Sujit - Tiwari - Vs - State - of - Gujarat - 10102018 - GUJHC (FN - 35) J.P-8.15

MANU/GJ/1748/2018
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Special Criminal Application No. 1691 of 2018
Decided On: 10.10.2018
Appellants: Sujit Tiwari
Vs.
Respondent: State of Gujarat
Hon'ble Judges/Coram:
S.G. Gokani, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Virat G. Popat and Adityasinh J. Jadeja
For Respondents/Defendant: Kartik Pandya, Devang Vyas and H.S. Soni, Public
Prosecutor
Case Note:
Criminal - Bail - Sections 37 of the Narcotics Drugs and Psychotropic
Substances Act, 1985 - Petitioner had preferred application for grant of
bailon ground that his detention in connection with criminal case pending
before court below was illegal - Whether Petitioner entitled for relief on
ground that his detention was illegal - Held, it appeared from record that
there were prima facie, overwhelming evidence against present Petitioner
in form of CDRs so also Whatsapp conversation with other accusedso also
his own brother - Considering huge quantity of contraband, which was
seized from vessel MV Henry by NCB with help of Indian Coast Guard, court
was of opinion that Petitioner release, at this stage, especially when, case
was at very crucial stage and vital evidences were to come on record yet,
would have tendency of thwarting course of justice - Moreover, section 37
of Act also would not permit court to hold, at this stage, from evidence,
which have come on record and there were no reasonable grounds for
believing that Petitioner was not guilty of such offence and that grant of
liberty was not likely to thwart course of justice - Thus, this petition did not
deserve to be entertained and same was dismissed - However, considering
young age of Petitioner, he should be permitted to approach court once
again after period of expiry of six months, if, trial did not proceed
substantially - Petition dismissed. [6],[7]
JUDGMENT
S.G. Gokani, J.
Rule. Learned APP waives service of rule for the respondent-State, whereas, the
learned standing Counsel, Mr. Pandya, appearing with Mr. Vyas waives service of rule
for respondent No. 2.
1 . The petitioner has preferred this application under Articles 21 and 226 of the
Constitution of India along with Sections 167, 482 and Section 439 of the Code of
Criminal Procedure, 1973 ('the Code', in brief), on the ground that his detention in
connection with NDPS File No. NCB/AZU/CR-7/2017, numbered as Special Case No.
12-10-2021 (Page 1 of 38) www.manupatra.com Central University of South Bihar

1/2017, pending before the Court of the learned Special Judge, Porbandar, which is
filed by the Intelligence Officer of the Narcotics Control Bureau, Ahmedabad Zonal
Unit, Ahmedabad (for short, 'NCB') under Sections 8C, 21C, 23C, 25 and 29 of the
Narcotics Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' in short), is
illegal.
2. It is the say of the applicant that under Section 200 of the Code, the office of the
NCB has lodged a complaint, however, he has not produced any authorization to file
the said complaint, and therefore, custody of the applicant continues to be illegal.
The complainant is the Intelligence Officer in NCB, Ahmedabad. It is the say of the
complainant in the complaint that that the Indian Coast Guard is a Central
Government Agency, which has been empowered under Section 53 of the NDPS Act of
search, seizure and calling for the information, as is available to the Police Officer in
charge of a police station. It also has powers, under Section 49 of the very Act, to
stop and search conveyances including the vessels, as defined under Section 2(viii)
of the said Act. A specific information was received from Indian Coast Guard by NCB
on 29.07.2017 that a vessel, namely OSV MV Henry, is being escorted to Porbandar
and as the movement of the said vessel is suspicious, a request was made to send a
team for conducting the joint investigation and the arrival of the said vessel was
likely to be on 30.07.2017. This was when submitted to the Additional Director, NCB,
he directed the Investigating Officer, one Mr. Rakesh Datania, to form a team and
visit Porbandar.
2.1. On visiting the Head Quarter of the Indian Coast Guard at Porbandar, it was
realized by the IO, Mr. Datania that the vessel, OSV MV Henry, was under detention
of the Indian Coast Guard at Porbandar. They also had seized the huge quantity of
the contraband, i.e. heroin, along with its eight crew members. The vessel was
already in the Indian waters. The NCB team reached Saurashtra Cement Limited Jetty,
where, the information was extracted and a request was made to NCB to take over
the case for further proceedings. Accordingly, the District Collector, Porbandar, was
requested in writing to depute two officials to remain present as independent witness.
The Executive Magistrate also was deputed to remain present along with NCB team.
3. It is the case of the NCB that huge quantity of the contraband has been recovered
from different cavities of the said vessel. The total weight of the said contraband is
1445 kgs. approximately. The eight crew members, including the Captain of the
vessel, who were found on the said vessel, have also been named in the complaint.
One of them was the Captain of the vessel, namely Suprit Tiwari, who happens to be
the brother of the present applicant. The complainant had summoned the present
applicant for recording his statement on 01.08.2017. However, he had requested to
appear on 04.08.2017, and therefore, his statement came to be recorded on
04.08.2017, which revealed the following details:
"...
In his voluntarily statement Sujit Tiwari s/o. A N Tiwari, told that Suprit
Tiwari is his brother. His brother Suprit Tiwari joined merchant navy in
January, 2011 at Dubai. Then, he visited home during his holidays and he
was at home till April, 2017. In May, 2017, his brother Suprit Tiwari went to
Iran. Suprit used to call him from the satellite phone on his ship and would
inform him about his work and situation. One day, his brother Suprit called
him on phone and informed that his ship was halting at Karachi and that
goods are being loaded on it. He also informed him that he was going to

make a deal of Rs. 400 crores in which he was going to get Rs. 50 crores
towards his commission. He said that as and when he would get Rs. 50
crores towards the commission, he would send the money to Kolkata by
route of Hawala. He sent the numbers of two persons named Irfan and Vishal
through WhatsApp and asked him to be in contact with these persons. His
brother had informed that after delivery of the goods these persons would
come to Kolkata along with Rs. 50 crores of Hawala. Thereafter, time and
again he remained in contact with both these persons and had a conversation
with them. Before bringing his ship to India, Suprit had sent the crew list to
Sujit on WhatsApp and had asked him to hand over this crew list to Irfan and
Vishal. The said crew list contained the names of four Iranians and one
person named Esthekhar Alam also and he was required to hand over the
said crew list to Vishal and Irfan. Thereafter, as told by Suprit, Sujit deleted
the names of four Iranians and Esthekhar Alam and handed over the crew list
of the remaining persons to Vishal and Irfan through whatsapp. Suprit had
told him that after delivery of goods in Gujarat, the ship will be converted
into trash at Alang. Vishal sent Sujit a voice message on WhatsApp that there
was a person named Saud who is contact with his brother Suprit through
postpaid connection and he had worked out a plan for unloading the heroin
from the ship at Gujarat instead of Mumbai. In July last week Suprit called
his on phone and informed that he was about to reach India along with his
ship and after unloading heroin in Gujarat his people would hand over Rs. 50
crores to him at Kolkata.
Sujit further stated that his mobile number is 9804412393 and he used a
black colored mobile phone of Motorola Nexus. Sujit also stated that Suprit
used to call him from satellite phone having number +8821621280227 and
another mobile number of Suprit Tiwari was +971569633590. Suprit also
told that Vishal's mobile number was 9789435606 and Irfan mobile number
was 9768437860.
..."
3.1. It is, further, the case of NCB that Suprit Tiwari in his statement recorded on
02.08.2017 had stated that the other seven crew members found on the said vessel
were Vinay, Munish, Manish, Devesh, Anurag, Dinesh and Sanjay. He, further, had
stated that he was introduced to one Seyed Ali Moniri @ Seyed Mahmoud, who is an
Iranian national, by one Amin Lalla, who was known to him from his earlier work
days in UAE. He worked in the company of said Seyed Ali Moniri as Captain with the
monthly salary of 3,000 U.S. Dollars. He along with three other persons, who were
known to him from his days of childhood, joined the vessel known as Prince-2 on
22.05.2017 and the other persons were also working on this vessel, which was
owned by Ali Moniri. The cavities were already made in the said vessel and the same
were being made to conceal the contraband article, i.e. heroin. They were all asked to
carry out his directions by Ali Moniri and in return, he offered to the Captain of the
vessel 20,000 AED and other crew members were offered 5000 AED. Those of them,
who were disagreeable departed from Prince-2 to another vessel. It is his case that
after that Ali Moniri came along with four Iranians, namely Ebrahim, Mustafa,
Mohamad, Rassol and they joined them on the trip with the other persons. Then, they
started towards Sharjah and on reaching there the Captain of the vessel, i.e. the
brother of the present applicant, purchased a cellphone bearing no. +971569633590
at Free Zone, Sharjah. He was, then, introduced to Devendra, a resident of Bareilly,
Uttar Pradesh and they both conspired to steal the entire load of the contraband of Ali

Moniri. They also planned to defraud Ali Moniri and to earn the huge profits.
Devendra provided cellphone number being +919897215944 of Vishal, who also hail
from Uttar Pradesh and Vishal provided the cellphone number being (i) 9768437860
and (ii) 8850390034 of Irfan to him. Both Vishal and Irfan agreed to purchase the
entire consignment of contraband.
3.2. It is, further, the case of the prosecution that Suprit was directed by the Ali
Moniri to station the vessel Prince-II at about 70 NM from Gwadar Port, Pakistan, and
thereafter, the small boats containing the contraband, weighing, in all, 1445 Kgs.
approximately, came to be loaded in the said vessel and concealed in the different
cavities of the said vessel. The welding of the said cavities was also done. This work
was carried out by the four Iranians and one Pakistani, namely Khalid Mohammad,
had also joined them on the trip. Although, the vessel initially started towards Red
Sea on 24.07.2017, as per the crew members' plan they turned the said vessel
towards India on 26.07.2017. It is also alleged that two of the persons, who were on
the vessel, were thrown in the sea with an intention of cheating Ali Moniri and
stealing the entire load of contraband weight around 1445 kgs., valued at Rs. 4500/-
crore in the international market. From 26.07.2017, the Captain of the vessel and the
brother of the present applicant was in constant touch with Irfan and Vishal and both
of them had assured the Captain of the vessel and other crew members to purchase
the entire load of the contraband. It is also the case of the prosecution that the
Vessel Prince-II repainted mid-sea and was renamed as M.V. Henry. Therefore, a
detailed complaint, came to be lodged by the Intelligence Officer on 21.12.2017.
3.3. The present petitioner is the brother of the Captain of the said vessel, namely
Suprit, who is arrested by the NCB on the basis of the details culled out on the basis
of the record of satellite phone. The petitioner has emphasized that there is not an
iota of evidence to indicate that he was aware of the criminal conspiracy with regard
to either the contraband or of any other details, which have been provided in the
complaint, itself. It is, further, his say that merely because, he happens to be the
brother of the Captain of the said vessel and he spoke to his brother over the satellite
phone, since, that was the only mode of communication available, he cannot be
arraigned as an accused. Moreover, it is urged that the statements of Vishal and Irfan
would reveal that the present applicant would have no connection with this entire
incident. CDRs is sought to be relied upon to urge that the phone calls made to the
co-accused, who happens to be his brother, would not make him liable for any act.
3.4. It is, further, the case of the petitioner that his arrest has been made in wake of
the complaint filed by the NCB. There is no charge-sheet so far filed. Therefore, his
present custody cannot be termed as a legal custody. It is, further, his case that the
complaint is filed without obtaining necessary sanction, and therefore, the complaint
is bad in law. It is, therefore, urged that the petitioner be granted regular bail, as the
chances of his conviction are very bleak. An application being Criminal Misc.
Application No. 61 of 2018 was also preferred by the petitioner before the learned
Special Judge, Porbandar, seeking regular bail and questioning his custody. However,
the same is rejected by the learned Special Judge, Porbandar, vide his order dated
06.02.2018.
3.5. It is the case of the petitioner that he is 25 years old and has just completed his
engineering. He also has got various job offers and his continuous custody would
ruin his entire life. It is prayed that, since, he has no criminal antecedents, he be
enlarged on regular bail. If, he is kept behind the bars, he shall have to suffer the
damage, which cannot be compensated in terms of money. Thus, with two fold

