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A Critical Analysis of Admissibility of Confessional Statements under various Criminal Laws in India

Confession:

What is a Confession
The Law relating to Confession is to be found from Section 162 to 164 of the Criminal Procedure Code, 1974 and Sections 24 to 30 of the Indian Evidence Act, 1872. The term "Confession" appears in Sec 24 of Part I of Chapter II of the Indian Evidence Act. Sec 24 comes under the heading of "Admission" thereby making it clear that the term "Admission" is the Genus and "Confession" is a species of Admission. Therefore, every Confession is an Admission but every Admission cannot be termed as Confession. However, the term "Confession" is not defined anywhere either in the CrPC or the Evidence Act.

According to Black's Law Dictionary, Confession is defined as "A voluntary statement made by a person charged with the commission of a crime or misdemeanour, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act or the share and participation which he had in it."

A Confession is a statement made by an Accused which must either admit in terms, the offence or substantially all the facts contributing to the offence.[1]

In Pakala Narayan Swami V. Emperor[2], Lord Atkin observed "A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession".

In the case of NISHI KANT JHA V. STATE OF BIHAR[3], the Supreme Court pointed out that, "there was nothing wrong or relying on a part of the confessional statement and rejecting the rest, and for this purpose, the Court drew support from various English authorities. When there is enough evidence

to reject the exculpatory part of the accused person's statements, the Court may rely on the inculpatory part."

Thus, Confession is a statement made by an accused person which is sought to be proved against him in a criminal proceeding to establish the commission of an offence by him. Confession if deliberately and voluntarily made may be accepted and relied upon by the court and conviction can be founded thereon. Furthermore, when two or more persons are tried together for the same offence, a confession given by one of the accused can be taken into consideration against the other co-accused.
Who can record Confessions?
Section 164 of the CrPC gives power to the Metropolitan Magistrate or Judicial Magistrate to record confession and statements during the course of investigation under chapter XII or under any law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial. The magistrate may record confession or statement made to him. But before doing so he is enjoined by sub section (2) thereto to explain to the person making it that he is not bound to make confession and that, if he does so it may be used as evidence against him.

In the case of Kartar Singh V. State Of Punjab[4], it was observed that, "what section 164(2) of the code requires as amplified by Rule 32 of Criminal Rules of Practice, is that as soon as the accused intending to make confession is produced and before he is told he would be allowed time for reflection, the magistrate should explain him that it is not intended to make him an approver and that, he is not bound to make confession and warn him that, if he does so, anything said by him will be taken down and thereafter be used as evidence against him as evidence in relation to his complicity in the offence at the trial, that is to follow. Compliance of sub-section (2) being mandatory and imperative, its non-compliance renders the confession inadmissible in evidence."

Types of Confession:

Judicial:
Judicial Confessions are those confessions which are made before a Judicial Magistrate or in Court in the due course of legal proceedings. A confession when made voluntarily can be relied upon by the court. As per Sec 164 of CrPC, power has been conferred upon a Metropolitan Magistrate or a Judicial Magistrate to record any confession or statement made to him, whether or not he has a jurisdiction in the case.

Sec 80 of the Evidence Act attaches evidentiary value to the confessional statements recorded by a Judge or a Magistrate and provides that the Court shall presume that such statements are genuine and true.

A confessional statement if made deliberately and voluntarily, can be accepted and relied upon by the court and conviction can be founded thereon. However, as a caution and in the interest of justice, the Supreme Court in numerous cases have held that, Judicial Confession alone cannot be the sole basis for the conviction of an Accused and it needs to be corroborated by other evidences.

In SARWAN SINGH v. STATE OF PUNJAB[5] reiterating the same principle, the Court observed in Para 10 that, "usually Courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case.

The Court further went on discussing the duty of a Magistrate whilst recording a statement u/s 164 of CrPC. It held that, the act of recording confessions u/s 164 of CrPC is a very solemn act and in discharging his duties under the said section, the Magistrate must take care to see that the requirements of sub-s. (2) and (3) of S. 164 are fully satisfied. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary.

The whole object of putting questions to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement threat or promise having reference to the charge against the accused person as mentioned in Sec 24 of Evidence Act. Furthermore, the Court held that time of at least 24 hours should be allowed to the accused person to decide whether or not he should make a confession, before recording his statement u/s 164 of CrPC. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded."
Extra - Judicial:
Extra-Judicial Confessions are those confessions which are made by the person elsewhere than before a Magistrate or Court. Extra-Judicial Confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity, police officers, etc. Extra-Judicial Confession may be in writing or oral.

Extra-Judicial Confessions is a very weak type of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept Extra-Judicial Confessions, it must be voluntary and must inspire confidence. If the court is satisfied that the Extra-Judicial Confession is voluntary and true and made in a fit state of mind, it can be acted upon to base the conviction. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession.

In the case of Ramanand V. State Of Uttar Pradesh[6] it was held that, "an Extra-Judicial Confession, if voluntary, truthful, and reliable is an efficacious piece of evidence to establish the guilt of the accused. However, an Extra-Judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an Extra-Judicial Confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. In order to accept Extra-Judicial Confessions, it must be voluntary and must inspire confidence. If the court is satisfied that the Extra-Judicial Confession is voluntary and true and made in a fit state of mind, it can be acted upon to base the conviction."

In Balwinder Singh V. State Of Punjab[7] it was held that, "An Extra-Judicial Confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an Extra-Judicial Confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The court usually look for independent and reliable corroboration before placing any reliance upon an extra judicial confession."

Again, In Nikhil Chandra Mondal V. State Of West Bengal[8], the Supreme Court reiterating the same principle held that, "It is a settled principle of law that extra-judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that it is well-settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It has been held that there is no doubt that conviction can be based on extra-judicial confession, but in the very nature of things, it is a weak piece of evidence."

In Sahadevan And Anr V. State Of Tamil Nadu[9] taking into account numerous case laws the Court laid down the following principles on Extra-Judicial Confessions as an admissible piece of evidence capable of forming the basis of conviction of an accused:
1. The extra-judicial confession is weak evidence by itself. It has to be examined by the court with greater care and caution.
2. It should be made voluntarily and should be truthful.
3. It should inspire confidence.
4. An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
5. For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
6. Such a statement essentially has to be proved like any other fact and in accordance with the law.
Retracted:
Retracted Confession is a statement made by an accused person before the trial begins by which he admits to have committed the offence but which he repudiates at the trial. When an accused who has made a confession says that he did not make a confession, it amounts to retraction of the confession already made.

A retracted Confession without independent corroboration cannot sustain conviction.[10] It is unsafe to base conviction on a retracted confession unless it is corroborated by trustworthy evidence. There is no definite law that a retracted confession cannot be the basis of the conviction but it has been laid down as a rule of practice and prudence to not rely on retracted confession unless corroborated.

In the case of K. I. Pavunny V. Asstt. Collector[11] it was held that:
When the court is satisfied that a retracted confession is true and voluntary, the same may be the basis for conviction.
Inculpatory:
Inculpatory Confessions are those Confessions where the accused directly admits his guilt.
Exculpatory:
Exculpatory Confessions are those confessions which absolves the accused from his liability.

Evidentiary Value of Confessional Statements under the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872:

Evidentiary Value of Sec 164 Statements:
Evidentiary value of statement recorded under section 164 CrPC, is that, the statement cannot be treated as substantive evidence when the maker does not depose of such facts on oath during trial. Before acting on a confession made before a Judicial Magistrate in terms of section 164, the court must be satisfied first that the procedural requirements laid down in sub section (2) to (4) are complied with. These are salutary safeguards to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such confession. The endeavour of court should be to apply its mind to the question as to whether the accused was free from threat, duress or inducement at the time of making confession.

