CASE FOR A COMMON INVESTIGATIVE PROCEDURE FOR ALL AGENCIES
Keywords:
COMMON INVESTIGATIVE, PROCEDURE, AGENCIESAbstract
Investigation inter alia involves fact-finding through custodial interrogation. In the process of investigation, the fundamental rights of an arrested person are subjected to certain ‘reasonable restrictions.’ In order to ensure that the investigating agency does not abuse its powers, certain safeguards are provided under the Code of Criminal Procedure, 1973 (CrPC) as also certain evidentiary rules enacted into the Indian Evidence Act, 1872 (Evidence Act) which bar custodial confessions made in Police Custody. Self-inculpatory statements made by arrested persons in the custody of agencies like Customs including the Directorate of Revenue Intelligence (DRI), Directorate of Enforcement (ED) which perform the work of enforcing revenue and anti-money laundering laws, are admissible in evidence and it has been held in a catena of judgments that Customs officers are not Police officers for the purpose of section 25 of the Evidence Act (which makes confessions made to a Police officer inadmissible in evidence), often on the ground that Customs officers do not maintain law and order. Agencies like the DRI which collect intelligence also perform tasks of investigation and prosecution of offences under the Customs Act, 1962. The ED investigates and prosecutes for offences under the Prevention of Money Laundering Act, 2002 (PMLA). These agencies are exempted from disclosing information under Section 24 of the Right to Information Act, 2005 (RTI), which is meant to exempt ‘intelligence and security’ agencies.
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References
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ii Regulated by Circular No. 13/2013-Cus dated 17th September 2013 issued vide F. No. 394/68/2013(AS)
regarding ‘Guidelines for Arrest & Bail in relation to offences punishable under Customs Act’ and by Circular
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under Central Excise Act, 1944’
iii Although the Code of Criminal Procedure has been revised and a new Code has come into place from 25th
January 1974
iv Defined u/s 2(c) of the CrPC ― “cognizable offence” means an offence for which, and “cognizable case”
means a case in which, a police officer may, in accordance with the First Schedule or under any other law for
the time being in force, arrest without warrant.
v AIR 1962 SC 276
vi Griffiths, Percival, ‘To Guard My People: The History of the Indian Police’, Earnest Benn, London, 1971, pp.
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vii Ibid
viii Ibid, pp 90
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xii Dhull, Kavita, ‘A study of confession under criminal law with special reference to its evidentiary value’, PhD
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xiii Ibid, pp. 48
xiv Ibid, pp. 46
xv (1994) 3 SCC 440
xvi Ibid
xvii Ibid
xviii Ibid
xix Writ Petition (Criminal) No. 2453/2018 (Delhi High Court)
xx Order dated 4th September 2018 in Criminal Appeals Nos. 1114-1115/2018, Coram: Hon’ble Justice A. M.
Khanwilkar and Hon’ble Justice D. Y. Chandrachud
xxi Writ Petition (Criminal) No. 3818 of 2018, Order dated 17th October 2019
xxii Ibid
xxiii Available at https://indianexpress.com/article/cities/delhi/murder-case-filed-in-jewellers-death-at-dri-officeafter-delhi-hc-intervention-5432116/ Accessed on 27th August 2020
xxiv Writ Petition (Criminal) No. 67 of 2017, Decided on 23rd November 2017
xxv s. 45(1) of the Prevention of Money Laundering Act, 2002
xxvi AIR 1970 SC 940
xxvii AIR 1978 SC 1025
xxviii AIR 1992 SC 1795
xxix Criminal Appeal No. 1759 of 2017, Order dated 10th October 2017; Coram: Hon’ble Justice Kurain Joseph
and Hon’ble Justice R. Banumathi
xxx AIR 1997 SC 610
xxxi (2011) 12 SCC 362
xxxii The Narcotic Drugs and Psychotropic Substances Act, 1985 (Act no. 61 of 1985)
xxxiii Order dated 7th December 2010, https://main.sci.gov.in/jonew/bosir/orderpdfold/1200286.pdf, Accessed on
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xxxiv (2011) 14 SCC 1
xxxv Rajuram Purohit v. Union of India and Ors., Criminal Writ Petition No. 349 of 2018, Order dated 25th
January 2018 .