prayers, i.e. (i) seeking a declaration that his custody is illegal and (ii) seeking his
release on regular bail, he is before this Court.
4 . Affidavit-in-reply for and on behalf of respondent No. 2-NCB is filed, where, the
contention has been raised that the complaint has been filed under Section 200 of the
Code. Actually, the complaint is filed under Section 36A(d)(4) of the NDPS Act and
the officers of the Revenue Intelligence have been vested with the powers of Officer
in charge of a police station under Section 53 of the NDPS Act. They are not police
officers within the meaning of Section 25 of the Indian Evidence Act, 1872, and their
powers are akin to the powers vested in the officers under the Customs Act. Two
decisions also have been pressed into service, viz. (1) 'RAM SING VS. CENTRAL
BUREAU OF INVESTIGATION', MANU/SC/0629/2011 : (2011) 11 SCC 347 and (2)
'STATE THROUGH NARCOTICS CONTROL BUREAU VS. KULVANTSINH',
MANU/SC/0108/2003 : (2003) 9 SCC 193, where, the Apex Court has held that
Central Government constituted an authority Narcotics Control Bureau by way of a
notification, empowering the officers of the NCB above the rank of inspector to
exercise the powers under Section 41(2), 41(1), 67 and 53 of the Act and the NCB is
authorized to carry search and seizure and their powers can be enlarged by the
notification empowering the officers to exercise the powers under Section 36A, 41,
42 and 67 of the Act.
4.1. On merits, it is urged that the present petitioner was in constant touch with the
other co-accused. His Whatsapp conversation is also indicative that he was fully
conscious, as to what was going on and from the statement made under Section 67
of the NDPS Act, his prima facie involvement is established on record. The statement
given by the present petitioner and the other co-accused are voluntary statements,
which were recorded by the officers prior to the lodgment of the complaint.
Moreover, non-compliance of Sections 41 and 42 of the Act would not vitiate the trial
even if, eventually, it is proved that the there had been non-compliance.
4.2. The summons under Section 67 of the Act, according to the respondent, had
been issued to the present petitioner for recording his statement on 02.08.2017 and
he had appeared on 04.08.2017, at 16:00 hours. The entire procedure was duly
followed. It is, further, urged that the complainant's case is filed under 36A(d)(4) of
the NDPS Act. This provides that the Special Court may, upon perusal of police report
of the facts constituting an offence under this Act or upon a complaint made by an
officer of the Central or State Government, authorized in this behalf, take cognizance
of that offence without the accused being committed to it for trial. The complaint is
filed within the stipulated period of 180 days and the same is registered as NDPS
Case No. 01/2017. There is no procedure to lodge FIR in NCB.
4.3. So far as the request of the petitioner for grant of regular bail is concerned, it is
urged that the quantity of the contraband seized in this case is commercial quantity,
as defined under Section 37 of the NDPS Act and it would not fall under Section 439
of the Code. It is also the say of the respondent that the kind of evidence that has
emerged against the present petitioner, it is not a case for this Court to consider his
case for regular bail. Specifically, it has been pointed out that, in his statement, he
has agreed that his brother had called him over the phone to say that his ship was
halting at Karachi and the goods were being loaded and he was going to make a deal
of about Rs. 400/- crore, for which he was going to get Rs. 50/- crore towards
commission and whenever he completes the said deal, he would send the said
amount to Kolkata by way of Hawala. His brother had also asked the present
petitioner to remain in constant touch with Vishal and Irfan through Whatsapp. After

the delivery of the goods, these persons would come to Kolkata along with Rs. 50/-
crore through Hawala route and thereafter, the petitioner remained in contact with
Irfan and Vishal and he also had conversation with them.
4.4. The petitioner also had sent Crew List on Whatsapp and was asked to handover
the same to Irfan and Vishal. This list contained the names of the four Iranian
nationals and one person named, Khalid Mohammad, who was a Pakistani national.
Thereafter, the petitioner was told to delete the names of four Iranian nationals and
of Pakistani national and to hand over the names of the remaining crew members to
Vishal and Irfan through Whatsapp. The petitioner also was conveyed that after the
delivery of the goods in Gujarat, the ship shall be converted into trash at Alang..
Vishal also had conveyed to the present petitioner that he has worked out a plan for
unloading the heroin in Gujarat instead of Mumbai. All the details, including the
details of the cellphone, have been provided by the petitioner in his statement.
5 . This Court has heard extensively, learned Advocate, Mr. Popat, with learned
Advocate, Mr. Jadeja, for the petitioner, learned Advocate, Mr. Pandya with Mr. Vyas
for respondent No. 2-NCB so also the learned APP for the respondent-State.
6 . Taking firstly the issue of question of arrest and custody of the petitioner, the
challenge is made to the arrest of the petitioner, after his statement was recorded
under Section 67 of the NDPS Act on 04.08.2017. He was, then, produced before the
Magistrate on the very same day and was sent into custody. It is to be noted that the
complaint in this case is filed under Section 36 A(d)(4) of the NDPS Act, which is
numbered as NDPS Case No. 1/2017. The Intelligence Officer of the NCB is
authorized to investigate under Section 53 and Section 36 A(d)4 of the NDPS Act
empowers the Special Court to take cognizance of the offence, when the accused is
committed to it and upon perusal of the police paper, discloses an offence under the
Act or upon a complaint made by an officer of the central or state government and
authorized in this behalf.
6.1. In case of 'DIRECTORATE OF ENFORCEMENT VS. DEEPAK MAHAJAN AND
ANOTHER', MANU/SC/0422/1994 : 1994 (2) GLH 603, the Apex Court held that it is
not an indispensable prerequisite condition that in all circumstances, the arrest
should have been effected only by a police officer and none else and that there must
necessarily be records of entries of a case diary. Therefore, it necessarily follows that
a mere production of an arrestee before a competent Magistrate by an authorized
officer or an officer empowered to arrest (notwithstanding the fact that he is not a
police officer in its stricto sensu) on a reasonable belief that the arrestee "has been
guilty of an offence punishable" under the provisions of the special Act is sufficient
for the Magistrate to take that person into his custody on his being satisfied of the
three preliminary conditions, namely, (1) the arresting officer is legally Competent to
make the arrest, (2) that the particulars of the offence or the accusation for which the
person is arrested or other grounds for such arrest do exist and are well-founded,
and (3) that the provisions of the special Act in regard to the arrest of the persons
and the production of the arrestee serve the purpose of Section 167(1) of the Code.
6.2. The Apex Court, in that case, was considering Section 104(1) of the Customs
Act, 1962, Section 35(1) and 35(2) of the Foreign Exchange Regulation Act, 1973,
and Section 167(2) of the Code and the Apex Court observed and held as under:
"102. From the foregoing discussion, it is clear that the word 'accused' or
'accused person' is used only in a generic sense in Section 167(1) and (2)

denoting the "person" whose liberty is actually restrained on his arrest by a
competent authority on well founded information or formal accusation or
indictment. Therefore, the word 'accused' limited to the scope of Section
167(1) and (2) -particularly in the light of Explanation to Section 273 of the
Code includes 'any person arrested'. The inevitable consequence that follows
is that 'any person is arrested' occurring in the first limb of Section 167(1) of
the Code takes within its ambit 'every person arrested' under Section 35 of
FERA or S. 104 of the Customs Act also as the case may be and the 'person
arrested' can be detained by the Magistrate in exercise of his power under
Section 167(2) of the Code. In other words, the 'person arrested' under FERA
or Customs Act is assimilated with the characteristics of an 'accused' within
the range of Section 167(1) and as such liable to be detained under Section
167(2) by a Magistrate when produced before him.
103. In fact, Justice Yogeshwar Dayal speaking for the majority in Union of
India v. O.P. Gupta, (1990) 2 DL 23 (FB) has rightly observed thus:
"The expression 'accused' used in Section 167(2) of the Code is not
in the sense of accused under Article 20(3) of the Constitution
and/or Section 25 of the Indian Evidence Act with which the
Supreme Court was concerned in the cases of Ramesh Chander
Mehta and/or Illias. The word, "accused" in Section 167(2) of the
Code is merely used in the sense of defining a person who has been
arrested, detained and produced before a Magistrate and not in the
sense of accused person under the Customs Act and/or Foreign
Exchange Regulation Act since that person has been defined in the
aforesaid two judgments as only that person against whom
cognizance has been taken by the Magistrate on a complaint being
filed. Therefore, the judgment of the Supreme Court in the case of
Ramesh Chander Mehta or Illias referred to above do not stand in the
way of applicability of Section 167(2) of the Code to the person
detained and produced by competent officer before the Magistrate in
pursuance of Section 104(2) of the Customs Act or Section 35(2) of
the Foreign Exchange Regulation Act."
1 0 4 . Further, in the later part of his judgment the learned Judge has
observed;
"The word accused is to be construed in its widest connotations. It
means the one who is arrested and detained."
105. After having observed as above, it has been concluded by the learned
Judge thus:
"Section 167(1) of the Code is already replaced by Section 104(2) of
the Customs Act and S. 35(2) of the Foreign Exchange Regulation
Act. What is to be done to a person who is so produced before the
Magistrate is dealt with only under Section 167(2) and not under
Section 167(1) of the Code." 103. Agreeing with the majority
judgment in O.P. Gupta ((1990) 2 DL 23 (FB)) and with the view of
the High Court of Kerala in C.I.U. Cochin v. P.K. Ummerkutty,
MANU/KE/0083/1983 : 1983 Cri L J 1860 and N.K. Ayoob v. The
Superintendent, C.I.W., Cochin, MANU/KE/0118/1983 : 1984 Cri L J

949 as well as of the Gujarat High Court in N.H. Dave v. Mohamed
Akhtar, MANU/GJ/0009/1982 : 1984 (15) ELT 353, Arunachalam, J.
of the Madras High Court in his well-reasoned judgment in Senior
Intelligence Officer v. M.K.S. Abu Bucker, MANU/TN/0031/1989 :
1989 LW (Cri) 325: (1990 Cri L J 704) has observed as follows (at
Pp. 710 to 713 of 1990 Cri L J): "Obviously in relation to a person
arrested under the Customs Act, Section 167(1), Cr.P.C., is covered
suitably by S. 104(1) and (2) of the Customs Act. In that event, the
application of S. 167(2) of the Code can pose no difficulty, except
the consideration of the words 'accused person' used in that
subsection.
***
If we construe the words "an accused person" in S. 167(2) of the
Code, it will be clear that the words would take in, the person who is
arrested or detained in custody by the Customs Officer who had
reason to believe that such person was guilty of an offence
punishable under S. 135 of the Act.
***
Looked at in this background, the word 'accused' in Section 167(2),
Cr.P.C., will have to be construed in its widest connotation meaning
"one who has been arrested and detained" which will include even a
person suspected of having committed an offence.
***
I hold that the Magistrate has the power to remand a person
produced before him in accordance with S. 104 of the Customs Act
by virtue of the powers of remand under S. 167(2) and (3) of the
Code and could further exercise the powers under S. 437 of the
Code."
106. In our considered opinion, the view taken in O.P. Gupta ((1990) 2 DL
23 (FB)). and M.K.S. Abu Bucker (MANU/TN/0031/1989 : 1990 Cri. L J 704
(Mad)) and also of the Kerala High Court and Gujarat High Court is the
logical and correct. View and we approve the same for the reasons we have
given in the preceding part of this judgment. We, indeed, see no
imponderability in construing Section 35(2) of FERA and 104(2) of Customs
Act that the said provisions replace Section 167(1) and serve as a substitute
thereof substantially satisfying all the required basic conditions contained
therein and that consequent upon such replacement of sub-section (1) of
Section 167, the arrested person under those special Acts would be an
accused person to be detained by the Magistrate under subsection (2) of
Section 167. In passing, it may be stated that there is no expression 'police
officer' deployed in Section 167(1) nor does it appear in any part of Section
167(2). The authority for detaining a person as contemplated under Section
167(2) is in aid of investigation to be carried on by any prosecuting agency
who is invested with the power of investigation.
1 0 7 . We next proceed to consider the second question whether the
authorised or empowered officer under FERA or Customs Act exercises all or