The confession would not be ordinarily considered the basis for conviction. However, it is admissible, and conviction may also be based upon it, if it is found truthful and voluntary and in a given case some corroboration is necessary. Confession which is not retracted even at the stage of trial and even accepted by the accused in the statement under section 313 Cr.P.C. can be fully relied upon. So, the conviction based thereon together with other circumstantial evidence is sustainable.

In Bisipati Padhan V. State[12] And In Ram Kishan V. Harmit[13], it was held that, "A statement of a witness u/s 164 of the Code is not substantive evidence, but it is only a former statement made before an authority legally competent to investigate the fact. Such a statement can be used either for corroboration of the testimony of a witness u/s 157 of the Evidence Act or for contradiction thereof u/s 145 of the Evidence Act.
Whether Confession made to Police Officer is Admissible?
Section 24 of the Evidence Act enacts the general rule of inadmissibility of involuntary confessions, recognized all over the world and guarantee under Article 20(3) of the Constitution of India. A confession made under circumstances which would make it appear to the Court that such confession was caused by any inducement, threat or promise from a person in authority is irrelevant in a criminal proceeding.

It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-s. (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of Sec 27 of the Evidence Act.

The words of Sec 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Sec 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by Sec 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under Sec 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by Sec 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by Sec 26, unless it is made in the immediate presence of a Magistrate.

These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy and the fullest effect should be given to them.

Offering such inducement, threat or promise by police officers is also prohibited under Sec 163 of CrPC. Section 25 and 26 of the Evidence Act go far beyond the constitutional protection and debar confession made by an accused person to a police officer or whilst in police custody to anyone except in the immediate presence of a Magistrate from being given in evidence.

There is a total ban to Confessions made to a police officer. As per Sec 25 of the Evidence Act, "No confession made to a police officer, shall be proved as agaisnt a person accused of any offence." It also covers a confession made by a person when he was free and not in police custody as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession.

The object of Sec 25 is to ensure that the person accused of offence would not be induced by threat, coercion or force to make a confessional statement and the officer also would make every effort to collect the evidence of the commission of the crime de hors the confession to be extracted from the accused while they are in custody of the police officers.[14]

Any confessional statement given by accused before police is inadmissible in evidence and cannot be brought on record by the prosecution and is insufficient to convict the accused.[15]

If the First Information Report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by section 25. If confessions to police were allowed to be proved in evidence, the police would torture the accused and thus force him to confess to a crime which he might not have committed. A confession so obtained would naturally be unreliable. Such a confession will be irrelevant whatever may be its form, direct, express, implied or inferred from conduct.

In Dagdu V. State Of Maharashtra[16], the Hon'ble Supreme court has observed that "The archaic attempt to secure confessions by hook or by crook seems to be the be-all and end-all of the police investigation. The police should remember that confession may not always be a short-cut to solution. Instead of trying to "start" from a confession they should strive to "arrive" at it. Else, when they are busy on their short-route to success, good evidence may disappear due to inattention to real clues. Once a confession is obtained, there is often flagging of zeal for a full and through investigation with a view to establish the case de hors the confession, later, being inadmissible for one reason or other, the case fumbles in the court."
Whether Confession made to Police Patil is admissible?
In Vishwas Patil V. The State Of Maharashtra[17], Division Bench of the Bombay High Court has observed that, "a Police Patil appointed under the Maharashtra Village Police Act, 1967 is not a "Police Officer" for the purpose of Section 25 of the Evidence Act. The Police Patil under the village act is also not a police officer on the deeming fiction of law as there is no provision in the statute which specifically or even otherwise requires the Police Patil to be treated as a Police Patil for all intent and purpose and therefore confession made before a Police Patil would not attract Sec 25 of the Evidence Act."
When Confession made to Police Officer is Admissible:
Sec 27 of the Evidence Act is in the form of a proviso and it partially lifts the ban imposed by Sec 24, 25 and 26 of the Evidence Act. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-s. (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act.

The words of S. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Sec 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section.

Thus, except as provided by Sec 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under Sec 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by S. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate.
Sec 27 of Evidence Act vis-a-vis Art 20(3) of the Constitution of India
Art 20(3) of the Constitution of India provides that, "No person accused of any offence shall be compelled to be a witness against himself".

It is the responsibility of the prosecution to prove the guilt of the accused by bringing all the necessary evidence. However, it cannot shirk its responsibility and force or compel the accused to be a witness against himself as such a compulsion against the accused violates Art 20(3) of the Constitution of India.

The constitutionality of Sec 27 of the Evidence Act was challenged in various cases on the ground that it violates Art 20(3) of the Constitution but ultimately the controversy was resolved in the case of State of Bombay v. Kathi Kalu Oghad.

In State Of Bombay V. Kathi Kalu Oghad[18] it was held that, "An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.

The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by S. 27 of the Evidence Act. If the self-incriminatory information has been given by an accused person without any threat, that will not be hit by the provisions of cl. (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. Thus, the provisions of S. 27 of the Evidence Act are not without the prohibition aforesaid, unless compulsion had been used in obtaining the information."

Recently, in Ashish Jain V. Makrand Singh And Ors[19] the Supreme Court has held that, "if the confession of an accused that led to the recovery of the incriminating material was not voluntary, but caused by inducement, pressure or coercion such a confessional statement of the accused would be hit by Article 20(3) of the Constitution, rendering such a confession inadmissible. There is an embargo on accepting self-incriminatory evidence, but if it leads to the recovery of material objects in relation to a crime, it is most often taken to hold evidentiary value as per the circumstances of each case. However, if such a statement is made under undue pressure and compulsion from the investigating officer, the evidentiary value of such a statement leading to the recovery is nullified.

Doctrine of Confirmation by Subsequent Events:

The basic idea embedded in Sec 27 of the Evidence Act is the doctrine of Confirmation by Subsequent Events. The doctrine is founded on the principle that if any fact is discovered on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true.

The theory of Confirmation by subsequent facts means that the statements made in custody are admissible to the extent that they can be proved by subsequent discovery of facts.

Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which leads to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him.

This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.

In PULUKURI KOTTAYA v. EMPEROR[20] while discussing the scope and ambit of Sec 27 and the expression "Fact discovered", the Court observed as follows, "10. ....It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago.

It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

In RAJESH v. STATE OF MP[21] it was held that, "Section 26 of the Indian Evidence Act, 1872, provides that no confession made by any person whilst he is in the custody of a police officer shall be proved against such person, unless it is made in the immediate presence of a Magistrate. Section 27, thereafter, is in the nature of an exception to Section 26 of the Evidence Act. It states that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

Therefore, it is essential under Section 27 of the Evidence Act that the person concerned must be 'accused of an offence' and being in the 'custody of a police officer', he or she must give information leading to the discovery of a fact and so much of that information, whether it amounts to a confession or not, that relates distinctly to the fact discovered, may be proved against him.

In effect, both aspects, viz, being in 'the custody of a police officer' and being 'accused of an offence', are indispensable prerequisites to render a confession made to the police admissible to a limited extent, by bringing into play the exception postulated under Section 27 of the Evidence Act. Information which is otherwise admissible under Section 27 of the Evidence Act would become inadmissible, if it did not come from a person in the 'custody of a police officer' or came from a person 'not in the custody of a police officer'. It was further held that what is admissible is the information and not the opinion formed on it by the police officer and, in other words, the exact information given by the accused while in 'custody' which led to recovery of the articles has to be proved. The two essential requirements, as per this Court, are that:

The person giving the information must be 'accused of an offence'; and
He must be in 'police custody'.

In PANDU RANG KALLU PATIL v. STATE OF MAHARASHTRA, it was held by the Supreme Court that, "section 27 of evidence act was enacted as proviso to Sec 24 to 26 of Evidence Act. The provisions of sections of Section 25 and 26, which imposed a complete ban on admissibility of any confession made by accused either to police or at any one while in police custody. Nonetheless, the ban would be lifted if the statement is distinctly related to discovery of facts. The object of making provision in section 27 was to permit a certain portion of statement made by an accused to Police officer admissible in evidence."

