Supreme Court says right to privacy will apply to accused charged under NDPS

NEW DELHI: The Supreme Court on Thursday said that the provisions of the stringent Narcotics and Psychotropic Substances Act (NDPS) cannot override the right to privacy of an accused and his right not to self-incriminate, and ruled that any statements made to any central or state government officer under the law cannot be used in court as a confession.
A two-judge bench led by Justice R.F. Nariman clarified this today at a time when many leading actors and actresses of Bollywood are under investigation for either possession or use of drugs.

The clarification will not apply to cases already filed under the law but will apply to all new cases as criminal laws are rarely changed with retrospective effect.

The NDPS Act allows the central and state governments to invest their own officers from the central excise, narcotics, customs, revenue intelligence or paramilitary or armed forces with powers of an officer in charge of a police station for investigating offences under the Act.

It also allows these officers, in course of an enquiry, to call for information from any person for the purpose of satisfying himself whether there has been any contravention of the Act, require any person to produce or deliver any document or thing useful or relevant to the enquiry, or examine any person acquainted with the facts and circumstances of the case.

Such officers were “police officers” under the Act and hence statements made before them would not be admissible in court as confession. Though these could be used with corroborating evidence to prove the truth. The other judge on the bench was Justice Navin Sinha.

The court ruled that a conclusion that a confessional statement before such a designated officer can be the basis of a conviction under the Act without an explicit clause overruling the Evidence Act and without any safeguards would be a direct infringement of the constitutional guarantees contained in Article 14 and 20(3) and 21 of the Constitution.

These rights guarantee the right to a free and fair trial to an accused under the existing laws, the right against self-incrimination and the right to life and liberty. They also guarantee the right to dignity and reputation to an accused.

The court observed that a special law such as the NDPS shifts the onus of proving innocence under the Act to the accused himself. The accused has to prove that not guilty of an offence under the Act. In this case, prove that he was not in possession or not using a drug. That reinforces the need for special safeguards in the law to protect them against self-incrimination.