any of the powers of a police officer outlined under Chapter XII of the Code
and conducts any investigation within the meaning of Section 2(h) of the
Code.
108. The word 'Investigation' is defined under Section 2(h) of the present
Code (which is an exact reproduction of Section 4(1)(1) of the old Code)
which is an inclusive definition as including all the proceedings under the
Code for the collection of evidence conducted by a police officer or any
person (other than a Magistrate) who is authorised by a Magistrate in this
behalf. The said word 'investigation' runs through the entire fabric of the
Code. There is a long course of decisions of this Court as well as of the
various High Courts explaining in detail, what the word 'investigation' means
and is? It is not necessary for the purpose of this case to recapitulate all
those decisions except the one in H.N. Rishbud v. State of Delhi,
MANU/SC/0049/1954 : 1955 (1) SCR 1150: (AIR 1955 SC 196). In that
decision, it has been held that "under the Code investigation consists
generally of the following steps: (1) Proceeding to the spot, (2)
Ascertainment of the facts and circumstances of the case, (3) Discovery and
arrest of the suspected offender, (4) Collection of evidence relating to the
commission of the offence which may consist of (a) the commission of
various persons (including the accused) and the reduction of their statement
into writing, if the officer thinks fit, (b) the search of places or seizure of
things considered necessary for the investigation and to be produced at the
trial, and (5) formation of the opinion as to whether on the material collected
there is a case to place the accused before a Magistrate for trial and if so
taking the necessary steps for the same by the filing of a charge-sheet under
Section 173."
The steps involved in the course of investigation, as pointed out in Rishbud's
case (MANU/SC/0049/1954 : AIR 1955 SC 196) have been reiterated in State
of M.P. v. Mubarak Ali.
109. No doubt, it is true that there is a series of decisions holding the view
that an officer of enforcement or a customs officer is not a police officer
though such officers are vested with the powers of arrest and other
analogous powers. Vide Ramesh Chandra v. The State of West Bengal, and
Illias v. Collector of Customs, Madras. In the above decisions, this Court has
held that the above officers under the special Acts are not vested with the
powers of a police officer qua investigation of an offence under Chapter XII
of the Code including the power to forward a report under Section 173 of the
Code. See also State of Punjab v. Barkat Ram, and Badaku Jyoti Savant v.
State of Mysore."
6.3. It would not be out of context to mention that the emphasis on the part of the
learned Advocate, Mr. Popat, is that a person not being a police officer or any
authorized officer, investigation is caused to be carried out under the directions of
the Magistrate, whereas, in the instant case from the date of the filing of the
complaint till lodging of the FIR, this aspect is missing. He also sought to rely on the
decision of the Apex Court in the case of 'TOFAN SINGH VS. STATE OF TAMIL NADU',
MANU/SC/1031/2013 : AIR 2014 SC (Supp) 1534, where, the question before the
Apex Court was as to whether, such a statement made under Section 67 of the NDPS
Act can be made the sole basis by construing the same as substantial evidence to
record the conviction.

6.4. The appellant, therein, was listed as Accused No. 3 in the trial for the offences
under Sections 8(c), 21(c), 8(c) read with Section 29 of the NDPS Act. The trial,
conducted by the Special Judge, Additional Special Court, under the NDPS Act,
Chennai, which resulted in the conviction of the appellant, holding him guilty of the
offences under the aforesaid provisions of the Act. As a consequence of the said
judgment dated 18.12.2009 convicting him under the provisions of the NDPS Act, the
learned Special Judge sentenced the appellant to undergo 10 years rigorous
imprisonment and to pay a fine of Rs. 1/- lakh and in default to undergo further
rigorous imprisonment for a period of one year. Identical sentences were also
imposed for the offences under Section 8(c) read with Sections 21 and 29 of the
NDPS Act with the direction that both the sentences had to be undergone by the
appellant concurrently. The appeal filed by the appellant against the order of the
Special Judge, Addl. Special Court, came to be dismissed by the High Court of Madras
vide judgment and order dated 18.06.2012 and thereby, maintaining the conviction
as well as the sentence awarded by the Special Judge, Addl. Special Court under
NDPS Act, Chennai.
6.5. When the challenge was taken to the Apex Court by way of Special Leave
Petition, though, the leave was granted on 18.01.2013. However, at the same time,
bail application preferred by the appellant was rejected and appeal was posted for
hearing. The relevant observations read thus:
38. In our view the aforesaid discussion necessitates a re-look into the ratio
of Kanhaiyalal Case (MANU/SC/7047/2008 : AIR 2008 SC 1044: 2008 AIR
SCW 627). It is more so when this Court has already doubted the dicta in
Kanhaiyalal (supra) in the case of Nirmal Singh Pehalwan
MANU/SC/0957/2011 : (2011) 12 SCC 298: (2011 AIR SCW 5697) wherein
after noticing both Kanhiyalal as well as Noor Aga, this Court observed thus:
"15. We also see that the Division Bench in Kanhaiyalal case;
MANU/SC/7047/2008 : 2008 (4) SCC 668; (2008) 2 SCC (Crl) 474:
(AIR 2008 SC 1044: 2008 AIR SCW 627), had not examined the
principles and the concepts underlying Section 25 of the Evidence
Act vis.-a-vis. Section 108 of the Customs Act the powers of Custom
Officer who could investigate and bring for trial an accused in a
narcotic matter. The said case relied exclusively on the judgment in
Raj Kumar's case (MANU/SC/0014/1991 : AIR 1991 SC 45) (supra).
The latest judgment in point of time is Noor Aga's case
(MANU/SC/2913/2008 : AIR 2009 SC (Supp) 852 : 2008 AIR SCW
5964) which has dealt very elaborately with this matter. We thus feel
it would be proper for us to follow the ratio of the judgment in Noor
Aga's case particularly as the provisions of Section 50 of the Act
which are mandatory have also not been complied with."
39. For the aforesaid reasons, we are of the view that the matter needs to be
referred to a larger Bench for reconsideration of the issue as to whether the
officer investigating the matter under NDPS Act would qualify as police
officer or not.
4 0 . In this context, the other related issue viz. whether the statement
recorded by the investigating officer under Section 67 of the Act can be
treated as confessional statement or not, even if the officer is not treated as
police officer also needs to be referred to the larger Bench, inasmuch as it is

intermixed with a facet of the 1st issue as to whether such a statement is to
be treated as statement under Section 161 of the Code or it partakes the
character of statement under Section 164 of the Code.
41. As far as this second related issue is concerned we would also like to
point out that Mr. Jain argued that provisions of Section 67 of the Act cannot
be interpreted in the manner in which the provisions of Section 108 of the
Customs Act or Section 14 of the Excise Act had been interpreted by number
of judgments and there is a qualitative difference between the two sets of
provisions. Insofar as Section 108 of the Customs Act is concerned, it gives
power to the custom officer to summon persons "to give evidence" and
produce documents. Identical power is conferred upon the Central Excise
Officer under Section 14 of the Act. However, the wording to Section 67 of
the NDPS Act is altogether different. This difference has been pointed out by
Andhra Pradesh High Court in the Case of Shahid Khan v. Director of Revenue
Intelligence; MANU/AP/0972/2001 : 2001 (Criminal Law Journal) 3183.
6.6. This matter was then referred to the larger Bench to decide the aforesaid specific
issue so also the other related issues.
6.7. In 'HIRA SINGH VS. UNION OF INDIA', MANU/SC/0761/2017 : (2017) 8 SCC
162, the appellant and others approached the Apex Court seeking quashment of the
notification issued by the Central Government bearing No. S.O. 2941(E) dated
18.11.2009, amending Notification No. S.O. 1055(E) : MANU/REVU/0009/2001 dated
19.10.2001 and thereby inserting Note 4 (four) Signature Not Verified Digitally
signed by CHETAN KUMAR in the table at the end of Note 3 (three). The appellants
had challenged the judgment and order of the High Court of Delhi and of the High
Court of Punjab and Haryana respectively, rejecting the challenge to the impugned
notification being ultra vires. Therefore, the said notification was assailed on the
ground that the NDPS Act does not confer any power upon the Central Government to
vary the parameters of the quantification of the drugs. It was urged that the offence
defined in the Act is specific to narcotic drugs or the psychotropic substances and no
punishment is provided for or can be given in respect of non-narcotic drugs or the
non psychotropic substances. It was, therefore, urged that the something that cannot
be done directly, it cannot be achieved indirectly, much less by issuance of a
notification, where, the Apex Court observed and held as under:
"9. The respondents have rightly pointed out that the expression "neutral"
substance has not been defined in the Act. That obviously has been coined by
the Court to describe the other component of the mixture or preparation
(other than the specified narcotic drug or psychotropic substance). We are
also in agreement with the respondents that, the said decision nowhere
makes reference to Note 2 (two) of the notification dated 19.10.2001 and
that the same may have some bearing on the issue under consideration. This
decision also does not refer to entry no. 239 and the interplay between the
various provisions alluded to earlier while noting the argument of the
respondents. That may have some bearing on the issue that has been finally
answered. The judgment, however, after quoting the notification dated
19.10.2001 took note of the purpose for which Amendment Act of 2001 was
brought into force and then proceeded to hold that to achieve the said
purpose of rationalisation of the sentence structure, the purity of the narcotic
drug from the recovery or seizure made from the offender would be a
decisive factor. In other words, the actual content or weight of the narcotic

drug or psychotropic substance alone should be reckoned. For taking that
view support was drawn from the observations made in another two Judges
Bench decision in the case of Ouseph @ Thankachan Vs. State of Kerala
which, however, has also not elaborately dealt with the issue finally
answered in E. Micheal Raj (supra).
10. It was possible to examine the wider issues raised by the respondents
upon accepting their argument that the decision in E. Micheal Raj (supra) is
per incuriam. However, in our view, that decision has interpreted Section 21
of the Act. That interpretation would bind us. Moreover, that decision has
been subsequently noted in other decisions of this Court in the case of Harjit
Singh Vs. State of Punjab MANU/SC/0269/2011 : (2011) 4 SCC 441,
Kashmiri Lal Vs. State of Haryana, State Through Intelligence Officer, and
Narcotics Control Bureau Vs. Mushtaq Ahmad and Others 6-followed or
distinguished. In Amarsingh Ramjibhai Barot vs. State of Gujarat, quantity of
entire mixture was reckoned and not limited to the pure drug content therein.
Significantly, in none of these decisions, was the Court called upon to
examine the issues now raised by the respondents. Further, all these
decisions are of two Judges Bench.
1 1 . Thus, considering the significance of the issues raised by the
respondents and the grounds of challenge of the appellants/petitioners
concerning the impugned notification, to observe judicial rectitude and in
deference to the aforementioned decisions we direct that these matters be
placed before at least a three Judges Bench for an authoritative
pronouncement on the matters in issue, which we think are of seminal public
importance.
1 2 . The three Judges Bench may have to consider, amongst others, the
following questions:
(a) Whether the decision of this Court in E. Micheal Raj (supra)
requires reconsideration having omitted to take note of entry no. 239
and Note 2 (two) of the notification dated 19.10.2001 as also the
interplay of the other provisions of the Act with Section 21?
(b) Does the impugned notification issued by the Central
Government entail in redefining the parameters for constituting an
offence and more particularly for awarding punishment?
(c) Does the Act permit the Central Government to resort to such
dispensation?
(d) Does the Act envisage that the mixture of narcotic drug and
seized material/substance should be considered as a preparation in
totality or on the basis of the actual drug content of the specified
narcotic drug?
(e) Whether Section 21 of the Act is a stand alone provision or
intrinsically linked to the other provisions dealing with
"manufactured drug" and "preparation" containing any manufactured
drug?"
6.8. It is given to understand to this Court that till date, the reference made to the

larger Bench to determine the aforesaid issues is pending.
6.9. Apt also would be to refer to 'E. MICHEAL RAJ VS. INTELLIGENCE OFFICER,
NARCOTIC CONTROL BUREAU', MANU/SC/7405/2008 : (2008) 5 SCC 161. It was a
case, where, the Apex Court was considering the determination of small or
commercial quantity in relation to narcotic drugs or psychotropic substances in a
mixture with one or more neutral substances. It was while considering the relevant
weight of offending drug in the mixture, it held and observed that in the mixture of
narcotic drug or psychotropic substance with one or more neutral substances, the
quantity of neutral substance is not be taken into consideration while determining the
small or commercial quantity of the narcotic drug or psychotropic substance and only
actual content by weight of the offending drug which is relevant for the purpose of
determining, whether, it would constitute small quantity or commercial quantity,
where, the Apex Court has held that in the mixture of narcotic drug or psychotropic
substance with one or more neutral substances, the quantity of neutral substance is
not to be taken into consideration, while determining the small or commercial
quantity of the narcotic drug or psychotropic substance.
6.10. The Apex Court, further, noted that the rate of purity of the drug is decisive for
determining the quantum of sentence for small, intermediary or commercial quantity.
The punishment must be based on the volume or content of the offending drug in the
mixture and not on the aggregate weight of the mixture as such. In other words, the
quantity of the neutral substance is not to be taken into consideration. While
determining the small quantity or commercial quantity of a narcotic drug or
psychotropic substance. It is only the actual content by weight of the narcotic drug,
which is relevant for the purpose of determining the quantity with reference to the
quantum of punishment. The Court also noted that the expression 'neutral substance'
has not been defined in the Act and that obviously has been coined by the Court to
describe the other components of the mixture or preparation, other than the specified
narcotic drug or psychotropic substance. The Apex Court, further, held and observed
as under:
"11. Thus, considering the significance of the issues raised by the
respondents and the grounds of challenge of the appellants/petitioners
concerning the impugned notification, to observe judicial rectitude and in
deference to the aforementioned decisions we direct that these matters be
placed before atleast a three Judges Bench for an authoritative
pronouncement on the matters in issue, which we think are of seminal public
importance.
1 2 . The three Judges Bench may have to consider, amongst others, the
following questions:
12.1 Whether the decision of this Court in E. Micheal Raj (supra)
requires reconsideration having omitted to take note of entry no. 239
and Note 2 (two) of the notification dated 19.10.2001 as also the
interplay of the other provisions of the Act with Section 21?
1 2 . 2 Does the impugned notification issued by the Central
Government entail in redefining the parameters for constituting an
offence and more particularly for awarding punishment?
12.3 Does the Act permit the Central Government to resort to such
dispensation?

