NDPS Act: Supreme Court overturns conviction of one accused, upholds the other in drug possession case (30 April 2024)

Introduction

Date of the Judgment: 30 April 2024
Citation: 2024 INSC 351
Judges: Justice Sandeep Mehta and Justice Prasanna Bhalachandra Varale

Can a statement given to a Narcotics Control Bureau (NCB) officer be used as evidence in court? The Supreme Court of India recently addressed this crucial question in a case involving the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The court examined the legality of a conviction based on statements made to NCB officers and the proper procedures for search and seizure under the NDPS Act. This case highlights the importance of following due process and the admissibility of evidence in drug-related cases. The judgment was delivered by a two-judge bench comprising Justice Sandeep Mehta and Justice Prasanna Bhalachandra Varale.

Case Background

On January 30, 2003, the Narcotics Control Bureau (NCB) received a tip about two individuals planning to deliver contraband at the Kheda ST Bus Stand between 4:30 pm and 5:00 pm. The informer described the suspects and their clothing, also mentioning that the drugs were received from one Adilkhan and were to be delivered to a third person. An NCB team, including Intelligence Officer Deepak Pareek (PW-2) and two independent witnesses, Manubhai (PW-1) and Amit R. Dantani, went to the bus stand. They saw two men matching the description. One man, later identified as Anwarkhan (A-1), was holding a bag. He handed it to the other man and started walking towards the exit. The NCB team apprehended Anwarkhan with the bag but the other man escaped. The bag contained two polythene bags with 2 kg and 30 grams of suspected contraband. Due to the public nature of the location, the team moved to a nearby PWD Guest House to complete the seizure, sampling, and sealing procedures. Three samples were taken from each bag and sealed. Anwarkhan was issued a summons under Section 67 of the NDPS Act, his statement was recorded, and he was arrested. During the investigation, the second suspect, Firdoskhan (A-2), was tracked down by the Madhya Pradesh Police. He was brought to the NCB office in Ahmedabad on February 9, 2003, where he was served a summons under Section 67 of the NDPS Act, his statement was recorded, and he was also arrested. The samples tested positive for heroin/brown sugar. A complaint was filed against both accused in the Sessions Court, Nadiad, which was later transferred to the Fast Track Court.

Timeline:

Legal Framework

The case revolves around the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Key provisions include:

• Section 8(c) of the NDPS Act: This section prohibits the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use, or consumption of any narcotic drug or psychotropic substance, except for medical or scientific purposes and as per the conditions of a license, permit, or authorization.
• Section 21 of the NDPS Act: This section specifies the punishment for contravention in relation to manufactured drugs and preparations.
• Section 29 of the NDPS Act: This section addresses the punishment for abetment and criminal conspiracy in relation to offences under the NDPS Act.
• Section 42 of the NDPS Act: This section outlines the procedure for entry, search, seizure, and arrest without warrant or authorization. It states that if an officer has reason to believe that an offence has been committed, they must take down the information in writing and send a copy to their immediate superior.
• Section 43 of the NDPS Act: This section deals with the power of seizure and arrest in a public place.
• Section 50 of the NDPS Act: This section provides that when an officer is about to search a person, they must inform the person of their right to be searched before a Gazetted Officer or a Magistrate.
• Section 67 of the NDPS Act: This section empowers officers to call for information and record statements.

The Supreme Court also considered the implications of Article 20(3) of the Constitution of India, which protects individuals from being compelled to be a witness against themselves.

Arguments

Appellants’ Submissions:

• Non-compliance with Section 42 of the NDPS Act: The appellants argued that the NCB officer did not forward a copy of the secret information to his superior, violating Section 42(2) of the NDPS Act.
• Violation of Section 50 of the NDPS Act: The appellants contended that Anwarkhan (A-1) was not given the option to be searched before a Magistrate or Gazetted Officer.
• Lack of Independent Witness: The appellants claimed that the witness Manubhai (PW-1) was not independent because he was previously working in the Income Tax Department where one of the NCB officials was also working.
• Doubtful Identification of Firdoskhan (A-2): Firdoskhan (A-2) was not arrested at the scene, his name was not in the seizure memo, and he was identified in court for the first time by witness Vikram Ratnu (PW-3) without a Test Identification Parade.
• Contradictory Statement of Vikram Ratnu (PW-3): The appellants highlighted that Vikram Ratnu (PW-3) stated that the contraband was found unattended in Ahmedabad, suggesting it was planted.
• Inadmissibility of Statements under Section 67 of the NDPS Act: The appellants argued that the statements recorded under Section 67 of the NDPS Act cannot be used as evidence, citing the Supreme Court judgment in Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1].

Respondents’ Submissions:

• Independent Witness: The respondents argued that Manubhai (PW-1) was an independent witness and not a stock witness just because he was working in Income Tax Department.
• Reliable Evidence: The respondents contended that the testimonies of Deepak Pareek (PW-2) and Vikram Ratnu (PW-3) were trustworthy and that they had no reason to falsely implicate the accused.
• Identification of Accused: The respondents stated that Vikram Ratnu (PW-3) identified Firdoskhan (A-2) as the person who escaped from the spot.
• Explanation of Discrepancy: The respondents clarified that the statement of Vikram Ratnu (PW-3) about the contraband being found unattended was a mistake and that the witness corrected it later.
• Proof Beyond Doubt: The respondents argued that the prosecution had proven the case against both accused beyond all reasonable doubt.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court addressed the following issues:

1. Whether the search and seizure proceedings were vitiated due to non-compliance with the mandatory procedure under Section 42 of the NDPS Act?
2. Whether the search and seizure proceedings were vitiated due to non-compliance with Section 50 of the NDPS Act?
3. Whether the conviction of Firdoskhan (A-2) can be sustained based on the evidence on record?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

• Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1] – Supreme Court of India
  • The Supreme Court held that confessional statements recorded under Section 67 of the NDPS Act are inadmissible as evidence.