Admissibility of Confessional Statements under various Criminal Laws in India:

Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS)
The Narcotic Drugs and Psychotropic Substances Act of 1985 was enacted for the purpose to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith and extends to the whole of India.

Sec 53 of the NDPS Act provides power to invest officers of certain departments such as Central Excise, Narcotics, Customs, Revenue Intelligence with powers of an officer-in-charge of a police station for the investigation of the offences under the Act.

Sec 67 of the NDPS Act provides power to call for information to any officer referred to in Sec 42 of the Act to call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the act or any rule or order made thereunder; require any person to produce or deliver any document or thing useful or relevant to the enquiry and examine any person acquainted with the facts and circumstances of the case.

In TOFAN SINGH v. STATE OF TAMIL NADU[22], two issues arose before the Supreme Court for consideration namely:
1. Whether an officer "empowered under Section 42 of the NDPS Act" and/or "the officer empowered under Section 53 of the NDPS Act" are "Police Officers" and therefore statements recorded by such officers would be hit by Section 25 of the Evidence Act; and
2. What is the extent, nature, purpose and scope of the power conferred under Section 67 of the NDPS Act available to and exercisable by an officer under section 42 thereof, and whether power under Section 67 is a power to record confession capable of being used as substantive evidence to convict an accused?
The Supreme Court answering both these issues held that officers invested with powers u/s 53 NDPS Act comes within the meaning of Sec 25 of Evidence Act and therefore any confessional statement made to them would be barred u/s 25 of Evidence Act and cannot be taken into account in order to convict the accused under the NDPS Act. Hence, statement recorded u/s 67 of NDPS Act cannot be used as confessional statement in trial of offence under the Act.

The Court further held that, statements made before the officer under Sec 53, even when "relevant" under Sec 53A, cannot, without corroborating evidence, be the basis for the conviction of an accused. Thus, to arrive at the conclusion

that a confessional statement made before an officer designated under Sec 42 or Sec 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with Sec 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India."

In AEJAZ ISMAIL SAYED v. UNION OF INDIA[23] reiterating the principles laid down in Tofan Sing's Case, the Court observed that, "officers of the NCB are police officer within the meaning of section 25 of the Evidence Act and as such, any statement recorded under section 67 of the Act by the empowered officer cannot be used as an evidence and relied upon by the prosecution. Once the material relied upon by the prosecution cannot be translated into evidence, then no charge can be framed against the accused" and thus the Court discharged the accused from the criminal proceedings.

Whether Excise Officers are Police Officers?
The Apex Court in RAJARAM JAISWAL v. STATE OF BIHAR[24] held that, "an Excise Officer was a Police Officer within the meaning of Sec 25 of the Evidence Act because an Excise Officer has the power of Investigation into an offence and he also has the power to file a chargesheet u/s 173 CrPC. So in view of these powers conferred upon an Excise Officer, he was considered to be a Police Officer within the meaning of Sec 25 of Evidence Act. Therefore, any statement made before an Excise Officer would invite the ban imposed u/s 25 of the Evidence Act."

Whether Officers of the Department of Revenue Intelligence (DRI) are Police Officers?
The most important attribute of police power is not only the power to investigate into the commission of cognizable offences but also the power to prosecute the offender by filing a chargesheet u/s 173 of CrPC. Unless an officer is invested under any special law with the powers of an investigation under the code including the power to submit a report u/s 173 of CrPC, he cannot be described to be a Police Officer u/s 25 of the Evidence Act.

In RAJ KUMAR KARWAL v. UNION OF INDIA[25] it was observed that, "officers of the Department of Revenue Intelligence (DRI) though invested with the powers of an Officer-in-Charge of a police station u/s 53 of NDPS Act but they are not entitled to exercise all the powers under Chapter XII of CrPC including the power to submit a report or chargesheet u/s 173 CrPC. Therefore, officers of the Department of Revenue Intelligence (DRI) cannot be held to be a Police Officer within the meaning of Sec 25 of Evidence Act and thus a confessional statement recorded before them would not be hit by the bar of Sec 25 of Evidence Act and would be admissible in evidence as against the maker of the statement.
Maharashtra Control of Organized Crime Act, 1999 (MCOCA)
The Maharashtra Control of Organized Crime Act of 1999 was enacted for the purpose to make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang, and for matters connected therewith or incidental thereto and extends to the whole of State of Maharashtra.

Sec 18 of the Act deals with the evidentiary value of the confessions of the accused recorded before police officers. It reads as follows,

Section 18 - Certain confessions made to Police Officers to be taken into consideration -

Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this Section, a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator:

Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together with the accused.

The Non-obstante Clause in Sec 18(1) of the Act overrides the ban imposed by Sec 25 of the Evidence Act and thus makes a confession made by an accused person before a Police Officer, not below the rank of Superintendent of Police, admissibile in the trial of such person.

The Section also provides certain safeguards such as the confession shall be recorded in a free atmosphere and in the same language in which the person is examined and as narrated by him and the police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording

such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same.

Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Special Court which may take cognizance of the offence.

The person from whom a confession has been recorded under sub-section (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under sub-section (4) alongwith the original statement of confession, written or recorded on mechanical device without unreasonable delay.

The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon.

In BHIKUBHAI DAYARAM THANKI v. STATE OF MAHARASHTRA[26] Division Bench of the Bombay High Court whilst relying upon State of Tamil Nadu v. Nalini (wherein the Supreme Court was considering the evidentiary value of confessions recorded u/s 15 of Terrorist and Disruptive Act) held that, "confessions recorded u/s 18 of MCOCA, which is similar to Sec 15 of TADA, are still admissible even when the accused are acquitted of the offence. Confession of an accused recorded u/s 18 of the MCOCA is admissible against co-accused as substantive evidence. Substantive evidence, however, does not necessarily mean substantial evidence. The substantive evidence would not mean that it should be treated automatically as substantial evidence. The quality of the evidence is important. What value is to be attached to a confession would fall within the domain of appreciation of evidence. The Hon'ble Supreme Court has further laid down that as a matter of prudence Court may look for some corroboration if confession is to be used against the co-accused and that would again be within the sphere of appraisal of evidence.
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA):
The Terrorist and Disruptive Activities (Prevention) Act was enacted with special provisions for the prevention of and coping with terrorist and disruptive activities and for matter connected therewith. The Act was originally enacted in the year 1985 under the background of the Punjab Insurgency and to curb the Separatist movement and was applied to the whole of India. The Act also had a Sunset Clause for lapsing after two years post its commencement, however, the Act was renewed in 1987, 1989, 1991 and 1993 before lapsing in the year 1995 due to the alleged misuse of the Act by the authorities. TADA was the First Anti-Terrorism Law legislated by the Government of India to define and counter terrorist activities.

The key features of the Act was that wide powers were given to Police and they were not obliged to produce a detainee before a Judicial Magistrate within 24 hours, confessions made to police were admissible in the court of law and the burden of proof to prove the innocence was upon the Accused, persons can be detained upto 1 year without formal charges being framed, police officers were also empowered to attach the properties of the accused under this Act. However, the Act was later on repealed due to its blatant misuse and utter disregard of the personal liberty of the Individual. The Conviction rates were far less than the Arrests which were made under the Act, persons can be detained upto 1 year without any formal charges or trial against him, torture meted out by police to obtain confessions, etc. The Act was repealed in 1995 and was succeeded by the Prevention of Terrorism Act of 2002.

Sec 15 of the Act deals with the evidentiary value of the confessions of the accused recorded before police officers. Sec 15 of TADA is identical to Sec 18 of MCOCA. It reads as follows:
15. Certain confessions made to police officers to be taken into consideration.:
1. Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or rules made thereunder:
  
  Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.
2. The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily.
The Non-obstante Clause in Sec 15(1) of the Act overrides the ban imposed by Sec 25 of the Evidence Act and thus makes a confession made by an accused person before a Police Officer, not below the rank of Superintendent of Police, admissibile in the trial of such person.