12.4 Does the Act envisage that the mixture of narcotic drug and
seized material/substance should be considered as a preparation in
totality or on the basis of the actual drug content of the specified
narcotic drug?
12.5 Whether Section 21 of the Act is a stand alone provision or
intrinsically linked to the other provisions dealing with
"manufactured drug" and "preparation" containing any manufactured
drug?
13. It will be open to the parties to persuade the larger Bench to reformulate
the aforementioned questions or frame additional question(s), if they so
desire."
6.11. In 'UMARBHAI YUSUFBHAI CHINIWALA VS. UNION OF INDIA AND ANOTHER',
Criminal Misc. Application No. 1941 of 2018, this Court was posed with the very
question, where, this Court observed and held as under:
8. Having heard the learned Advocates on both the sides, it can be noticed
that the muddamal articles, which is said to have been containing Opium,
which is a contraband, article was found in the bottles labeled as 'Kamini
Vidravan Rus', which is known as Ayurvedic Viagra, which is duly available in
the market. It was on a tip off that the NCB carried out a raid and found from
the office of the courier services, the packets, which were to be received,
initially, by A-1 and thereafter by A-3. It is the case of the prosecution that at
the behest of A-2, A-3 was to receive those parcels. The question, therefore,
that arises is as to whether, there is prima facie any admissible evidence
under the law or there is any cogent reason for this Court to deny bail to the
present applicant.
8.1 Before this Court considers the statements under Section 67 of the NDPS
Act for which much debate took place during the course of submissions,
particularly, because the Apex Court, itself, has referred the matter to the
larger Bench in 'TOFAN SINGH VS. STATE OF TAMIL NADU ' (Supra), what
this Court needs to consider at this stage is as to whether, this is a
widespread racket of sending the narcotic drugs under the pretext of
Ayurvedic product outside the Country.
8.2 It is on a tip off that the NCB had carried out a raid at the office of Shree
Mahabali Express Pvt. Ltd., whereupon, it was found that the parcels were in
the name of A-1, who had presented himself at the office to collect the same.
Undoubtedly, in regard to the two parcels, which had been seized initially, and
thereafter, the other parcels seized from the residence of A-1, the panchnama
had been carried out, later on, at Circuit House.
THE CONTENT/PERCENTAGE OF CONTRABAND ARTICLE:
The emphasis on the part of the learned Sr. Advocate, Mr. Raju, is that the
samples, which were drawn, were representative in nature, whereas, the
panchnama prima facie reveal that all the packets were emptied in a
container, and thereafter, the samples were drawn. These samples were when
sent to the CRCL, New Delhi, they were found to be containing 'Opium'. The
total contents of the packets containing Opium weighed 6.723 kgs..
Undoubtedly, there are four such samples and out of the total number of

parcels seized, from each parcel, representative sample had been drawn, after
emptying all those bottles of a particular packet.
8.3 In that view of the matter to say that these were reference samples and
hence, would not reflect the clear picture of contraband article does not weigh
with this Court.
8.4 So far as the total content of opium is concerned, it is argued that the
content of Morphin found to be was 2.89%, 3.39%, 3.30% and 2.73%
respectively, as per the complaint. As can be culled out from the report of
CRCL dated 26.05.2017, which is the result of chemical analysis of all the four
samples.
8.5 As mentioned herein above, the emphasis on the part of the applicant is
that they should be construed as 0.232 gms. and not as 6.723 kgs.
8.6 Reliance in that regard is placed on the decision of the Apex Court
rendered in case of 'E. MICHEAL RAJ VS. INTELLIGENCE OFFICER,
NARCOTIC CONTROL BUREAU'(Supra). It was a case, where, the Apex
Court was considering the determination of small or commercial quantity in
relation to narcotic drugs or psychotropic substances in a mixture with one or
more neutral substances. It was while considering the relevant weight of
offending drug in the mixture, it held and observed that in the mixture of
narcotic drug or psychotropic substance with one or more neutral substances,
the quantity of neutral substance is not be taken into consideration while
determining the small or commercial quantity of the narcotic drug or
psychotropic substance and only actual content by weight of the offending
drug which is relevant for the purpose of determining, whether, it would
constitute small quantity of commercial quantity.
8.7 At this stage, relevant it would be to refer to the Notification dated
18.11.2009, issued by the Ministry of Finance (Department of Revenue), New
Delhi, which read as under:
"...
S.O. 2941(E).- IN exercise of the powers conferred by clause (vii a)
and (xxiii a) of section 2 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985) the Central Government, hereby
makes the following amendment in the Notification S.O. 1055(E)
dated 19th October, 2001, namely:-In the Table at the end after Note
3, the following Note shall be inserted, namely:-
"(4) The quantities shown in Column and column 6 of the
Table relating to the respective drugs shown in column 2
shall apply to the entire mixture or any solution or any one or
more narcotic drugs or psychotropic substances of that
particular drug in dosage form or isomers, esters, ethers and
salts of those drugs, including salts of esters, ethers and
isomers, wherever existence of such substance is possible
and not just its pure drug content."
8.8 Thus, it is clear from the above notification that, as per the requirement of
considering the existence of the substance, its entire mixture shall have to be

considered, while considering the quantity shown in column 5 and column 6
of the table of the respective drugs shown in Column 2. Bearing in mind that
this a notification to possibly nullify effect of the earlier decision of the Apex
Court the reference made in 'HIRA SINGH AND ANOTHER VS. UNION OF
INDIA AND ANOTHER' (Supra) would need discussion hereunder.
8.9 The Apex Court while considering this decision of 'E. MICHEAL RAJ VS.
INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU ' (Supra), noted
that the principle stated in the said decision is that the rate of purity of the
drug is decisive for determining the quantum of sentence for small,
intermediary or commercial quantity. The punishment must be based on the
volume or content of the offending drug in the mixture and not on the
aggregate weight of the mixture as such. In other words, the quantity of the
neutral substance is not to be taken into consideration. while determining the
small quantity or commercial quantity of a narcotic drug or psychotropic
substance. It is only the actual content by weight of the narcotic drug, which
is relevant for the purpose of determining the quantity with reference to the
quantum of punishment. The Court also noted that the expression 'neutral
substance' has not been defined in the Act and that obviously has been coined
by the Court to describe the other components of the mixture or preparation,
other than the specified narcotic drug or psychotropic substance.
Therefore, on the detailed discussion on this issue and considering the
significance of the issues raised by the parties and the grounds of challenge,
concerning the notification, while observing judicial rectitude and in deference
of the decisions discussed, therein, the Apex Court in 'E. MICHEAL RAJ'
(Supra), directed the matter to be placed at least before a three Judge Bench
with an authoritative pronouncement on the matters in issue, which the Apex
Court thought of seminal public importance. The relevant observations read
thus:
"8. We have heard Shri Manoj Swarup, Shri R.K. Kapoor, Shri
Sangram S. Saron and Shri R.B. Singhal for the appellants/petitioners
and Shri Ranjit Kumar Solicitor General assisted by Ms. Binu Tamta
for the respondents-Union of India. Before we embark upon the
course to be adopted, we deem it apposite to advert to the relevant
portion of the exposition of this Court in E. Micheal Raj (supra). This
is a decision of two Judges Bench. In paragraph 15 of the reported
judgment, the Court observed thus: (SCC pp. 168-69)
"15. It appears from the Statement of Objects and Reasons
of the amending Act of 2001 that the intention of the
legislature was to rationalize the sentence structure so as to
ensure that while drug traffickers who traffic in significant
quantities of drugs are punished with deterrent sentence, the
addicts and those who commit less serious offences are
sentenced to less severe punishment. Under the rationalised
sentence structure, the punishment would vary depending
upon the quantity of offending material. Thus, we find it
difficult to accept the argument advanced on behalf of the
respondent that the rate of purity is irrelevant since any
preparation which is more than the commercial quantity of
250 gm and contains 0.2% of heroin or more would be

punishable under Section 21(c) of the NDPS Act, because the
intention of the legislature as it appears to us is to levy
punishment based on the content of the offending drug in
the mixture and not on the weight of the mixture as such.
This may be tested on the following rationale. Supposing 4
gm of heroin is recovered from an accused, it would amount
to a small quantity, but when the same 4 gm is mixed with
50 kg of powdered sugar, it would be quantified as a
commercial quantity. In the mixture of a narcotic drug or a
psychotropic substance with one or more neutral
substance(s), the quantity of the neutral substance(s) is not
to be taken into consideration while determining the small
quantity or commercial quantity of a narcotic drug or
psychotropic substance. It is only the actual content by
weight of the narcotic drug which is relevant for the purposes
of determining whether it would constitute small quantity or
commercial quantity. The intention of the legislature for
introduction of the amendment as it appears to us is to
punish the people who commit less serious offences with less
severe punishment and those who commit grave crimes,
such as trafficking in significant quantities, with more severe
punishment."
(emphasis supplied)
The principle stated in this decision is that the rate of purity of the
drug is decisive for determining the quantum of sentence-for "small",
"intermediary" or "commercial" quantity. The punishment must be
based on the volume or content of the offending drug in the mixture
and not on the aggregate weight of the mixture as such. In other
words, the quantity of the neutral substance is not to be taken into
consideration while determining the small quantity or commercial
quantity of a narcotic drug or psychotropic substance. It is only the
actual content by weight of the narcotic drug, which is relevant for
the purpose of determining the quantity with reference to the
quantum of punishment.
9 . The respondents have rightly pointed out that the expression
"neutral" substance has not been defined in the Act. That obviously
has been coined by the Court to describe the other component of the
mixture or preparation (other than the specified narcotic drug or
psychotropic substance). We are also in agreement with the
respondents that, the said decision nowhere makes reference to Note
2 (two) of the notification dated 19.10.2001 and that the same may
have some bearing on the issue under consideration. This decision
also does not refer to entry no. 239 and the interplay between the
various provisions alluded to earlier while noting the argument of the
respondents. That may have some bearing on the issue that has been
finally answered. The judgment, however, after quoting the
notification dated 19.10.2001 took note of the purpose for which
Amendment Act of 2001 was brought into force and then proceeded
to hold that to achieve the said purpose of rationalisation of the
sentence structure, the purity of the narcotic drug from the recovery

or seizure made from the offender would be a decisive factor. In
other words, the actual content or weight of the narcotic drug or
psychotropic substance alone should be reckoned. For taking that
view support was drawn from the observations made in another two
Judges Bench decision in the case of Ouseph @ Thankachan Vs.
State of Kerala MANU/SC/1672/2001 : (2004) 4 SCC 446 which,
however, has also not elaborately dealt with the issue finally
answered in E. Micheal Raj (supra).
1 0 . It was possible to examine the wider issues raised by the
respondents upon accepting their argument that the decision in E.
Micheal Raj (supra) is per incuriam. However, in our view, that
decision has interpreted Section 21 of the Act. That interpretation
would bind us. Moreover, that decision has been subsequently noted
in other decisions of this Court in the case of Harjit Singh Vs. State
of Punjab 4, Kashmiri Lal Vs. State of Haryana, State Through
Intelligence Officer, and Narcotics Control Bureau Vs. Mushtaq
Ahmad and Others - followed or distinguished. In Amarsingh
Ramjibhai Barot vs. State of Gujarat, quantity of entire mixture was
reckoned and not limited to the pure drug content therein.
Significantly, in none of these decisions, was the Court called upon
to examine the issues now raised by the respondents. Further, all
these decisions are of two Judges Bench.
1 1 . Thus, considering the significance of the issues raised by the
respondents and the grounds of challenge of the
appellants/petitioners concerning the impugned notification, to
observe judicial rectitude and in deference to the aforementioned
decisions we direct that these matters be placed before atleast a
three Judges Bench for an authoritative pronouncement on the
matters in issue, which we think are of seminal public importance.
12. The three Judges Bench may have to consider, amongst others,
the following questions:
12.1 Whether the decision of this Court in E. Micheal Raj
(supra) requires reconsideration having omitted to take note
of entry no. 239 and Note 2 (two) of the notification dated
19.10.2001 as also the interplay of the other provisions of
the Act with Section 21?
12.2 Does the impugned notification issued by the Central
Government entail in redefining the parameters for
constituting an offence and more particularly for awarding
punishment?
12.3 Does the Act permit the Central Government to resort
to such dispensation?
12.4 Does the Act envisage that the mixture of narcotic drug
and seized material/substance should be considered as a
preparation in totality or on the basis of the actual drug
content of the specified narcotic drug?