The Supreme Court considered the following legal provisions:

• Section 8(c) of the NDPS Act – Prohibits the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use, or consumption of any narcotic drug or psychotropic substance.
• Section 21 of the NDPS Act – Specifies the punishment for contravention in relation to manufactured drugs and preparations.
• Section 29 of the NDPS Act – Addresses the punishment for abetment and criminal conspiracy in relation to offences under the NDPS Act.
• Section 42 of the NDPS Act – Outlines the procedure for entry, search, seizure, and arrest without warrant or authorization.
• Section 43 of the NDPS Act – Deals with the power of seizure and arrest in a public place.
• Section 50 of the NDPS Act – Provides that when an officer is about to search a person, they must inform the person of their right to be searched before a Gazetted Officer or a Magistrate.
• Section 67 of the NDPS Act – Empowers officers to call for information and record statements.
• Article 20(3) of the Constitution of India – Protects individuals from being compelled to be a witness against themselves.

Authorities Considered by the Court

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court heavily relied on Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1]* to hold that confessional statements recorded under Section 67 of the NDPS Act are inadmissible as evidence.
• The Court interpreted Section 42 of the NDPS Act to determine that it applies to enclosed places, not public places.
• The Court interpreted Section 43 of the NDPS Act to determine its applicability to searches in public places.
• The Court interpreted Section 50 of the NDPS Act to determine its applicability to personal searches.
• The Court interpreted Section 67 of the NDPS Act in light of the Tofan Singh judgment to determine the admissibility of confessional statements.
• The Court considered Article 20(3) of the Constitution of India to understand the protection against self-incrimination.

What weighed in the mind of the Court?

The Supreme Court’s decision was significantly influenced by the need to ensure procedural fairness and protect individual rights. The court emphasized the importance of following due process under the NDPS Act and the inadmissibility of confessional statements as per Tofan Singh (supra). The court’s reasoning also highlighted the need for reliable evidence and the importance of independent witnesses in search and seizure procedures. The court was particularly concerned about the lack of proper identification of Firdoskhan (A-2) and the reliance on a statement that was inadmissible in law.

Fact:Law Ratio

The court’s decision was influenced more by legal considerations (60%) than factual aspects (40%). This is evident from the emphasis on the interpretation of the NDPS Act and the reliance on the Tofan Singh precedent.

Logical Reasoning

Issue 1: Non-compliance with Section 42 of the NDPS Act

Issue 2: Non-compliance with Section 50 of the NDPS Act

Issue 3: Conviction of Firdoskhan (A-2)

Key Takeaways

• Confessional Statements under Section 67 of the NDPS Act: Statements recorded under Section 67 of the NDPS Act are inadmissible as evidence, as per the ruling in Tofan Singh (supra).
• Application of Section 42 of the NDPS Act: Section 42 of the NDPS Act applies to searches in enclosed places, not public places.
• Application of Section 50 of the NDPS Act: Section 50 of the NDPS Act applies to personal searches, not searches of bags or other items.
• Importance of Independent Witnesses: The court emphasized the importance of having independent and reliable witnesses in search and seizure procedures.
• Reliability of Identification: Identification of an accused in court for the first time, without a prior Test Identification Parade, may be deemed unreliable.

Directions

The Supreme Court gave the following directions:

• The Criminal Appeal No. 2045 of 2010 filed by Anwarkhan (A-1) was dismissed. His bail bonds were cancelled, and he was directed to surrender before the trial court within 30 days to serve the remaining part of his sentence.
• The Criminal Appeal No. 2044 of 2010 filed by Firdoskhan (A-2) was allowed. His conviction was quashed, and he was acquitted of all charges. His bail bonds were discharged.

Specific Amendments Analysis

There is no specific amendment analysis in the judgment.

Development of Law

The ratio decidendi of this case is that confessional statements recorded under Section 67 of the NDPS Act are inadmissible as evidence, and that the procedural requirements of Section 42 and Section 50 of the NDPS Act must be strictly followed. This judgment reinforces the principles laid down in Tofan Singh (supra) and clarifies the scope of application of various sections of the NDPS Act. This case also emphasizes the importance of reliable evidence and proper identification procedures in criminal trials.

Conclusion

The Supreme Court upheld the conviction of Anwarkhan (A-1) while overturning the conviction of Firdoskhan (A-2). The court emphasized the inadmissibility of confessional statements under Section 67 of the NDPS Act as per the Tofan Singh (supra) judgment. The court also clarified that Section 42 of the NDPS Act applies to enclosed places, not public places, and that Section 50 applies to personal searches. The judgment highlights the importance of following due process and having reliable evidence in drug-related cases. The Supreme Court’s decision underscores the need for strict adherence to legal procedures and the protection of individual rights in criminal proceedings.