In STATE OF TAMIL NADU v. NALINI[27] the Supreme Court considering the evidentiary value of confessions recorded u/s 15 of Terrorist and Disruptive Act held that, "confessions of the accused made voluntarily and validly u/s 15 of TADA is admissible against the person making it and against the co-accused as a substantive evidence. Substantive evidence, however, does not necessarily means substantial evidence.

The substantive evidence would not mean that it should be treated automatically as substantial evidence. The quality of the evidence is important. What value is to be attached to a confession would fall within the domain of appreciation of evidence. The Hon'ble Supreme Court has further laid down that as a matter of prudence Court may look for some corroboration if confession is to be used against the co-accused and that would again be within the sphere of appraisal of evidence. Furthermore, the confessional statement duly recorded u/s 15 TADA would continue to remain admissible for the other offences under any other law which too were tried along with TADA offences, irrespective of the fact that the Accused was acquitted of offences under TADA in the trial.

TADA was enacted to meet an extraordinary situation existing in the country. Its departure from the law relating to confession as contained in the Evidence Act is deliberate. Law has to respond to the reality of the situation. Confession of the accused is admissible with the same force in its application to the co-accused who is tried in the same case. It is primary evidence and not corroborative.
Prevention of Terrorism Act, 2002 (POTA):
The Prevention of Terrorism Act of 2002 was enacted with the objective of strengthening the anti-terrorism operations in India. The Act was enacted as a response to fight terrorism in India and to have stringent laws due to several terrorist attacks that were being carried out in India especially the Parliament Attack in 2001. The Act repealed the Terrorist and Disruptive Activities (Prevention) Act however came to an end in 2004. The provisions of POTA were similar to TADA Act. POTA provided that a suspect could be detained for upto 180 days without filing of chargesheet, confessions made by the accused to police were admissible in the court of law, attachment of properties of the accused under the Act, wide powers granted to Police Officers for search, seizure and arrest, etc. However, the Act of 2002 received major criticism as the said act was arbitrarily used to target political opponents and the arbitrary arrests made since the enaction of the Act, without any sufficient evidences.

Sec 32 of the Act deals with the evidentiary value of the confessions of the accused recorded before police officers. Sec 32 of POTA is identical to Sec 18 of MCOCA and Sec 15 of TADA.

It reads as follows:
32. Certain confessions made to police officers to be taken into consideration:
1. Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or the rules made thereunder.
2. A police officer shall, before recording any confession made by a person under sub-section (1), explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him:
  
  Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession.
3. The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it.
4. The person from whom a confession has been recorded under sub-section (1), shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate alongwith the original statement of confession, written or recorded on mechanical or electronic device within forty-eight hours.
5. The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb-impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody.
The Non-obstante Clause in Sec 32(1) of the Act overrides the ban imposed by Sec 25 of the Evidence Act and thus makes a confession made by an accused person before a Police Officer, not below the rank of Superintendent of Police, admissibile in the trial of such person.

The Section also provides certain safeguards and procedure, which are mandatory, such as the confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it and where such persons prefers to remain silent, the police officer shall not compel or induce him to make any confession.
Customs Act, 1962:
The Customs Act of 1992 was enacted for the purpose to consolidate and amend the law relating to Customs and extends to the whole of India.

Sec 107 of the Act provides power to officer of Customs to examine persons. Any officer of customs may during the course of any enquiry in connection with the smuggling of any goods
- require any person to produce or deliver any document or thing relevant to the enquiry;
- examine any person acquainted with the facts and circumstances of the case.
108. Power to summon persons to give evidence and produce documents:
1. Any Gazetted Officer of customs 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.
2. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
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 and other things as may be required:
Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860).

In State Of Punjab V. Barkatram[28] the Supreme Court has held that, "a customs officer is not a police officer within the meaning of Section 25 of the Evidence Act. The words "Police Officer" are not to be construed in a narrow way but have to be construed in a wide and popular sense however, not such a wide meaning as to include persons on whom certain police powers are conferred. The customs officer is not primarily concerned with the detection and punishment of crime committed by a person, but is mainly interested in detection and prevention of smuggling goods and safeguarding the recovery of customs duties. He is more concerned with the goods and customs duty than with the offender. The duties of the customs officers vary much different from those of the police officers and their possessing certain powers, which may have similarity with those of police officers for the purpose of detecting the smuggling of goods and the persons responsible for it, would not make them police officers. Merely because similar powers in regard to detection of infractions of customs laws have been conferred on the officers of the customs department as are conferred on officers of the police is not sufficient ground for holding them to be police officers within the meaning of Sec 25 Evidence Act."

In Badku Joti Sawant V. State Of Mysore[29] And In Ramesh Chandra Mehta V. State Of West Bengal[30] the Supreme Court reiterating the same principle has held that, "a custom officer is not a police officer within the meaning of Sec 25 of the Evidence Act and therefore a statement made before a customs officer, by a person who is arrested, is not covered by Sec 25 of the evidence Act and is therefore admissible in evidence. A Customs Officer is not a member of the police force. He is not entrusted with the duty of maintaining law and order. He is entrusted with power which specifically relates to the collection of customs duties and prevention of smuggling. The test for determining whether an officer of customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qua investigation of an offence, including the power to submit a report under Section 173 of the Code of Criminal Procedure. A Customs Officer exercising power to make an enquiry cannot submit a report under Section 173 of the code of Criminal Procedure."

Therefore, a confessional statement recorded before a Customs Officer would not be hit by the bar of Sec 25 of Evidence Act and would be admissible in evidence as against the maker of the statement.
Prevention of Money Laundering Act, 2002 (PMLA):
The Prevention of Money Laundering Act of 2002 was enacted for the purpose to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto and extends to the whole of India.

Sec 50 of the Act provides for powers of authorities regarding summons, production of documents and to give evidence. The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under the Act. All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. Every proceeding under sub-sections (2) and (3) of the act shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).

In Vijay Madanlal Choudhary & Ors V. Union Of India [31] it was held that, "ED officers are not police officers and therefore statement recorded by them cannot be hit by Articles 20(3) & 21 of the Constitution of India and Sec 25 of the Indian Evidence Act.

Art 20(3) would not come into play in respect of process of recording statement pursuant to summons issued u/s 50 of the Act which is only for the purpose of collection of information or evidence in respect of the proceedings under the act. Art 20(3) of the Constitution of India and Sec 25 of the Indian Evidence Act would come into play only when the person so summoned is an accused of any offence at the relevant time and is being compelled to be a witness against himself.

At the stage of issuance of summons u/s 50 of the Act for the purpose of investigation and recording of statement, no formal charge is framed against the accused person and therefore the accused person cannot claim the protection of Art 20(3) of the Constitution or Sec 25 of the Evidence Act. However, if his/her statement is recorded after a formal arrest by ED official, the ban imposed by Art 20(3) of the Constitution and Sec 25 of Evidence Act would come into play to urge that the same being in the nature of confession, shall not be proved against him."