1 2 . 5 Whether Section 21 of the Act is a stand alone
provision or intrinsically linked to the other provisions
dealing with "manufactured drug" and "preparation"
containing any manufactured drug?
13. It will be open to the parties to persuade the larger Bench to
reformulate the aforementioned questions or frame additional
question(s), if they so desire."
8.10 It is quite clear from the said decision in the case of 'HIRA SINGH AND
ANOTHER'(Supra) that reference to the Larger Bench by the Apex Court is,
bearing in mind the importance it has on every matter which is being tried
under the provisions of the NDPS Act. This Court cannot be oblivious of the
fact that the decision of 'E. MICHEAL RAJ' (Supra), it has not been held per in
curium, however, by the Apex Court. Although, this aspect is to be mainly
and essentially seen at the time of punishing a person, where the contraband
article seized falls under the small, commercial or intermediary category, at
the stage of grant of regular bail also, it would assume importance. Even
being alive to the reference to the three judges Bench on the issue of
contraband article, according to the prosecution, the same is 0.232 gms.,
going by the decision of the Apex Court in 'E. MICHEAL RAJ' (Supra).
PANCHNAMA:
8.11 This will take this Court to the challenge with regard to change of
venue of panchnama from the residence of A-1 to Circuit House and also
challenge to the procedure adopted by the NCB, while carrying out the same.
In this regard, profitable it would be to refer to the decision of the Apex
Court in 'ABDUL SALIM ABDUL MUNAF SHAIKH @ SALIMBHAI & ANOTHER
VS. NARCOTICS CONTROL BUREAU AND ANOTHER', 2010 (4) GLR 2985,
wherein, it is observed that the standing instructions by NCB require that
weighing, taking of samples, packing and sealing of samples etc. should be
done at the place of seizure. However, the Apex Court held that not doing of
said tasks at the place of seizure would not render seizure doubtful and
deviation from standing instructions, for justifiable and valid reasons, is
permissible. Since, it is for the Court concerned to look into the validity of
those reasons. It is, therefore, premature for this Court to conclude on that
aspect, while deciding the application for regular bail.
8 .1 2 This Court is conscious that it is neither deciding appeal nor is it
deciding revision and it is at the stage of pending trial that the applicant is
before this Court for regular bail. This is an application for regular bail qua
the serious offence under the NDPS Act, the applicant is charged with and the
trial is not likely to begin in the near future. It is a well laid down law as to
when the regular bail can be granted. Moreover, Section 37 of the NDPS Act
is also to be regarded, while considering this request, where, this Court
needs to consider existence of prima facie case and those broad principles,
which have been laid down by the Apex Court in catena of decisions and
particularly, as concised in 'SANJAY CHANDRA' (Supra). Neitherit is required
to appreciate any evidence nor to conclude on any of the aspects. The broad
possibility of prima facie involvement is if considered, it is revealed from the
record that four packets were seized, i.e. two from the office of Shree
Mahabali Express Pvt. Ltd. and other two from the residence of A-1. Further,

the identification of A-3 is through the photograph by the personnel of the
courier company, which is a procedure, as rightly pointed out by the learned
Sr. Counsel, Mr. Raju, it is not acceptable under the procedural law. So far as
the supply to the courier company at Mumbai and its sending of the articles
abroad are the questions to be determined by the Court concerned, at the
relevant point of time, after permitting the prosecution to adduce evidence
and to appreciate the same, as is necessary under the law.
8.13 Suffice to hold, at this stage, that the case of the NCB is of continuous
export of the contraband to the foreign countries through the courier
company based at Mumbai and New Delhi. It is, further, revealed from the
record that the investigation qua those courier companies is under progress.
Therefore, the limited case qua the present applicant will have to be
considered under Section 67 of the NDPS Act.
8.14 This takes this Court to the question of involvement with the aid of
statements recorded under Section 68 of the NDPS Act.
8.15 It is not in dispute that prior to the arrest of all the three accused,
these statements have been recorded by the NCB. Firstly, the statement of A-
1 came to be recorded on 28.03.2017, who revealed the names of A-3 and A-
2, i.e. the present applicant. Therefore, both A-2 and A-3 were called and
their statements under Section 67 of the NDPS Act came to be recorded,
which subsequently led to their arrest. The details with regard to the supply
of the contraband abroad, is prima facie also revealed in their statements. As
can be noticed, in all matters under the NDPS Act, the heavy reliance is
placed on the statements recorded under Section 67 of the NDPS Act.
8.16 If, one looks at the details provided by each of the accused in their
respective statement, recorded under Section 67 of the NDPS Act, they reveal
as to how extensively and hos systematically, the supply of drugs to USA and
Canada continued. The regular contact based at USA and Canada and sending
of them of the bottles of 'Kamini Vidravan Rus' on regular basis. It is also the
revelation of sending of consignment for about seven times, consisting 650
bottles per consignment and earning of huge amounts by the accused.
8 .1 7 In the case of 'UNION OF INDIA VS. BAL MUKUND AND OTHERS'
(Supra), the conviction was solely based on confessional statement of the
co-accused, where, the Apex Court held that the conviction should not be
based solely on the basis of statement of the co-accused, without
independent corroboration, especially when retracted. The Court, further,
held that holistic approach needs to be taken by weighing evidentiary value
of the confessional statement to see the ground realities, since, the
authorities under the NDPS Act can always show that the accused was not
arrested before such statement was recorded.
8.18 In the case of 'TOFAN SINGH VS. STATE OF TAMIL NADU' (Supra), the
statement under Section 67 of the NDPS Act was recorded by the NDPS
Officer, who was allegedly the investigating officer, as provided under
Section 53, and who also had made the seizure and arrest under Section 42
of the NDPS Act. The question before the Apex Court was whether, such a
statement can be made a sole basis, by construing the same as substantial
evidence, to record conviction. Considering the fact that such a confession

was retracted, the Apex Court referred the matter to the larger Bench to
decide the specific issue and the related issues with the same. It would be
vital, at this stage, to reproduce relevant observations, which read thus:
"16. A perusal of the impugned judgment reveals that as many as six
arguments were advanced before the High Court, attacking the
findings of the learned trial Court. Taking note of these grounds of
appeal, the High Court framed the questions in para 12 of the
judgment. We reproduce herein below those six questions
formulated by the High Court which reflected the nature defence:
(i) Whether Section 50 of the NDPS Actis complied with or
not?
(ii) Whether the provisions of Section 42 of the NDPS Act is
complied with or not?
(iii) Whether non-examination of drivers and non-seizure of
vehicle/car are fatal to the case of the prosecution?
(iv) Whether Section 67 statements of the accused is
reliable?
(v) Whether accused 2 is entitled to invoke Section 30 of the
NDPS Act?
(vi) Whether conviction and sentence passed by the trial
Court is sustainable?
17. Obviously, all these questions have been answered by the High
Court against the appellant herein as the outcome of the appeals has
gone against the appellant. However, it is not necessary to mention
the reasons/rationale given by the High Court in support of its
conclusion in respect of each and every issue. We say so because of
the reason that all the aforesaid contentions were not canvassed
before us in the present appeal. Thus, eschewing the discussion
which is not relevant for these appeals, we would be narrating the
reasons contained in the impugned judgment only in respect of those
grounds which are argued by Mr. Sushil Kumar Jain, learned Counsel
appearing for the appellant, that too while taking note of and dealing
with those arguments.
THE ARGUMENTS:
18. After giving brief description of the prosecution case, in so far as
the alleged involvement of the appellant is concerned. Mr. Sushil
Kumar Jain drew our attention to the following aspects as per the
prosecution case itself:
(a) In the present case in the prior secret information with
the police, there was no prior information with regard to the
appellant herein. The secret information (Ex. P-72) does not
disclose the name of the appellant at all.
(b) On the date of incident also, the appellant was found

sitting on the front seat alongwith the two drivers who have
been let off by the investigating agency itself and the
ambassador car from which the recoveries had been effected
has also not been seized. The said drivers could have been
the best witnesses but they have not been examined by the
prosecution.
(c) The recovery of the narcotic substance was made at the
instance of A1 and A2 (and not the appellant herein), who
while sitting on the back seat took out a green colour bag
from beneath their seat and handed it over to PW. 7. The
appellant cannot be said to be in conscious possession of
the narcotic substance.
(d) In the search conducted of the appellant herein, the
raiding party found Indian currency of Rs. 680/- (vide Ex. P-
11) which is M.O. 15 and two second class train tickets from
Shamgarh to Chennai. Thus no incriminating material has
been recovered from the appellant. Further there is also no
recovery of any mobile phone from the appellant herein
which could link the appellant with the other co- accused.
(e) The prosecution case hinges solely upon the confessional
statement of the appellant herein (Ex. P-9), which was
recorded by PW. 2-R. Murugan under Section 67 of the Act,
and the same person acted as the investigating officer in the
present case.
1 9 . From the above, Mr. Jain argued that there was no evidence
worth the name implicating the appellant except the purported
confessional statement of the appellant recorded under Section 67 of
the NDPS Act. After drawing the aforesaid sketch, Mr. Jain
endeavoured to fill therein the colours of innocence in so far as the
appellant is concerned with the following legal submissions:-
(I) It was argued that the conviction of the appellant is
based upon a purported confessional statement (Ex. P-9]
recorded by PW. 2 R. Murugan under the provisions of
Section 67 of the NDPS Act, which did not have any
evidentiary value. Mr. Jain submitted in this behalf that:
(a) There is no power under Section 67 of the NDPS Act to
either record confessions or substantive evidence which can
form basis for conviction of an accused, in as much as:
(i) The scheme of the Act does not confer any power upon
an officer empowered under Section 42 to record
confessions since neither a specific power to record
confession has been conferred as was provided under
Section 15 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (TADA) or under Section 32 of the
Prevention of Terrorism Act, 2002 (POTA) nor the power
under Section 67 is a power to record substantive "evidence"
as in Section 108 of the Customs Act or Section 14 of the

