“LAW OF EVIDENCE – INTERNAL II”

III Year B.B.A. LL.B (2020-25) – Semester-V (2022)

“LAW OF EVIDENCE”
Internal Assessment – II

“ANALYTICAL RESEARCH BASED PROBLEM”

NAME: AVANI SASINDRAN

DIVISION: B
PRN: 20010126105
BATCH: 2020-2025

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TABLE OF CONTENTS

INTRODUCTION...............................................................................................................................3

“DOES THE STATEMENT IN THE PRESENT CASE QUALIFY AS A CONFESSIONAL STATEMENT?”

.........................................................................................................................................................3

“CAN THE ACCUSED BE DISALLOWED TRIAL AND TAKEN STRAIGHT TO JAIL?”........................7

CONCLUSION AND RECOMMENDATIONS.......................................................................................7

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INTRODUCTION

The present scenario shall be analyzed by firstly applying the provisions of the aforementioned
Act, and then analyzing the Indian judiciary’s perspectives and decisions in such cases, and the
author shall argue that the accused cannot be disallowed a trial and taken straight to jail,
merely on the basis of a confessional statement under S. 108 of the Customs Act.

SUMMARY OF FACTS IN GIVEN SCENARIO

A few people were charged with illegally trading in gold biscuits. The DRI conducted a raid and
search of the location where these people were found in response to information they had
received, recovering 24 marked gold biscuits as well as significant amounts of both foreign and
Indian currencies. These people were delivered to the DRI office. As per S. 108 of the Customs
Act, summons were sent to them, and their statements were recorded. A complaint was made
against them when the investigation was finished. However, the concerned individuals later
testified before the trial court that they were underprivileged villagers who had travelled to
Mumbai in search of employment.

QUESTION: “Is the statement made/recorded a confessional statement, can an accused

making a statement under Section 108 of the Customs Act 1962 be disallowed a trial and sent
straight to jail?”

“DOES THE STATEMENT IN THE PRESENT CASE QUALIFY AS A CONFESSIONAL STATEMENT?”

CONFESSIONS UNDER THE EVIDENCE ACT

Under the Act, confessions are dealt with under S. 24 to 30. In the present case, it is pertinent to
look at S. 25 and 26, as they deal with confessions made to police officers.

SECTION 25: “Confession to police-officer not to be proved. –– No confession made to a

police-officer, shall be proved as against a person accused of any offence.”

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SECTION 26: “Confession by accused while in custody of police not to be proved against
him. –– No confession made by any person whilst he is in the custody of a police-officer,
unless it be made in the immediate presence of a Magistrate, shall be proved as against such
person.”

Thus, the preliminary consideration is whether the DRI officers in the present case can be
classified under the ambit of “police officers” under the aforementioned sections.

The next factor that has to be considered is whether “retracted confessions”, i.e.
confessional statements that are retracted by the accused persons at a later stage, are
admissible in court, and whether they hold any “evidentiary value”.

ARE DRI OFFICERS, “POLICE OFFICERS”?

CHANGING POSITIONS IN THE LAW

It has been held in several cases that DRI officers are not to be considered police officers, and
therefore confessions made to such officers are not hit by S.25 of the Evidence Act, as has been
held by the apex court in Kanhiya Laal v. UoI1 which had in turn followed the earlier position in
the law as was pronounced by the court in Raaj Kumar v. UoI2 that officers of the Department of
Customs could not be termed as “police officers”.
However, in the case of Noor Aaga,3 the apex court changed its stance, and held that DRI
officers could be termed as “police officers” as they were “carrying out police functions”, and
even referred to the Oxford Dictionary of the word “police”, as well as several other articles to
arrive to their conclusion. This rationale was then followed by the court in 2011 in the case of
Nirmala Pehlvaan v. Inspector,4 wherein the court stated that the matter had been dealt with
conclusively in the aforementioned Noor case, and upheld the decision.

RECENT DEVELOPMENTS

1
Kanahiya Lal v. Union of India, 2008 (4) SCC 668.
2
Raj Kumar v. Union of India, 1990(2) SCC 409.
3
Noor Aga v. State of Punjab, 2008 (16) SCC 417.
4
Nirmala Pehlvaan v. Inspector, (2011)12 SCC 298.

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In the 2020 case of Union of India v. Kisaan Ratan Singh,5 wherein the facts were analogous
to the present scenario at hand, the Bombay HC relied on the apex court decision given in
Ramesh Chandra,6 and took the stance that customs officers were not police officers, and
instead focused more on whether statements made under S. 108 of the Customs Act could be
prima facie admissible, even in the absence of corroboration, which will be dealt with later in
this submission.