End-Notes:

Om Prakash v. State (AIR 1960 SC 409)
AIR 1939 P.C. 47
1969 Cri.L.J. 671
1994 Cri.L.J. 3139
AIR 1957 SC 637
AIR 2022 SC 5273
AIR 1996 SC 607
Criminal Appeal No. 2269 of 2010
(2012) 6 SCC 403
Palanisamy v. State (AIR 1986 SC 593)
(1997) 3 SCC 721
AIR 1969 Orissa 289
AIR 1972 SC 468
State of Gujarat v. Anirudh Singh (AIR 1997 SC 2780)
Ram Singh v. State of Maharashtra, (1999 Cr LJ 3763 (Bom))
AIR 1977 SC 1579
Criminal Appeal No. 844 of 2018
AIR 1961 SC 1808
2019 Cri.L.J. 1316
AIR 1947 PC 67
AIRONLINE 2023 SC 764
AIR 2020 SC 5592
AIRONLINE 2021 J AND K 484
AIR 1964 SC 828
AIR 1991 SC 45
2018 (3) ABR (cri) 787
1999 Cri.L.J. 3124
AIR 1962 SC 276
AIR 1966 SC 1746
AIR 1970 SC 940
AIRONLINE 2022 SC 1139

https://legalserviceindia.com/legal/admincp/edit_article.php?id=15797 Confession:

What is a Confession -
The Law relating to Confession is to be found from Section 162 to 164 of the Criminal Procedure Code, 1974 and Sections 24 to 30 of the Indian Evidence Act, 1872. The term "Confession" appears in Sec 24 of Part I of Chapter II of the Indian Evidence Act. Sec 24 comes under the heading of "Admission" thereby making it clear that the term "Admission" is the Genus and "Confession" is a species of Admission. Therefore, every Confession is an Admission but every Admission cannot be termed as Confession. However, the term "Confession" is not defined anywhere either in the CrPC or the Evidence Act.

According to Black's Law Dictionary, Confession is defined as "A voluntary statement made by a person charged with the commission of a crime or misdemeanour, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act or the share and participation which he had in it."

A Confession is a statement made by an Accused which must either admit in terms, the offence or substantially all the facts contributing to the offence.[1]

In Pakala Narayan Swami V. Emperor[2], Lord Atkin observed "A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession".

In the case of NISHI KANT JHA V. STATE OF BIHAR[3], the Supreme Court pointed out that, "there was nothing wrong or relying on a part of the confessional statement and rejecting the rest, and for this purpose, the Court drew support from various English authorities. When there is enough evidence

to reject the exculpatory part of the accused person's statements, the Court may rely on the inculpatory part."

Thus, Confession is a statement made by an accused person which is sought to be proved against him in a criminal proceeding to establish the commission of an offence by him. Confession if deliberately and voluntarily made may be accepted and relied upon by the court and conviction can be founded thereon. Furthermore, when two or more persons are tried together for the same offence, a confession given by one of the accused can be taken into consideration against the other co-accused.
Who can record Confessions?
Section 164 of the CrPC gives power to the Metropolitan Magistrate or Judicial Magistrate to record confession and statements during the course of investigation under chapter XII or under any law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial. The magistrate may record confession or statement made to him. But before doing so he is enjoined by sub section (2) thereto to explain to the person making it that he is not bound to make confession and that, if he does so it may be used as evidence against him.

In the case of Kartar Singh V. State Of Punjab[4], it was observed that, "what section 164(2) of the code requires as amplified by Rule 32 of Criminal Rules of Practice, is that as soon as the accused intending to make confession is produced and before he is told he would be allowed time for reflection, the magistrate should explain him that it is not intended to make him an approver and that, he is not bound to make confession and warn him that, if he does so, anything said by him will be taken down and thereafter be used as evidence against him as evidence in relation to his complicity in the offence at the trial, that is to follow. Compliance of sub-section (2) being mandatory and imperative, its non-compliance renders the confession inadmissible in evidence."

Types of Confession:

Judicial:
Judicial Confessions are those confessions which are made before a Judicial Magistrate or in Court in the due course of legal proceedings. A confession when made voluntarily can be relied upon by the court. As per Sec 164 of CrPC, power has been conferred upon a Metropolitan Magistrate or a Judicial Magistrate to record any confession or statement made to him, whether or not he has a jurisdiction in the case.

Sec 80 of the Evidence Act attaches evidentiary value to the confessional statements recorded by a Judge or a Magistrate and provides that the Court shall presume that such statements are genuine and true.

A confessional statement if made deliberately and voluntarily, can be accepted and relied upon by the court and conviction can be founded thereon. However, as a caution and in the interest of justice, the Supreme Court in numerous cases have held that, Judicial Confession alone cannot be the sole basis for the conviction of an Accused and it needs to be corroborated by other evidences.

In SARWAN SINGH v. STATE OF PUNJAB[5] reiterating the same principle, the Court observed in Para 10 that, "usually Courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case.

The Court further went on discussing the duty of a Magistrate whilst recording a statement u/s 164 of CrPC. It held that, the act of recording confessions u/s 164 of CrPC is a very solemn act and in discharging his duties under the said section, the Magistrate must take care to see that the requirements of sub-s. (2) and (3) of S. 164 are fully satisfied. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary.

The whole object of putting questions to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement threat or promise having reference to the charge against the accused person as mentioned in Sec 24 of Evidence Act. Furthermore, the Court held that time of at least 24 hours should be allowed to the accused person to decide whether or not he should make a confession, before recording his statement u/s 164 of CrPC. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded."
Extra - Judicial:
Extra-Judicial Confessions are those confessions which are made by the person elsewhere than before a Magistrate or Court. Extra-Judicial Confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity, police officers, etc. Extra-Judicial Confession may be in writing or oral.

Extra-Judicial Confessions is a very weak type of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept Extra-Judicial Confessions, it must be voluntary and must inspire confidence. If the court is satisfied that the Extra-Judicial Confession is voluntary and true and made in a fit state of mind, it can be acted upon to base the conviction. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession.

In the case of Ramanand V. State Of Uttar Pradesh[6] it was held that, "an Extra-Judicial Confession, if voluntary, truthful, and reliable is an efficacious piece of evidence to establish the guilt of the accused. However, an Extra-Judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an Extra-Judicial Confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. In order to accept Extra-Judicial Confessions, it must be voluntary and must inspire confidence. If the court is satisfied that the Extra-Judicial Confession is voluntary and true and made in a fit state of mind, it can be acted upon to base the conviction."

In Balwinder Singh V. State Of Punjab[7] it was held that, "An Extra-Judicial Confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an Extra-Judicial Confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The court usually look for independent and reliable corroboration before placing any reliance upon an extra judicial confession."

Again, In Nikhil Chandra Mondal V. State Of West Bengal[8], the Supreme Court reiterating the same principle held that, "It is a settled principle of law that extra-judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that it is well-settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It has been held that there is no doubt that conviction can be based on extra-judicial confession, but in the very nature of things, it is a weak piece of evidence."

In Sahadevan And Anr V. State Of Tamil Nadu[9] taking into account numerous case laws the Court laid down the following principles on Extra-Judicial Confessions as an admissible piece of evidence capable of forming the basis of conviction of an accused:
1. The extra-judicial confession is weak evidence by itself. It has to be examined by the court with greater care and caution.
2. It should be made voluntarily and should be truthful.
3. It should inspire confidence.
4. An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
5. For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
6. Such a statement essentially has to be proved like any other fact and in accordance with the law.
Retracted:
Retracted Confession is a statement made by an accused person before the trial begins by which he admits to have committed the offence but which he repudiates at the trial. When an accused who has made a confession says that he did not make a confession, it amounts to retraction of the confession already made.

A retracted Confession without independent corroboration cannot sustain conviction.[10] It is unsafe to base conviction on a retracted confession unless it is corroborated by trustworthy evidence. There is no definite law that a retracted confession cannot be the basis of the conviction but it has been laid down as a rule of practice and prudence to not rely on retracted confession unless corroborated.

In the case of K. I. Pavunny V. Asstt. Collector[11] it was held that:
When the court is satisfied that a retracted confession is true and voluntary, the same may be the basis for conviction.
Inculpatory:
Inculpatory Confessions are those Confessions where the accused directly admits his guilt.
Exculpatory:
Exculpatory Confessions are those confessions which absolves the accused from his liability.

Evidentiary Value of Confessional Statements under the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872:

Evidentiary Value of Sec 164 Statements:
Evidentiary value of statement recorded under section 164 CrPC, is that, the statement cannot be treated as substantive evidence when the maker does not depose of such facts on oath during trial. Before acting on a confession made before a Judicial Magistrate in terms of section 164, the court must be satisfied first that the procedural requirements laid down in sub section (2) to (4) are complied with. These are salutary safeguards to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such confession. The endeavour of court should be to apply its mind to the question as to whether the accused was free from threat, duress or inducement at the time of making confession.

