Law Maker

Kanhaiyalal v. Union of India

Supreme Court of India · 9 January 2008 · 2 judges

Overruled in whole or in part by Tofan Singh v. State of Tamil Nadu (2020), which says: “The judgment in Kanhaiyalal (supra) then goes on to follow Raj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us.”

An officer acting under Section 67 read with Section 42 of the NDPS Act is not a police officer, so a voluntary statement made to him can be used as a confession against its maker and alone sustain a conviction.

Facts

Acting on information, officers of the Central Bureau of Narcotics found Phool Chand at a well with bags containing opium; another man fled. Phool Chand named the appellant as the man who fled and as a co-owner of the bags. The appellant, after summons under Section 67 of the NDPS Act, made a statement admitting his involvement and was then arrested. The Special Judge convicted Phool Chand but acquitted the appellant and Ram Prasad, finding no evidence apart from their contradictory confessions. On the Union's appeal, the Madhya Pradesh High Court held that their Section 67 statements needed no corroboration and convicted them. The appellant argued that, as he was already under arrest when it was recorded, the statement was hit by Sections 24 to 27 of the Evidence Act, and that he had retracted it before the Magistrate the next day.

Questions before the Court

  1. To what extent can a statement made under Section 67 of the NDPS Act be relied upon to convict its maker?
  2. Does such a statement attract the bar of Sections 24 to 27 of the Evidence Act and Article 20(3) of the Constitution?

What the Court held

  • A statement made during an inquiry before the person is arrested or made an accused does not attract Sections 24 to 27 of the Evidence Act or Article 20(3); the bar applies only once the person is placed in the position of an accused.
  • Following Raj Kumar Karwal, an officer with the powers of an officer in charge of a police station under Section 53 of the NDPS Act is not a 'police officer' under Section 25 of the Evidence Act. A Section 67 statement, unless made under threat or coercion, can therefore be used as a confession against its maker.
  • Nothing on record showed that the appellant was compelled to make the statement. PW 9, before whom it was made, was not cross-examined on it, and his evidence was accepted as corroboration.
  • The retraction application was neither decided nor proved at trial, so it did not reduce the value of the statement. A conviction can be maintained solely on a Section 67 confession; the appeal was dismissed.

Why it matters

The judgment holds that a statement recorded under Section 67 of the NDPS Act by an officer empowered under Section 42 is admissible as a confession and can by itself support a conviction, because such an officer is not a police officer under Section 25 of the Evidence Act. It also states when Article 20(3) and Sections 24 to 27 of the Evidence Act come into play in inquiries under special Acts such as the NDPS Act and the Customs Act.

In the Court's words

Copied from the official judgment; each passage links to its page.

“What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play.”
Altamas Kabir, J.Page 10 of the judgment
“Since it has been held by this Court that an officer for the purposes of Section 67 of the NDPS Act read with Section 42 thereof, is not a police officer, the bar under Sections 24 and 27 of the Evidence Act cannot be attracted and the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person. Since a conviction can be maintained solely on the basis of a confession made under Section 67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant.”
Altamas Kabir, J.Page 11 of the judgment
“There is nothing on record to suggest that the appellant was compelled under threat to make the statement after he had been placed under arrest which renders such statement inadmissible and not capable of being relied upon in order to convict him. On the other hand, there is the evidence of PW9 upon which the High Court has relied in convicting the appellant.”
Altamas Kabir, J.Page 11 of the judgment

Provisions interpreted

Related judgments

Case and bench

Parties
Kanhaiyalal v. Union of India
Case
Criminal Appeal No. 788 of 2005
Decided
9 January 2008
Bench
Altamas Kabir, B. Sudershan Reddy
Opinions
Unanimous. Judgment delivered by Altamas Kabir, J.