is not attracted - Statement by person directed to appear D before the officer concerned may be relied upon as a confessional statement against such person - Evidence Act, 1872 - ss.24 to 27. The questions which arose for consideration in the . ~ instant appeal are: 1) Upto what extent can a statement E of accused made under s.67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 be relied upon for convicting a person accused of having committed an offence under provisions of the Act; and 2) Whether such a statement would attract the bar of ss. 24 to 27 of the F Evidence Act. Dismissing the appeal, the Court '.r· HELD: 1.1. A parallel may be drawn between the provisions of s. 67 of the Narcotic Drugs and Psychotropic G Substances Act, 1985 and ss. 107 and 108 of the Customs Act and to a large extent s.32 of the Prevention of Terrorism Act, 2002 and s.15 of the Terrorist and Disruptive Activities 1~ (Prevention) Act, 1987. These are all special Acts meant to deal with special situations and circumstances. While H the provisions of the Prevention of Terrorism Act, 2002, 350 KANHAIYALAL v. UNION OF INDIAAND ORS. 351 and TADA Act, 1987, are much more stringent and excludes A ~ from its purview the provisions of ss. 24 to 27 of the Evidence Act with regard to confession made before a police officer, the provisions relating to statements made during inquiry under the Customs Act and under the NDPS Act are less stringent and continues to attract the B provisions of the Evidence Act. In the case of both the latter enactments, initially an inquiry is contemplated " during which a person may be called upon to provide any ' information relevant to the inquiry as to whether there has ~been any contravention of the provisions of the Act or c any Rule or Order made thereunder. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him he could be made an accused subsequently. What is important is whether the statement made by the D person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long • as such statement was made by the accused at a time _). when he was not under arrest, the bar under ss. 24 to 27 of the Evidence Act would not operate nor would the E provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play. Even if a person is placed under arrest and thereafter makes a statement which F -~ seeks to incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence. [Para 36] [366-C, D, E, F, G, H; 367-A, B, CJ G 1.2. An officer vested with the powers of an Officer- "i in-Charge of a Police Station under s.53 of the above Act is not a "Police Officer" within the meaning of s.25 of the Evidence Act. A statement made under s.67 of the N.D.P.S. Act is not the same as a statement made under Section H 352 SUPREME COURT REPORTS [2008] 1 S. C.R. A 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made ~ under s. 67 of the N.D.P.S. Act to be used as a confession against the person making it and excludes it from the operation of ss. 24 to 27 of the Evidence Act. There is B nothing on record to suggest that the appellant was compelled under threat to make the statement after he had been placed under arrest which renders such statement inadmissible and not capable of being relied upon in order .) to convict him. On the other hand, there is the evidence • c of PW9 upon which the
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