Central Excise Act which are deemed to be judicial
proceedings as specifically provided under Section 108(4) of
the Customs Act or Section 14(3) of the Central Excise Act.
(ii) The powers under Section 67 has been conferred upon
an officer under Section 42 so that such officer can
effectively perform his functions. The power under Section
67 is incidental to and intended to enable an officer under
Section 42 to effectively exercise his powers of entry,
search, seizure or arrest which is provided under Section 42
of the Act. The powers under Section 67 are powers to "call
for information" which information can thereafter form the
basis for satisfaction of "reasons to believe by personal
knowledge or information" appearing in Section 42 and
which a jurisdictional basis and a pre-condition to exercise
powers under Section 42 of the Act. Absence of reasons to
believe or information would render the exercise under
Section 42 of the Act bad in law and hence in order to derive
the said information power has been conferred under Section
67 to an officer empowered under Section 42. This
statement is, therefore, merely "Information" subject to
investigation and cannot be treated as substantive evidence.
(b) Pitching this argument to the next level, it was submitted
that the power under Section 67(c) of the Act is merely a
power to examine any person acquainted with the facts and
circumstances of the case. Such statements are not required
in law to be truthful as provided under Section 161(2) of the
Criminal Procedure Code, which required the person making
statement to a police officer under Section 161 Cr.P.C. to
make a true statement. Even such a statement made under
Section 161 Cr.P.C. is not a substantive evidence on which a
conviction can be based. Statements under Section 67 are
not required in law to be given truthfully and hence cannot
in any case be treated to be a substantive evidence. Further
statement under Section 67 are not recorded after
administration of oath as is required under Section 164(5) of
the Criminal Procedure Code, the officers are not competent
to administer oaths and, therefore, the statements under
Section 67 cannot be substantive evidence for recording
conviction.
(c) Taking the arguments to a still higher pedestal, Mr. Jain's
effort was to demonstrate that the officer recording the
statement was a police officer and, therefore, such a
statement was hit by Section 25 of the Indian Evidence Act.
He submitted that an officer empowered under Section 42 of
the Act has been conferred with substantive powers which
are powers available to a police officer for detection and
prevention of crime. The learned Counsel placed heavy
reliance upon the ratio of the judgment of the Constitution
Bench of this Court in the case of Batku Jyoti Sawat Vs.
State of Mysore 1966 (3) SCC 698 which accepted a broader

view, as laid down in the case of Rajaram Jaiswal Vs. State
of Bihar MANU/SC/0065/1963 : 1964 (2) SCR 752 and State
of Punjab Vs. Barkat Ram MANU/SC/0021/1961 : 1962 (3)
SCR 338. It was submitted that in view of the ratio of the
above judgments, officers empowered under Section 42 and
conferred with powers to enter, search, seize or arrest are
"police officers" properly so called and hence statements
made to such officers would be hit by the provisions of
Section 25 of the Evidence Act. In any case such officers
would come within the meaning of term "person in
authority" and hence the statements recorded by such
officers would be hit by the provisions of Section 24 of the
Evidence Act especially since the statements were not
voluntary and had been retracted by the accused.
(d) In the alternate, the submission of Mr. Jain was that
even if it is assumed, without admitting, that Section 67
confers powers to record confessions, the status of a
statement recorded by an officer under Section 42 of the Act
can at best be recorded as "extra judicial confession" and no
conviction can be based solely on the basis of extra judicial
convictions.
(e) It was also argued that in any case the statement under
Section 67 was retracted and as such the confession in the
present case is a retracted confession which ought to have
been investigated and could have been used only to
corroborate other evidence and not as a substantive
evidence itself. He submitted that no conviction can be
based on uncorroborated retracted confessional statement as
held in Noor Aga Vs. State of Punjab MANU/SC/2913/2008 :
2008 (9) SCALE 681.
(II) Next submission of Mr. Jain was that there was complete
absence of Fair Investigation and Non-compliance of the
provisions of Section 52(3) of the Act-Pointing out that in
the present case the appellant had been arrested by PW. 2-R.
Murugan after recording statement under Section 67 of the
Act, the ld. Counsel made a fervent plea to the effect that it
was evident that PW. 2 R. Murugan was exercising purported
powers conferred to an officer under Section 42 of the Act. It
was submitted that Section 52(3) of the Act casts an
obligation on an officer empowered under Section 42 of the
Act to forward, without unnecessary delay every person
arrested or article seized to either an officer-in- charge of a
police station or an officer empowered under Section 53.
According to him, since there is an obligation to forward
such person arrested or article seized, to an officer under
Section 53 or an officer-in-charge of the police station, it
necessarily follows that an officer under Section 42 would be
different and distinct from an officer invested with the task
of investigation, i.e., either the officer-in-charge of the
police station or an officer empowered under Section 53 of

the Act. In the present case, however, the PW. 2 R. Murugan
recorded the statement of the appellant under Section 67
and thereafter arrested him. He was, therefore, required to
forward the statement as well as the appellant to the
Investigating officer in terms of Section 52(3). Instead, he
himself became the Investigating Officer in the present case,
which amounted to non-compliance of Section 52(3) read
with Section 58 of the Act. Fair investigation demands
existence of an independent investigating agency which is
also contemplated and is evident from the scheme of NDPS
Act. It was submitted that since Section 58 of the Act
provides for punishment for vexatious entry, search, seizure
and arrest, the conduct of the officer arresting or an officer
under Section 42 is subject matter of investigation by an
independent agency and hence PW. 2 R. Murugan could not
have been made an investigating officer in the present case
after he has already acted and exercised powers under
Section 42 of the Act.
(III) Another submission of Mr. Jain was that trial was
initiated because of Non-compliance of the Provisions of
Section 57 of the Act-It was submitted that Section 57
requires that whenever any person makes any arrest or
seizure under the Act, then a report thereof has to be
submitted of such arrest or seizure to his immediate superior
officer. In the present case the raiding party comprised of
PW. 6-Gunabalan, Superintendent-PW. 7 Aruldoss,
Intelligence Officer, PW. 10 Sendhil Murugan, Intelligence
Officer and two other staff members i.e., one Sepoy and one
driver. It was submitted that the senior most officer among
the raiding team was PW. 6 Gunabalan who was, therefore,
exercising powers under Section 42 of the Act and the other
officers being his subordinates were assisting him in
exercise of such powers. Therefore, the report contemplated
under Section 57 ought to have been made by PW. 6
Gunabalan to his immediate superior officer but instead, in
the present case PW. 7 Aruldoss has submitted a report to
PW. 6 Gunabalan under Section 57 of the Act with regard to
seizure and PW. 2 R. Murugan has submitted report to PW. 6
Gunabalan under Section 57 with regard to arrest of the
appellant herein. It is, thus, submitted that there is a
complete non-compliance of the provisions of Section 57 of
the Act which has vitiated the safeguards provided under the
Act and as such the appellant could not have been convicted.
2 0 . Arguing on behalf of the prosecutor, Mr. S. Nanda Kumar,
learned Counsel submitted that the appellant had given voluntary
statement that discloses his involvement in the commission of the
offence alongwith other accused persons. In the statement he has
categorically admitted having bringing 5.250 kgs of heroin/narcotic
substance from Maniki Village, District Mandsaur, Rajasthan to
Chennai by Jaipur-Chennai Express along with other co-accused
Badrilal Sharma wearing RPF Uniform till Nelore, Andhra Pradesh. He

has also admitted that, thereafter, the other accused namely Guddu
Singh @ Vikram Singh and Bapulal Jain picked them in a car and
proceeded to Chennai. It is on the way that these accused persons
were caught by the respondent's officials and based on their
confession as well as the material seized, the case was registered.
He also pointed out that it has come on record that Babulal Jain
(declared as absconder) and Guddu Singh were involved in the
similar offence by selling 8 Kgs. of heroin on earlier occasions which
was handed over to Prem @ Kannan, a Srilankan National, another
co-accused in this case. It was the second time that the accused
persons planned to smuggle the heroin to Srilanka.
21. Refuting the submissions of the appellant, it was submitted that
the confessional statement recorded under Section 67 of the NDPS
Act could be acted upon, as the officer recording statement under
this provision under Section 67 is not a "police officer" and,
therefore, such a statement is not hit by the provisions of Section 24
to 27 of the Evidence Act or Article 20(3) of the Constitution of
India. His submission was that law on this aspect had already been
settled by the judgment of this Court in Kanhaiyalal v. Union of
India; MANU/SC/7047/2008 : 2008 (4) SCC 668 as well as Raj
Kumar Karwal v. Union of India; MANU/SC/0014/1991 : 1990(2)
SCC 409. The learned Counsel pointed out that judgment relied upon
by the appellant pertains to other Acts like Customs Act etc. whereas
the aforesaid judgments specifically dealt with the nature of duties
performed by officers under the NDPS Act and, therefore, on this
issue Raj Kumar (Supra) and Kanhaiyalal (Supra) were the binding
precedents. He also submitted that as per Section 67 of NDPS Act,
any officer referred to in Section 42 of NDPS Act was empowered to
obtain a statement. Once the said statement is made it can also be
construed as confessional statement since there is no specific
provision in the Act to obtain the confessional statement from the
accused. Therefore, such a statement of the appellant was rightly
relied upon resulting into his conviction.
22. The learned Counsel for the state also countered the submission
of the appellant that the officer acting under Section 53 of the NDPS
Act i.e. the investigating officer had to be necessarily different from
the officer who is acting under Section 42 of the NDPS Act. He
submitted that Sections 42, 53 and 67 of NDPS Act do not bar the
officer authorized under the act to conduct, search, seizure,
investigate and enquire into the matter. His submission was that the
depositions of PW. 2-Murugan, Intelligence Officer, PW. 6-
Gunabalan, Superintendent and PW. 10-Senthil Murugan, Intelligence
Officer establish that they are empowered to act under Section 42,
53 and 67 of the NDPS Act.
23. The learned Counsel also highlighted incriminating facts as per
the records viz. the raid team was led by PW. 6-Gunabalan,
Superintendent along with the PW. 10 A. Senthil Murugan,
Intelligence Officer and one Aruldoss, Intelligence officer. Also two
other officials conducted the raid and made a search and seizure of
the heroin on 24.10.2004 at 12.00 hrs. at GNT Road, 100 ft. road,

Madhavaram in Chennai where the vehicles come from Nellore,
Andhra Pradesh towards Chennai Junction. After the seizure, PW. 2-
Murugan enquired into the matter as per the direction of the
superintendent. He also obtained the voluntary statement under
Section 67 of the NDPS Act. The accused also gave another
statement for supply of heroin to Guddu Singh. The confessional
statement of Badrilal Sharma, who travelled alongwith
accused/appellant was also recorded. The confessional statement of
absconded accused viz. Babulal Jain is also on the original record. In
addition to that, the Identity Card of Badrilal Sharma and the train
tickets of the appellant and Badrilal Sharma, as both of them
travelled together, have come on record. All this proves that the
appellant was in possession of the heroin 5.250 Kgs. and carried it
from Rajasthan to Chennai with intention to smuggle the same to
Srilanka, when he was caught. He thus pleaded that conviction and
sentence of the appellant was rightly recorded by the courts below,
which warranted no interdicting by this court.
2 4 . From the arguments noted above, it would be clear that the
appellant has challenged the conviction primarily on the following
grounds:-
(i) The conviction is based solely on the purported
confessional statement recorded under Section 67 of the
NDPS Act which has no evidentiary value in as much as:
(a) The statement was given to and recorded by an officer
who is to be treated as "Police Officer" and is thus, hit by
Section 25 of the Indian Evidence Act.
(b) No such confessional statement could be recorded under
Section 67 of the NDPS Act. This provision empowers to call
for information and not to record such confessional
statements. Thus, the statement recorded under this
provision is akin to the statement under Section 161 Cr.P.C.
(c) In any case, the said statement having been retracted, it
could not have been the basis of conviction and could be
used only to corroborate other evidence.
(ii) There was absence of fair investigation and non-
compliance of the provisions of Section 52(3) of the NDPS
Act. This submission is primarily based on the argument that
same person cannot be an officer under Section 42 of the
NDPS Act as well as investigating officer under Section 52 of
the said Act.
(iii) Non-compliance of Section 57 of the NDPS Act is also
alleged because of the reason that P.W. 7 who was the
senior most officer among the raiding team has submitted
the report under Section 57 of the NDPS Act with regard to
arrest of the appellant to P.W. 6. Instead P.W. 6 should have
submitted the report of such arrest to P.W. 7.