The confession would not be ordinarily considered the basis for conviction. However, it is admissible, and conviction may also be based upon it, if it is found truthful and voluntary and in a given case some corroboration is necessary. Confession which is not retracted even at the stage of trial and even accepted by the accused in the statement under section 313 Cr.P.C. can be fully relied upon. So, the conviction based thereon together with other circumstantial evidence is sustainable.

In BISIPATI PADHAN v. STATE[12] and in RAM KISHAN v. HARMIT[13], it was held that, "A statement of a witness u/s 164 of the Code is not substantive evidence, but it is only a former statement made before an authority legally competent to investigate the fact. Such a statement can be used either for corroboration of the testimony of a witness u/s 157 of the Evidence Act or for contradiction thereof u/s 145 of the Evidence Act.
Whether Confession made to Police Officer is Admissible?
Section 24 of the Evidence Act enacts the general rule of inadmissibility of involuntary confessions, recognized all over the world and guarantee under Article 20(3) of the Constitution of India. A confession made under circumstances which would make it appear to the Court that such confession was caused by any inducement, threat or promise from a person in authority is irrelevant in a criminal proceeding.

It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-s. (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of Sec 27 of the Evidence Act.

The words of Sec 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Sec 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by Sec 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under Sec 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by Sec 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by Sec 26, unless it is made in the immediate presence of a Magistrate.

These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy and the fullest effect should be given to them.

Offering such inducement, threat or promise by police officers is also prohibited under Sec 163 of CrPC. Section 25 and 26 of the Evidence Act go far beyond the constitutional protection and debar confession made by an accused person to a police officer or whilst in police custody to anyone except in the immediate presence of a Magistrate from being given in evidence.

There is a total ban to Confessions made to a police officer. As per Sec 25 of the Evidence Act, "No confession made to a police officer, shall be proved as agaisnt a person accused of any offence." It also covers a confession made by a person when he was free and not in police custody as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession.

The object of Sec 25 is to ensure that the person accused of offence would not be induced by threat, coercion or force to make a confessional statement and the officer also would make every effort to collect the evidence of the commission of the crime de hors the confession to be extracted from the accused while they are in custody of the police officers.[14]

Any confessional statement given by accused before police is inadmissible in evidence and cannot be brought on record by the prosecution and is insufficient to convict the accused.[15]

If the First Information Report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by section 25. If confessions to police were allowed to be proved in evidence, the police would torture the accused and thus force him to confess to a crime which he might not have committed. A confession so obtained would naturally be unreliable. Such a confession will be irrelevant whatever may be its form, direct, express, implied or inferred from conduct.

In Dagdu V. State Of Maharashtra[16], the Hon'ble Supreme court has observed that "The archaic attempt to secure confessions by hook or by crook seems to be the be-all and end-all of the police investigation. The police should remember that confession may not always be a short-cut to solution. Instead of trying to "start" from a confession they should strive to "arrive" at it. Else, when they are busy on their short-route to success, good evidence may disappear due to inattention to real clues. Once a confession is obtained, there is often flagging of zeal for a full and through investigation with a view to establish the case de hors the confession, later, being inadmissible for one reason or other, the case fumbles in the court."
Whether Confession made to Police Patil is admissible?
In Vishwas Patil V. The State Of Maharashtra[17], Division Bench of the Bombay High Court has observed that, "a Police Patil appointed under the Maharashtra Village Police Act, 1967 is not a "Police Officer" for the purpose of Section 25 of the Evidence Act. The Police Patil under the village act is also not a police officer on the deeming fiction of law as there is no provision in the statute which specifically or even otherwise requires the Police Patil to be treated as a Police Patil for all intent and purpose and therefore confession made before a Police Patil would not attract Sec 25 of the Evidence Act."
When Confession made to Police Officer is Admissible:
Sec 27 of the Evidence Act is in the form of a proviso and it partially lifts the ban imposed by Sec 24, 25 and 26 of the Evidence Act. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-s. (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act.

The words of S. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Sec 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section.

Thus, except as provided by Sec 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under Sec 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by S. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate.
Sec 27 of Evidence Act vis-a-vis Art 20(3) of the Constitution of India
Art 20(3) of the Constitution of India provides that, "No person accused of any offence shall be compelled to be a witness against himself".

It is the responsibility of the prosecution to prove the guilt of the accused by bringing all the necessary evidence. However, it cannot shirk its responsibility and force or compel the accused to be a witness against himself as such a compulsion against the accused violates Art 20(3) of the Constitution of India.

The constitutionality of Sec 27 of the Evidence Act was challenged in various cases on the ground that it violates Art 20(3) of the Constitution but ultimately the controversy was resolved in the case of State of Bombay v. Kathi Kalu Oghad.

In State Of Bombay V. Kathi Kalu Oghad[18] it was held that, "An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.

The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by S. 27 of the Evidence Act. If the self-incriminatory information has been given by an accused person without any threat, that will not be hit by the provisions of cl. (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. Thus, the provisions of S. 27 of the Evidence Act are not without the prohibition aforesaid, unless compulsion had been used in obtaining the information."

Recently, in Ashish Jain V. Makrand Singh And Ors[19] the Supreme Court has held that, "if the confession of an accused that led to the recovery of the incriminating material was not voluntary, but caused by inducement, pressure or coercion such a confessional statement of the accused would be hit by Article 20(3) of the Constitution, rendering such a confession inadmissible. There is an embargo on accepting self-incriminatory evidence, but if it leads to the recovery of material objects in relation to a crime, it is most often taken to hold evidentiary value as per the circumstances of each case. However, if such a statement is made under undue pressure and compulsion from the investigating officer, the evidentiary value of such a statement leading to the recovery is nullified.

Doctrine of Confirmation by Subsequent Events:

The person giving the information must be 'accused of an offence'; and
He must be in 'police custody'.

Admissibility of Confessional Statements under various Criminal Laws in India:

Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS)
The Narcotic Drugs and Psychotropic Substances Act of 1985 was enacted for the purpose to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith and extends to the whole of India.

Sec 53 of the NDPS Act provides power to invest officers of certain departments such as Central Excise, Narcotics, Customs, Revenue Intelligence with powers of an officer-in-charge of a police station for the investigation of the offences under the Act.

Sec 67 of the NDPS Act provides power to call for information to any officer referred to in Sec 42 of the Act to call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the act or any rule or order made thereunder; require any person to produce or deliver any document or thing useful or relevant to the enquiry and examine any person acquainted with the facts and circumstances of the case.

In TOFAN SINGH v. STATE OF TAMIL NADU[22], two issues arose before the Supreme Court for consideration namely:
1. Whether an officer "empowered under Section 42 of the NDPS Act" and/or "the officer empowered under Section 53 of the NDPS Act" are "Police Officers" and therefore statements recorded by such officers would be hit by Section 25 of the Evidence Act; and
2. What is the extent, nature, purpose and scope of the power conferred under Section 67 of the NDPS Act available to and exercisable by an officer under section 42 thereof, and whether power under Section 67 is a power to record confession capable of being used as substantive evidence to convict an accused?
The Supreme Court answering both these issues held that officers invested with powers u/s 53 NDPS Act comes within the meaning of Sec 25 of Evidence Act and therefore any confessional statement made to them would be barred u/s 25 of Evidence Act and cannot be taken into account in order to convict the accused under the NDPS Act. Hence, statement recorded u/s 67 of NDPS Act cannot be used as confessional statement in trial of offence under the Act.

The Court further held that, statements made before the officer under Sec 53, even when "relevant" under Sec 53A, cannot, without corroborating evidence, be the basis for the conviction of an accused. Thus, to arrive at the conclusion

that a confessional statement made before an officer designated under Sec 42 or Sec 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with Sec 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India."