WHEN CAN CONFESSIONS TO THE POLICE BE ADMISSIBLE?

The purpose of S. 164 of the CrPC is to offer a procedure for obtaining a trustworthy record of
statements or confessions made during the course of the police investigation, which could be
utilised, if necessary, during the investigation or trial. When an accused person confesses during
the police investigation, the police frequently have it recorded by a magistrate under S. 164. This
allows them to use the confession to the extent that it may be admissible under the Evidence Act
even though it is inadmissible under S. 25 of the Evidence Act.
However, in cases of retracted confessions, there is an increased emphasis on verification of
the veracity of the confession, as well as corroboration with other evidence admitted to the
court.

EVIDENTIARY VALUE OF RETRACTED CONFESSIONS

In the present case, the confessions recorded before the DRI officers were later retracted at the
trial court stage. Therefore, it is imperative to look into the admissibility, and value of such
confessions.7
The court has a responsibility to assess the evidence pertaining to a retracted confession by
considering all relevant factors. To determine whether the confession was voluntary or not is the
first test the court must use in this case.8 The confession must pass this standard in its entirety in
order to be admissible as evidence. When a confession is referred to as “voluntary,” it means
that it was not prompted by coercion, threat, or reward by the officers. It would become

5
Union of India v. Kisan Ratan Singh, 2020 SCC OnLine Bom 39.
6
Ramesh Chandra v. State of WB, 1970 AIR 940.
7
Haroon Hazi Abdullah v. State of Maharashtra, 1968 AIR 832.
8
Shankara v. State of Rajasthan, AIR 1978 SC 1248.

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irrelevant if it seemed to the court that a confession had been obtained through the use of any
enticement.

“INTERPLAY OF S. 108, CUSTOMS ACT AND EVIDENCE ACT”

SECTION 108: “Power to summon persons to give evidence and produce documents.

(1) Any gazetted officer of customs duly empowered by the Central Government in this behalf,
shall have power to summon any person whose attendance he considers necessary either to
give evidence or to produce a document or any other thing in any inquiry which such officer is
making under this Act.]…

..(3) All persons so summoned shall be bound to attend either in person or by an authorised
agent as such officer may direct; and all persons so summoned shall be bound to state the
truth upon any subject, respecting which they are examined or make statements and produce
such documents...”

While S. 108 empowers DRI officers to issue summons and record statements of the persons
being interrogated or the accused persons, it is essential to corroborate the statements
recorded by the officers, especially in the case of retracted confessions.
In the aforementioned Bombay HC case,9 the court stated that merely taking the statements
recorded by the officers in the absence of corroboration as “gospel truth” would be unjust, and
would hinder the delivery of justice to the accused persons, especially in the face of the fact that
the confessional statements recorded were later retracted by the accused.
While retracted confessions are not barred by law in terms of admissibility, as was held in the
case of Raam Prakaash,10 the “credibility” of such confessions shall vary on case-to-case, based
on the facts and circumstances of every case.
Following the rationale given by Bombay HC, the author shall conclude that merely concluding
that the statements made by the accused before the officers are completely true, in the absence of
corroboration, would be unjust, and contravene the principles of natural justice.

9
UOI v. Kisaan Singh, 2020 SCC OnLine Bom 39.
10
Ram Prakash v. State of Punjab, 1959 AIR 1.

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“CAN THE ACCUSED BE DISALLOWED TRIAL AND TAKEN STRAIGHT TO JAIL?”

The accused persons cannot be denied the right to a fair trial and be directly detained, as doing so
would violate their fundamental right to be heard, “audi alteram partem”, and would violate
their rights under Art. 21.11

CONCLUSION AND RECOMMENDATIONS

RECOMMENDATIONS

The author’s primary recommendation to the judiciary and the legislature would be to resolve the
legal ambiguity with respect to the issue of whether DRI officers can be classified as “police
offices”, as it would resolve the ambiguity created by the various positions in law taken by the
various High Courts, as well as the apex court itself on several occasions.

Furthermore, it is imperative that the Law Commission issue guidelines with respect to the
admissibility of statements in courts to various departments and their officers, and strict action
should be taken against officers who indulge in malpractices to force individuals to give
confessional statements.

CONCLUSION

With respect to the given scenario, the author shall conclude that the accused cannot be
disallowed a trial merely on the basis of statements given to the DRI officers, as doing so would
contravene the very fundamental principles of natural justice that out legal framework is based
on. With regards to the legal issue of whether DRI officers can be classified as “police officers”
for the purposes of the Evidence Act, there exists legal ambiguity in respect to the same, which
must be ideally resolved by the judiciary, or by the legislature, as doing so would provide some
legal finality to this pertinent issue.

11
Art. 21, Constitution of India.

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