25. We shall take up these arguments in seriatim for our discussion:
Evidentiary value of statement u/s. 67 of the NDPS Act.
Before examining this contention of the appellant, it would
be apposite to take note of the provisions of Sections 42, 53
and 67 of the NDPS Act. These provisions read as under:-
4 2 . Power of entry, search, seizure and arrest without
warrant or authorization.
(1) Any such officer (being an officer superior in rank to a
peon, sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence or any other
department of the Central Government including para-
military forces or armed forces as is empowered in this
behalf by general or special order by the Central
Government, or any such officer (being an officer superior in
rank to a peon, sepoy or constable) of the revenue, drugs,
control, excise, police or any other department of a State
Government as is empowered in this behalf by general or
special order of the State Government, if he has reason to
believe from persons knowledge or information given by any
person and taken down in writing that any narcotic drug, or
psychotropic substance, or controlled substance in respect of
which an offence punishable under this Act has been
committed or any document or other article which may
furnish evidence for the commission of such offence or any
illegally acquired property or any document or other article
which may furnish evidence of holding any illegally acquired
property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act is kept or concealed in any
building, conveyance or enclosed place, may between
sunrise and sunset-(a) enter into and search any such
building, conveyance or place;
(b) in case of resistance, break open any door and remove
any obstacle to such entry;
(c) seize such drug or substance and all materials used in
the manufacture thereof and any other article and any animal
or conveyance which he reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under this Act or
furnish evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any
person whom he has reason to believe to have committed
any offence punishable under this Act.
Provided that if such officer has reason to believe that a

search warrant or authorization cannot be obtained without
affording opportunity for the concealment of evidence or
facility for the escape of an offender, he may enter and
search such building, conveyance or enclosed place at any
time between sunset and sunrise after recording the grounds
of his belief.
(2) Where an officer takes down any information in writing
under subsection (1) or records grounds for his belief under
the proviso thereto, he shall within seventy- two hours send
a copy thereof to his immediate official superior.
"53. Power to invest officers of certain departments with
powers of an officer-in-charge of a police station:-(1) The
Central Government, after consultation with the State
Government, may, by notification published in the Official
Gazette, invest any officer of the Department of Central
Excise, narcotics, Customs, Revenue Intelligence or the
Border Security Force or any class of such officers with the
powers of an officer-in-charge of Police Station for the
investigation of the offences under this Act.
(2) The State Government may, by notification published in
the official gazette, invest any officer of the Department of
Drugs Control, Revenue or Excise or any class of such
officers with the powers of an officer- in-charge of a police
station for the investigation of offences under this Act." "67.
Power to call for information etc. Any officer referred to in
Section 42 who is authorized 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 provision 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."
26. We have already taken note of the contentions of Counsel for the
parti es on the interpretation of the aforesaid provisions. To
recapitulate in brief, the submission of Mr. Jain is that there is no
power in the Section 67 of the NDPS Act to either record confessions
or substantive evidence which can form basis for conviction of the
accused. It is also argued that, in any case, such a statement is not
admissible in evidence as the excise official recording the statement
is to be treated as "police officer" and thus, the evidential value of
the statement recorded before him is hit by the provisions of Section
25 of the Indian Evidence Act.
27. The learned Counsel for the respondent had pointed out that in

the case of Kanhaiyalal vs. Union of India; MANU/SC/7047/2008 :
2008(4) SCC 668, it has been categorically held that the officer
under Section 63 is not a police officer. In arriving at that conclusion
the two judge Bench judgment had followed earlier judgment in the
case of Raj Kumar Karwal Vs. Union of India; MANU/SC/0014/1991 :
1990(2) SCC 409.
28. Had the matter rested at that, the aforesaid dicta laid down by
two judge Bench would have been followed by us. However, on the
reading of the aforesaid judgment, we find that the only reason to
conclude that an officer under Section 53 of the NDPS Act was not a
police officer was based on the following observations:
These provisions found in Chapter V of the Act show that there is
nothing in the Act to indicate that all the powers under Chapter XII
of the Code, including the power to file a report under Section 173 of
the Code have been expressly conferred on officers who are invested
with the powers of an officer-in-charge of a police station under
Section 53, for the purpose of investigation of offences under the
Act.
2 9 . We find, prima facie, in the arguments of Mr. Jain to be
meritorious when he points out that the aforesaid observations are
without any detailed discussion or the reasons to support the
conclusion arrived at. Mr. Jain's fervent plea to depart from the view
taken in the said judgment deserved consideration as there is no
provision under the NDPS Act which takes away the power of filing a
report under Section 173 of the Code which is available with an
officer-in-charge of a police station. He further argued that the
provision of Section 173 are contained in Chapter XII of the Code
and since all powers of an officer in-charge of a police station has
been conferred, there is no legal basis to suggest that the said power
is not available with the officer under Section 53 of the Act. Above
all, we find that the judgment in Raj Kumar Karwal (supra) was
considered by this court in few cases but without giving imprimatur,
as can be seen below:
30. Abdul Rashid v. State of Bihar; MANU/SC/1005/2001 : (2001) 9
SCC 578, this Court after noticing the judgment in Raj Kumar Karwal
(supra), chose to apply the Constitution Bench judgment in the case
of Raja Ram Jaiswal reported as MANU/SC/0065/1963 : (1964) 2
SCR 752 and observed thus:-
"Mr. B.B. Singh also brought to our notice a judgment of this
Court in the case of Raj Kumar Karwal v. Union of India in
support of the contention that even a superintendent of
excise under the Bihar and Orissa Excise Act is not a police
officer and as such a confessional statement made to him
would be admissible in evidence. In the aforesaid case, the
question for consideration is whether the officers of the
Department of Revenue Intelligence (DRI) invested with
powers of officer in- charge of a police station under Section
53 are police officers or not within the meaning of Section

25, and this Court answered that those officers are not
police officers. This decision is in pari material with the
Constitution Bench decision in 1966 and does not in any way
detract from the conclusion of this Court in Raja Ram which
we have already noticed. In Pon Adithan v. Dy. Director,
Narcotics Control Bureau this question had not directly been
in issue and the only question that was raised is whether the
statement made was under threat and pressure. It is obvious
that a statement of confession made under threat and
pressure would come within the ambit of Section 24 of the
Evidence Act. This decision therefore would not be direct
authority on the point in issue. In the aforesaid premises,
the decision of Raja Ram would apply to the alleged
confessional statement made by the appellant to the
superintendent of excise and therefore would be
inadmissible in evidence."
31. Both the said judgments i.e. Raj Kumar Karwal (supra) as well
as Kanhiyalal (supra) were thereafter considered by this court in
Noor Aga vs. State of Punjab MANU/SC/2913/2008 : (2008) 9 SCALE
681 where the court, has after considering the entire scheme of the
Customs Act, has held that the officer under Section 53 of the
customs Act is a police officer and would, therefore, attract the
provisions of Section 25 of the Evidence Act. It observed:
"104. Section 53 of the Act, empowers the Customs Officer with the
powers of the Station House Officers. An officer invested with the
power of a police officer by reason of a special status in terms of
sub-section (2) of section 53 would, thus, be deemed to be police
officers and for the said purposes of Section 25 of the Act shall be
applicable."
32. No doubt, Abdul Rashid & Noor Aga were the cases under the
Customs Act. But the reasons for holding custom officer as police
officer would have significant bearing even when we consider the
issue in the context of NDPS Act as well. It would be more so when
the schemes & purport of the two enactments are kept in mind. NDPS
Act is purely penal in nature. In contradistinction, as far as the
Customs Act and the Central Excise Act are concerned, their
dominant object is to protect revenue of the State and penal
provisions to punish the person found offending those laws are
secondary in nature.
33. Further, the NDPS Act is a complete code relating to Narcotic
Substances, and dealing with the offences and the procedure to be
followed for the detection of the offences as well as for the
prosecution and the punishment of the accused. The provisions are
penal provisions which can, in certain cases, deprive a person of his
liberty for a minimum period of 10 years and can also result in
sentences which can extend upto 20 years or even death sentence
under certain circumstances. The provisions therefore have to be
strictly construed and the safeguards provided therein have to be
scrupulously and honestly followed. [See Baldev Singh (1997) 1 SCC

416 Para 28; Union of India vs. Bal Mukund MANU/SC/0515/2009 :
(2009) 12 SCC 161 Para 26, 27 & 28; Balbir Singh vs. State of
Haryana MANU/SC/0197/1987 : (1987) 1 SCC 533].
3 4 . We have also to keep in mind the crucial test to determine
whether an officer is a police officer for the purpose of Section 25 of
the Evidence Act viz. the "influence or authority" that an officer is
capable of exercising over a person from whom a confession is
obtained. The term "police officer" has not been defined under the
Code or in the Evidence Act and, therefore, the meaning ought to
assessed not by equating the powers of the officer sought to be
equated with a police officer but from the power he possesses from
the perception of the common public to assess his capacity to
influence, pressure or coercion on persons who are searched,
detained or arrested. The influence exercised has to be, assessed
from the consequences that a person is likely to suffer in view of the
provisions of the Act under which he is being booked. It, therefore,
follows that a police officer is one who:-
(i) is considered to be a police officer in "common parlance"
keeping into focus the consequences provided under the Act.
(ii) is capable of exercising influence or authority over a
person from whom a confession is obtained.
35. We would also like to point out that Mr. Sushil Kumar Jain had
referred to the provisions of the Police Act as well to support his
submission. The preamble of the Police Act, 1861 (Act 5 of 1861),
which is an Act for the regulation of a group of officers who come
within the meaning of the word "police" provides" "Whereas it is
expedient to re-organize the police and to make it a more efficient
instrument for the prevention and detection of crime, it is enacted as
follows." He argued that from the above, it can be seen that the
primary object of any police establishment is prevention and
detection of crime which may be provided for under the Indian Penal
Code or any other specific law enacted for dealing with particular
offences and bring the guilty to justice. It was submitted by him that
if special authorities are created under special enactments for the
same purpose i.e. prevention and detection of crime, such authorities
would be "Police and have to be understood in the said perspective.
Sections 23 and 25 of the said Act lay down the duties of the police
officers and Section 20 deals with the authority and provides that
they can exercise such authority as provided under the Police Act and
any Act for regulating criminal procedure. Section 5(2) of the
Criminal Procedure Code provides that "all offences under any other
law shall be investigated, inquired into, tried and otherwise dealt
with according to the same provisions, but subject to any enactment
for the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with such
offences.
36. On the strength of these provisions, the argument of the learned
Counsel for the petitioner was that persons categorized as "police

officers" can do all the activities and the statute gives them the
power to enable them to discharge their duties efficiently. Of the
various duties mentioned in Section 23, the more important duties
are to prevent the commission of offences and public nuisances and
to detect and bring offenders to justice and to apprehend all persons
whom the police officer is legally authorized to apprehend. It is
clear, therefore, in view of the nature of the duties imposed on the
police officer, the nature of the authority conferred and also the
purpose of the Police Act, that the powers which the police officers
enjoy are powers for the effective prevention and detection of crime
in order to maintain law and order. According to the learned
Counsel, a comparison to the powers of the officers under the
provisions of the NDPS Act makes it clear that the duties and
responsibilities of the officers empowered under the Act are
comparable to those of the police officers and, therefore, they ought
to be construed as such. It is submitted that the primary objective of
a NDPS Officer is to detect and prevent crime defined under the
provisions of the act and thereafter the procedure has been
prescribed to bring the offenders to justice. Thus, the officers under
the Act are "Police Officers" and statements made to such officers are
inadmissible in evidence.
37. He also drew our attention to the following pertinent observation
of this Court in the case of State of Punjab v. Barkat Ram;
MANU/SC/0021/1961 : (1962) 3 SCR 338.
"Section 5(2) of the Code of Criminal Procedure also contemplates
investigation of, or inquiry into, offences under other enactments
regulating the manner or place of investigation, that is, if an act
creates an offence and regulates the manner and place of
investigation or inquiry in regard to the said offence, the procedure
prescribed by the Code of Criminal Procedure will give place to that
provided in that Act. If the said Act entrusts investigation to an
officer other than one designated as police officer, he will have to
make the investigation and not the police officer. In this situation,
the mere use of the words "police officer" in section 25 of the
Evidence Act does not solve the problem, having regard to
permissible rules of interpretation of the term "police officer" in that
section. It may mean any one of the following categories of officers:
(i) a police officer who is a member of the police force constituted
under the Police Act; (ii) though not a member of the police force
constituted under the Police Act, an officer who by statutory fiction is
deemed to be a police officer in charge of a police station under the
Code of Criminal Procedure; and (iii) an officer on whom a statute
confers powers and imposes duties of a police officer under the Code
of Criminal Procedure, without describing him as a police officer or
equating him by fiction to such an officer. Now, which meaning is to
be attributed to the term "police officer" in a section 25 of the
Evidence Act? In the absence of a definition in the Evidence Act it is
permissible to travel beyond the four corners of the statute to
ascertain the legislative intention. What was the meaning which the
legislature intended it give to the term "police officer" at the time the
said section was enacted? That section was taken out of the Criminal