In AEJAZ ISMAIL SAYED v. UNION OF INDIA[23] reiterating the principles laid down in Tofan Sing's Case, the Court observed that, "officers of the NCB are police officer within the meaning of section 25 of the Evidence Act and as such, any statement recorded under section 67 of the Act by the empowered officer cannot be used as an evidence and relied upon by the prosecution. Once the material relied upon by the prosecution cannot be translated into evidence, then no charge can be framed against the accused" and thus the Court discharged the accused from the criminal proceedings.

Whether Excise Officers are Police Officers?
The Apex Court in RAJARAM JAISWAL v. STATE OF BIHAR[24] held that, "an Excise Officer was a Police Officer within the meaning of Sec 25 of the Evidence Act because an Excise Officer has the power of Investigation into an offence and he also has the power to file a chargesheet u/s 173 CrPC. So in view of these powers conferred upon an Excise Officer, he was considered to be a Police Officer within the meaning of Sec 25 of Evidence Act. Therefore, any statement made before an Excise Officer would invite the ban imposed u/s 25 of the Evidence Act."

Whether Officers of the Department of Revenue Intelligence (DRI) are Police Officers?
The most important attribute of police power is not only the power to investigate into the commission of cognizable offences but also the power to prosecute the offender by filing a chargesheet u/s 173 of CrPC. Unless an officer is invested under any special law with the powers of an investigation under the code including the power to submit a report u/s 173 of CrPC, he cannot be described to be a Police Officer u/s 25 of the Evidence Act.

In RAJ KUMAR KARWAL v. UNION OF INDIA[25] it was observed that, "officers of the Department of Revenue Intelligence (DRI) though invested with the powers of an Officer-in-Charge of a police station u/s 53 of NDPS Act but they are not entitled to exercise all the powers under Chapter XII of CrPC including the power to submit a report or chargesheet u/s 173 CrPC. Therefore, officers of the Department of Revenue Intelligence (DRI) cannot be held to be a Police Officer within the meaning of Sec 25 of Evidence Act and thus a confessional statement recorded before them would not be hit by the bar of Sec 25 of Evidence Act and would be admissible in evidence as against the maker of the statement.
Maharashtra Control of Organized Crime Act, 1999 (MCOCA)
The Maharashtra Control of Organized Crime Act of 1999 was enacted for the purpose to make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang, and for matters connected therewith or incidental thereto and extends to the whole of State of Maharashtra.

Sec 18 of the Act deals with the evidentiary value of the confessions of the accused recorded before police officers. It reads as follows,

Section 18 - Certain confessions made to Police Officers to be taken into consideration -

Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this Section, a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator:

Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together with the accused.

The Non-obstante Clause in Sec 18(1) of the Act overrides the ban imposed by Sec 25 of the Evidence Act and thus makes a confession made by an accused person before a Police Officer, not below the rank of Superintendent of Police, admissibile in the trial of such person.

The Section also provides certain safeguards such as the confession shall be recorded in a free atmosphere and in the same language in which the person is examined and as narrated by him and the police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording

such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same.

Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Special Court which may take cognizance of the offence.

The person from whom a confession has been recorded under sub-section (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under sub-section (4) alongwith the original statement of confession, written or recorded on mechanical device without unreasonable delay.

The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon.

In BHIKUBHAI DAYARAM THANKI v. STATE OF MAHARASHTRA[26] Division Bench of the Bombay High Court whilst relying upon State of Tamil Nadu v. Nalini (wherein the Supreme Court was considering the evidentiary value of confessions recorded u/s 15 of Terrorist and Disruptive Act) held that, "confessions recorded u/s 18 of MCOCA, which is similar to Sec 15 of TADA, are still admissible even when the accused are acquitted of the offence. Confession of an accused recorded u/s 18 of the MCOCA is admissible against co-accused as substantive evidence. Substantive evidence, however, does not necessarily mean substantial evidence. The substantive evidence would not mean that it should be treated automatically as substantial evidence. The quality of the evidence is important. What value is to be attached to a confession would fall within the domain of appreciation of evidence. The Hon'ble Supreme Court has further laid down that as a matter of prudence Court may look for some corroboration if confession is to be used against the co-accused and that would again be within the sphere of appraisal of evidence.
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA):
The Terrorist and Disruptive Activities (Prevention) Act was enacted with special provisions for the prevention of and coping with terrorist and disruptive activities and for matter connected therewith. The Act was originally enacted in the year 1985 under the background of the Punjab Insurgency and to curb the Separatist movement and was applied to the whole of India. The Act also had a Sunset Clause for lapsing after two years post its commencement, however, the Act was renewed in 1987, 1989, 1991 and 1993 before lapsing in the year 1995 due to the alleged misuse of the Act by the authorities. TADA was the First Anti-Terrorism Law legislated by the Government of India to define and counter terrorist activities.

The key features of the Act was that wide powers were given to Police and they were not obliged to produce a detainee before a Judicial Magistrate within 24 hours, confessions made to police were admissible in the court of law and the burden of proof to prove the innocence was upon the Accused, persons can be detained upto 1 year without formal charges being framed, police officers were also empowered to attach the properties of the accused under this Act. However, the Act was later on repealed due to its blatant misuse and utter disregard of the personal liberty of the Individual. The Conviction rates were far less than the Arrests which were made under the Act, persons can be detained upto 1 year without any formal charges or trial against him, torture meted out by police to obtain confessions, etc. The Act was repealed in 1995 and was succeeded by the Prevention of Terrorism Act of 2002.

Sec 15 of the Act deals with the evidentiary value of the confessions of the accused recorded before police officers. Sec 15 of TADA is identical to Sec 18 of MCOCA. It reads as follows:
15. Certain confessions made to police officers to be taken into consideration.:
1. Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or rules made thereunder:
  
  Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.
2. The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily.
The Non-obstante Clause in Sec 15(1) of the Act overrides the ban imposed by Sec 25 of the Evidence Act and thus makes a confession made by an accused person before a Police Officer, not below the rank of Superintendent of Police, admissibile in the trial of such person.

In STATE OF TAMIL NADU v. NALINI[27] the Supreme Court considering the evidentiary value of confessions recorded u/s 15 of Terrorist and Disruptive Act held that, "confessions of the accused made voluntarily and validly u/s 15 of TADA is admissible against the person making it and against the co-accused as a substantive evidence. Substantive evidence, however, does not necessarily means substantial evidence.

The substantive evidence would not mean that it should be treated automatically as substantial evidence. The quality of the evidence is important. What value is to be attached to a confession would fall within the domain of appreciation of evidence. The Hon'ble Supreme Court has further laid down that as a matter of prudence Court may look for some corroboration if confession is to be used against the co-accused and that would again be within the sphere of appraisal of evidence. Furthermore, the confessional statement duly recorded u/s 15 TADA would continue to remain admissible for the other offences under any other law which too were tried along with TADA offences, irrespective of the fact that the Accused was acquitted of offences under TADA in the trial.

TADA was enacted to meet an extraordinary situation existing in the country. Its departure from the law relating to confession as contained in the Evidence Act is deliberate. Law has to respond to the reality of the situation. Confession of the accused is admissible with the same force in its application to the co-accused who is tried in the same case. It is primary evidence and not corroborative.
Prevention of Terrorism Act, 2002 (POTA):
The Prevention of Terrorism Act of 2002 was enacted with the objective of strengthening the anti-terrorism operations in India. The Act was enacted as a response to fight terrorism in India and to have stringent laws due to several terrorist attacks that were being carried out in India especially the Parliament Attack in 2001. The Act repealed the Terrorist and Disruptive Activities (Prevention) Act however came to an end in 2004. The provisions of POTA were similar to TADA Act. POTA provided that a suspect could be detained for upto 180 days without filing of chargesheet, confessions made by the accused to police were admissible in the court of law, attachment of properties of the accused under the Act, wide powers granted to Police Officers for search, seizure and arrest, etc. However, the Act of 2002 received major criticism as the said act was arbitrarily used to target political opponents and the arbitrary arrests made since the enaction of the Act, without any sufficient evidences.