Procedure Code, 1861 (Act 25 of 1861) and inserted in the Evidence
Act of 1872 as section 25. Stephen in his Introduction to the
Evidence Act states at p. 171 thus:
"I may observe, upon the provisions relating to them, that
sections 25, 26 and 27 were transferred to the Evidence Act
verbatim from the Code of Criminal Procedure, Act XXV of
1861. They differ widely from the law of England, and were
inserted in the Act of 1861 in order to prevent the practice of
torture by the police for the purpose of extracting
confessions from persons in their custody. "
So too, Mahmood, J., in Queen Empress v. Babulal I.L.R. (1884) 6
All 509, gave the following reasons for the enactment of section 25
of the Evidence Act at p. 523.
"........... the legislature had in view the malpractices of police
officers in extorting confessions from accused persons in order to
gain credit by securing convictions, and that those malpractices went
to the length of positive torture; nor do I doubt that the Legislature,
in laying down such stringent rules, regarded the evidence of police
officers as untrustworthy, and the object of the rules was to put a
stop to the extortion of confessions, by taking away from the police
officers as the advantage of proving such exported confessions
during the trial of accused persons. "
It is, therefore, clear that section 25 of the Evidence Act was enacted
to subserve a high purpose and that his to prevent the police from
obtaining confessions by force, torture or inducement. The salutary
principle underlying the section would apply equally to other
officers, by whatever designation they may be known, who have the
power and duty to detect and investigate into crimes and is for that
purpose in a position to extract confessions from the accused.
"..Shortly stated, the main duties of the police are the prevention
and detection of crimes. A police officer appointed under the Police
Act of 1861 has such powers and duties under the Code of Criminal
Procedure, but they are not confined only to such police officers. As
the State's power and duties increased manifold, acts which were at
one time considered to be innocuous and even praiseworthy have
become offences, and the police power of the State gradually began
to operate on different subjects. Various Acts dealing with Customs,
Excise, Prohibition, Forest, Taxes etc., came to be passed, and the
prevention, detection and investigation of offences created by those
Acts came to be entrusted to officers with nomenclatures appropriate
to the subject with reference to which they functioned. It is not the
garb under which they function that matters, but the nature of the
power they exercise or the character of the function they perform is
decisive. The question, therefore, in each case is, does the officer
under a particular Act exercise the powers and discharge the duties
of prevention and detection of crime? If he does, he will be a police
officer."

38. In our view the aforesaid discussion necessitates a re-look into
the ratio of Kanhiyalal Case. It is more so when this Court has
already doubted the dicta in Kanhaiyalal (supra) in the case of
Nirmal Singh Pehalwan MANU/SC/0957/2011 : (2011) 12 SCC 298
wherein after noticing both Kanhiyalal as well as Noor Aga, this
Court observed thus:
"15. We also see that the Division Bench in Kanhaiyalal
case; MANU/SC/7047/2008 : 2008 (4) SCC 668; (2008) 2
SCC (Crl.) 474, had not examined the principles and the
concepts underlying Section 25 of the Evidence Act vis.-a-
vis. Section 108 of the Customs Act the powers of Custom
Officer who could investigate and bring for trial an accused
in a narcotic matter. The said case relied exclusively on the
judgment in Raj Kumar's case (Supra). The latest judgment
in point of time is Noor Aga's case which has dealt very
elaborately with this matter. We thus feel it would be proper
for us to follow the ratio of the judgment in Noor Aga's case
particularly as the provisions of Section 50 of the Act which
are mandatory have also not been complied with."
39. For the aforesaid reasons, we are of the view that the matter
needs to be referred to a larger Bench for reconsideration of the
issue as to whether the officer investigating the matter under NDPS
Act would qualify as police officer or not.
4 0 . In this context, the other related issue viz. whether the
statement recorded by the investigating officer under Section 67 of
the Act can be treated as confessional statement or not, even if the
officer is not treated as police officer also needs to be referred to the
larger Bench, inasmuch as it is intermixed with a facet of the 1st
issue as to whether such a statement is to be treated as statement
under Section 161 of the Code or it partakes the character of
statement under Section 164 of the Code.
41. As far as this second related issue is concerned we would also
like to point out that Mr. Jain argued that provisions of Section 67 of
the Act cannot be interpreted in the manner in which the provisions
of Section 108 of the Customs Act or Section 14 of the Excise Act
had been interpreted by number of judgments and there is a
qualitative difference between the two sets of provisions. In so far as
Section 108 of the Customs Act is concerned, it gives power to the
custom officer to summon persons "to give evidence" and produce
documents. Identical power is conferred upon the Central Excise
Officer under Section 14 of the Act. However, the wording to Section
67 of the NDPS Act is altogether different. This difference has been
pointed out by Andhra Pradesh High Court in the Case of Shahid
K han vs. Director of Revenue Intelligence; MANU/AP/0972/2001 :
2001 (Criminal Law Journal) 3183.
42. The Registry is accordingly directed to place the matter before
Hon'ble the Chief Justice for the decision of this appeal by a larger
Bench after considering the issues specifically referred as above."

8 .1 9 Undoubtedly, the reference to the larger Bench for
determination of issue shall take place at the hands of the
Apex Court and, at the time of final decision, that aspect
would also need to be taken into consideration by the trial
Court along with other aspects. However, for now, this Court
needs to determine, going by the decision of the Apex Court
in 'E. MICHEAL RAJ' (Supra), the ratio laid down, therein,
which is still not diluted, the quantity becomes intermediary
quantity so far the rigor of Section 37 of the NDPS is
concerned, where the Court needs to satisfy itself that there
are reasonable grounds to believe that the person is not
guilty of the offence and that the accused is not likely to
commit any offence while on bail etc.. Nonetheless, the
Court cannot be oblivious of the pure quantity of drug,
weighing 0.232 kilo grams (0.232 gms.).
8.20 In 'HIRA SINGH AND ANOTHER VS. UNION OF INDIA
AND ANOTHER' (Supra) also, the Apex Court has referred the
matter to the larger Bench. However, in the case on hand,
the statement made under Section 67 of the NDPS Act, which
is sought to be relied on by the NCB, is not of the co-
accused, but, it is of the present applicant, himself. The
aspect, as to whether, the NDPS Officer is a Police Officer or
not, shall be decided by the larger Bench. The decisions
prevailing, at present, are not rendered either per curium or
otherwise for any other reason not declared not to hold
ground. Therefore, this Court needs to take into
consideration."
6.12. So far as the question, as to whether NCB Officers are Police Officers or not, as
is held by the Apex Court in 'RAJ KUMAR KARWAL VS. UNION OF INDIA AND
OTHERS', MANU/SC/0014/1991 : (1990) 2 SCC 409, the Apex Court has held that the
officers of the Department of Revenue Intelligence are not the police officers within
the meaning of Section 25 of the Indian Evidence Act, 1872, and the confessional
statements recorded by such officers during the course of investigation of the
accused persons are admissible in evidence.
6.13. In wake of the above, till the reference made to the larger Bench is decided
finally, this decision shall be binding on this Court, and therefore, the action on the
part of the NCB Officers and the very arrest of the petitioner, consequent upon the
recording of his statement under Section 67 of the NDPS Act, cannot be held to be
contrary to the provisions of law nor can it be said to be illegal custody.
6.14. So far as the request made by the petitioner for regular bail is concerned, it is
linked to the first question of seeking the declaration of the custody of the petitioner
being illegal. However, on, independently, examining the same, it can be noticed that
the trial Court has considered his application under Section 37 of the NDPS Act and it
did not find fit to consider his request on the ground of non-breach of any mandatory
provision and bearing in mind the huge quantity of the contraband, which weighs
about 1445 Kgs., which was recovered from the vessel along with its eight crew
members, where, the petitioner's brother was its captain and with whom, the
petitioner was in constant touch. His prima facie direct involvement is also one of the
grounds for the trial Court to reject his request for regular bail.

6.15. On examining the request for grant of regular bail independently, the only
factor, which is in favour of the present petitioner, is that he is of young age and
good educational background, who happens to be the brother of the Captain of the
vessel, who is one of the co-accused and has played a key-role in bringing the huge
quantity of contraband to the Indian Coast. It is also not out of place to make a
mention that the captain of the vessel and the brother of the present petitioner
through his satellite phone remained in constant touch with Vishal, Irgan and the
other co-accused including the present petitioner. It is urged that there is no offence
in intimating the brother about the work details. However, if it is about a commercial
deal, which is prohibited, the difficulties start for the family members, as well. The
present petitioner, thus, being fully conscious of the implications of the sharing of
the details of selling of the contraband through Vishal and Irfan also is found to be in
constant touch with them. His CDRs also reflect this aspect. The revelations made by
the petitioner in his statement recorded under Section 67 of the NDPS Act prima facie
also speaks of his complicity.
6.16. Apart from this, legal submissions, even if, the confessional statement made
by the petitioner on 04.08.2017 is not regarded, there are other prima facie,
overwhelming evidence against the present petitioner in the form of CDRs so also the
Whatsapp conversation with Vishal and Irfan so also his own brother, Suprit.
Considering the huge quantity of the contraband, which is seized from the vessel MV
Henry by the NCB with the help of the Indian Coast Guard, this Court is of the
opinion that his release, at this stage, especially when, the case is at a very crucial
stage and the vital evidences are to come on record yet, would have a tendency of
thwarting the course of justice. Moreover, Section 37 of the NDPS Act also would not
permit this Court to hold, at this stage, from the evidence, which have come on
record and there are no reasonable grounds for believing that the petitioner is not
guilty of such an offence and that the grant of liberty is not likely to thwart the
course of justice.
6.17. Incidentally, it is required to be mentioned that in the confessional statement
made by the petitioner under Section 67 of the NDPS Act, he has stated that at the
instance of the IO, he had read out the entire chat made on Whatsapp between him
and his brother and Vishal. He also had read out phone-call chat made, after hearing
the phone chat. This has been replied to in the affidavit-in-reply stating that apart
from his statement, the details of CDRs are also enclosed with the complaint. Apart
from that there are Whatsapp conversations amongst the petitioner, Suprit, Irfan and
Vishal, which openly speaks of the deal that was struck. However, what has been sent
to the FSL and as can be seen from the report of the FSL dated 07.08.2017, while
referring to parcel Nos. 19 and 20, it is mentioned that one sealed envelope
contained one cellphone, namely Motorola Nexus 6, which is marked as Exhibit-20 in
the Division, whereas, cellphone, Exhibit-20, contained one SIM card bearing No.
89913109003949327607, which was marked as Exhibit-20-S in the Division. It is,
further, stated that as per the forwarding note, Parcel Nos. 19 & 20 contained one
cellphone and one SIM Card of Vodafone SIM No. 8009 3187 368 EH2, but, no such
SIM Card was present either in Parcel No. 19 or 20.
6.18. It is, therefore, fervently contended by the learned Advocate, Mr. Popat, that
there is reference of one cell phone and one SIM card, bearing Vodafone SIM No. No.
8009 3187 368 EH2, which is surprisingly not found present in the parcel. It is also
contended that the entire procedure was not carried out in accordance with law and
no # value (hash value) of electronic items seized was recorded. It is also pointed
out that the report of the FSL is contrary to points 38 and 39, which speaks of no

retrieval of data and E-mail from cellphone, Exhibit-20.
6.19. Apt would be to reproduce the Final Report of FSL qua items at Sr. Nos. (38)
and (39), which read thus:
"Contacts, SMS, Call Log, Calender, Images, Audio Files and Video Fileswere
retrieved from the Cellphone Exh.-20. However, Chats and Emails could not
be retrieved.
(39) Contacts were retrieved from SIM Card Exh.-20-S.
• Files mentioned in the Sr. No. 38 & 39 are copied on two separate sterile
DVD-R (from lab. Stock) and attached herewith Annexure-20."
6.20. Although, the IO, who was present was specifically questioned on this aspect,
from the record he does not appear to have recorded '#' Value at the of seizure of
those articles. However, this aspect can be raised by the petitioner, at the time of
trial and the same may be regarded aptly by the Court concerned, bearing in mind the
settled position of law. This, itself, at this stage, would not be potent enough to this
Court to grant liberty to the petitioner.
7. With the discussion as above, this petition does not deserve to be entertained and
the same is DISMISSED. However, considering the young age of the petitioner, he
shall be permitted to approach this Court once again after a period of expiry of six
months, if, the trial does not proceed substantially. The observations made by this
Court shall not come in the way of the petitioner, at the time of trial.
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MANU/GJ/1748/2018

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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