Sec 32 of the Act deals with the evidentiary value of the confessions of the accused recorded before police officers. Sec 32 of POTA is identical to Sec 18 of MCOCA and Sec 15 of TADA.

It reads as follows,

32. Certain confessions made to police officers to be taken into consideration:
1. Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or the rules made thereunder.
2. A police officer shall, before recording any confession made by a person under sub-section (1), explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him:
  
  Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession.
3. The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it.
4. The person from whom a confession has been recorded under sub-section (1), shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate alongwith the original statement of confession, written or recorded on mechanical or electronic device within forty-eight hours.
5. The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb-impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody.
The Non-obstante Clause in Sec 32(1) of the Act overrides the ban imposed by Sec 25 of the Evidence Act and thus makes a confession made by an accused person before a Police Officer, not below the rank of Superintendent of Police, admissibile in the trial of such person.

The Section also provides certain safeguards and procedure, which are mandatory, such as the confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it and where such persons prefers to remain silent, the police officer shall not compel or induce him to make any confession.
Customs Act, 1962:
The Customs Act of 1992 was enacted for the purpose to consolidate and amend the law relating to Customs and extends to the whole of India.

Sec 107 of the Act provides power to officer of Customs to examine persons. Any officer of customs may during the course of any enquiry in connection with the smuggling of any goods
- require any person to produce or deliver any document or thing relevant to the enquiry;
- examine any person acquainted with the facts and circumstances of the case.
108. Power to summon persons to give evidence and produce documents:
1. Any Gazetted Officer of customs 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.
2. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
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 and other things as may be required:
Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860).

In State Of Punjab V. Barkatram[28] the Supreme Court has held that, "a customs officer is not a police officer within the meaning of Section 25 of the Evidence Act. The words "Police Officer" are not to be construed in a narrow way but have to be construed in a wide and popular sense however, not such a wide meaning as to include persons on whom certain police powers are conferred. The customs officer is not primarily concerned with the detection and punishment of crime committed by a person, but is mainly interested in detection and prevention of smuggling goods and safeguarding the recovery of customs duties. He is more concerned with the goods and customs duty than with the offender. The duties of the customs officers vary much different from those of the police officers and their possessing certain powers, which may have similarity with those of police officers for the purpose of detecting the smuggling of goods and the persons responsible for it, would not make them police officers. Merely because similar powers in regard to detection of infractions of customs laws have been conferred on the officers of the customs department as are conferred on officers of the police is not sufficient ground for holding them to be police officers within the meaning of Sec 25 Evidence Act."

In Badku Joti Sawant V. State Of Mysore[29] And In Ramesh Chandra Mehta V. State Of West Bengal[30] the Supreme Court reiterating the same principle has held that, "a custom officer is not a police officer within the meaning of Sec 25 of the Evidence Act and therefore a statement made before a customs officer, by a person who is arrested, is not covered by Sec 25 of the evidence Act and is therefore admissible in evidence. A Customs Officer is not a member of the police force. He is not entrusted with the duty of maintaining law and order. He is entrusted with power which specifically relates to the collection of customs duties and prevention of smuggling. The test for determining whether an officer of customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qua investigation of an offence, including the power to submit a report under Section 173 of the Code of Criminal Procedure. A Customs Officer exercising power to make an enquiry cannot submit a report under Section 173 of the code of Criminal Procedure."

Therefore, a confessional statement recorded before a Customs Officer would not be hit by the bar of Sec 25 of Evidence Act and would be admissible in evidence as against the maker of the statement.
Prevention of Money Laundering Act, 2002 (PMLA):
The Prevention of Money Laundering Act of 2002 was enacted for the purpose to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto and extends to the whole of India.

Sec 50 of the Act provides for powers of authorities regarding summons, production of documents and to give evidence. The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under the Act. All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. Every proceeding under sub-sections (2) and (3) of the act shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).

In Vijay Madanlal Choudhary & Ors V. Union Of India [31] it was held that, "ED officers are not police officers and therefore statement recorded by them cannot be hit by Articles 20(3) & 21 of the Constitution of India and Sec 25 of the Indian Evidence Act.

Art 20(3) would not come into play in respect of process of recording statement pursuant to summons issued u/s 50 of the Act which is only for the purpose of collection of information or evidence in respect of the proceedings under the act. Art 20(3) of the Constitution of India and Sec 25 of the Indian Evidence Act would come into play only when the person so summoned is an accused of any offence at the relevant time and is being compelled to be a witness against himself.

At the stage of issuance of summons u/s 50 of the Act for the purpose of investigation and recording of statement, no formal charge is framed against the accused person and therefore the accused person cannot claim the protection of Art 20(3) of the Constitution or Sec 25 of the Evidence Act. However, if his/her statement is recorded after a formal arrest by ED official, the ban imposed by Art 20(3) of the Constitution and Sec 25 of Evidence Act would come into play to urge that the same being in the nature of confession, shall not be proved against him."

End-Notes:

Om Prakash v. State (AIR 1960 SC 409)
AIR 1939 P.C. 47
1969 Cri.L.J. 671
1994 Cri.L.J. 3139
AIR 1957 SC 637
AIR 2022 SC 5273
AIR 1996 SC 607
Criminal Appeal No. 2269 of 2010
(2012) 6 SCC 403
Palanisamy v. State (AIR 1986 SC 593)
(1997) 3 SCC 721
AIR 1969 Orissa 289
AIR 1972 SC 468
State of Gujarat v. Anirudh Singh (AIR 1997 SC 2780)
Ram Singh v. State of Maharashtra, (1999 Cr LJ 3763 (Bom))
AIR 1977 SC 1579
Criminal Appeal No. 844 of 2018
AIR 1961 SC 1808
2019 Cri.L.J. 1316
AIR 1947 PC 67
AIRONLINE 2023 SC 764
AIR 2020 SC 5592
AIRONLINE 2021 J AND K 484
AIR 1964 SC 828
AIR 1991 SC 45
2018 (3) ABR (cri) 787
1999 Cri.L.J. 3124
AIR 1962 SC 276
AIR 1966 SC 1746
AIR 1970 SC 940
AIRONLINE 2022 SC 1139

Law Article in India

Ask A Lawyers

A Critical Analysis of Admissibility of Confessional Statements under various Criminal Laws in India

Confession:

What is a Confession

Who can record Confessions?

Types of Confession:

Evidentiary Value of Confessional Statements under the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872:

Doctrine of Confirmation by Subsequent Events:

Admissibility of Confessional Statements under various Criminal Laws in India:

Types of Confession:

Evidentiary Value of Confessional Statements under the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872:

Doctrine of Confirmation by Subsequent Events:

Admissibility of Confessional Statements under various Criminal Laws in India:

Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS)

Maharashtra Control of Organized Crime Act, 1999 (MCOCA)

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA):

Prevention of Terrorism Act, 2002 (POTA):

Customs Act, 1962:

Prevention of Money Laundering Act, 2002 (PMLA):

Law Article in India

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A Critical Analysis of Admissibility of Confessional Statements under various Criminal Laws in India

Confession:

What is a Confession

Who can record Confessions?

Types of Confession:

Evidentiary Value of Confessional Statements under the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872:

Doctrine of Confirmation by Subsequent Events:

Admissibility of Confessional Statements under various Criminal Laws in India:

Types of Confession:

Evidentiary Value of Confessional Statements under the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872:

Doctrine of Confirmation by Subsequent Events:

Admissibility of Confessional Statements under various Criminal Laws in India:

Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS)

Maharashtra Control of Organized Crime Act, 1999 (MCOCA)

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA):

Prevention of Terrorism Act, 2002 (POTA):

Customs Act, 1962:

Prevention of Money Laundering Act, 2002 (PMLA):

Law Article in India

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