followed in Amrutlal Kaluram Purohit v. Union of India and Ors., Criminal Writ Petition No. 572 of 2018,
Order dated 10th April 2018 and in Shubham Jain and Ors. v. Union of India and Ors., Criminal Writ Petition
No. 3104 of 2018, Order dated 20th July 2018
xxxvi State of Punjab v. Barkat Ram, AIR 1962 SC 276 (2-1 Majority) : Ilias v. Collector of Customs, Madras,
(1969) 2 SCR 613 (5 Judge Constitution Bench)
xxxvii Romesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940
xxxviii Ibid
xxxix Poolpandi and Ors. v. Superintendent, Central Excise and Ors., AIR 1992 SC 1795
xl Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440
xli Section 104(3), Customs Act, 1962 (52 of 1962); Section 13 r/w Section 21(2), Central Excise Act, 1944 (1 of
1944)
xlii Om Prakash and Anr. v. Union of India and Anr., (2011) 14 SCC 1
xliii Section 108, Customs Act, 1962 (52 of 1962); Section 50, Prevention of Money Laundering Act, 2002 (15 of
2003)
xliv State of Punjab v. Barkat Ram, AIR 1962 SC 276
xlv Balbir Singh v. State of Punjab, AIR 1957 SC 216 (4 Judge Bench)
xlvi Section 138A, Customs Act, 1962 (52 of 1962); Section 24, Prevention of Money Laundering Act, 2002 (15
of 2003)
xlvii Balbir Singh v. State of Punjab, AIR 1957 SC 216 (4 Judge Bench)
xlviii Section 193, Indian Penal Code, 1860 (45 of 1860)
xlix Section 228, Indian Penal Code, 1860 (45 of 1860)
l Section 104, Customs Act, 1962 (52 of 1962); Section 13, Central Excise Act, 1944 (1 of 1944)
li Circular No. 38/2013-Customs issued vide F. No. 394/68/2013(AS) dated 17th September 2013 regarding
‘Guidelines for Arrest & Bail in relation to offences punishable under Customs Act’ - "Since arrest takes away
the liberty of an individual, the power must be exercised with utmost care and caution in cases where a
Commissioner of Customs or Additional Director General has reason to believe on basis of information or
suspicion that such person has committed an offence under the Act punishable under the sections 132 or 133 or
135 or 135A or 136 of the Customs Act, 1962." and Circular No. 974/08/2013-CX., dated 17-9-2013 Issued vide
F.No. 4/2/2011-CX-1 also dated 17th September 2013 applicable to the Central Excise department also speaks
of arrest in respect of offences which are cognizable. A person in order to be arrested under the Central Excise
Act is also required to be suspected of committing an offence punishable under the Act.
lii Section 2(n) of the Code of Criminal Procedure, 1973 (2 of 1974)
liii 45 of 1860
livMerriam Webster Legal Dictionary. https://www.merriam-webster.com/dictionary/suspect#legalDictionary.
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lvii Indian Evidence Act, 1872 (1 of 1872)
lviii Law Commission of India. 152nd Report on Custodial Crimes. Chapter 11 “Law of Evidence”. Available at
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lix 1990 CrLJ 2201
lx Section 8(1) of the Right to Information Act, 2005
lxi Section 24 of the Right to Information Act, 2005
lxii Ibid
lxiii Ibid
lxiv Schedule II, Right to Information Act, 2005
lxv 23, 24 and 25 added by GSR(E) dated 9th June 2011 issued by Ministry of Personnel, Public Grievances and
Pensions (Department of Personnel and Training)
lxvi Transfer Case (Civil) No. 136 of 2015, Ajay Kumar Agrawal v. Union of India and Ors.
lxvii Available at http://www.dri.nic.in/main/charter, Accessed on 30th October 2018
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lxix Available at https://en.wikipedia.org/wiki/Intelligence_Bureau_(India), Accessed on 30th October 2018
lxx In re Death of Sawinder Singh Grover, 1995 Supp (4) SCC, 450
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lxxiii Entry 5, Schedule 2, Right to Information Act, 2005 (22 of 2005)
lxxiv Entry 3, Schedule 2, Right to Information Act, 2005 (22 of 2005)
lxxv 22 of 2005
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lxxviii 1984 c. 60
lxxix HMRC's criminal investigation powers and safeguards. Paragraph 3 ‘Police and Criminal Evidence’: UK
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lxxx Ibid
lxxxi UK Government Legislation. Criminal Evidence Act 1984 (Application to Revenue and Customs) Order
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lxxxii “58. Access to legal advice.
(1)A person arrested and held in custody in a police station or other premises shall be entitled, if he so
requests, to consult a solicitor privately at any time.
(2)Subject to subsection (3) below, a request under subsection (1) above and the time at which it was
made shall be recorded in the custody record.
(3)Such a request need not be recorded in the custody record of a person who makes it at a time while
he is at a court after being charged with an offence.
(4)If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable
except to the extent that delay is permitted by this section.
(5)In any case he must be permitted to consult a solicitor within 36 hours from the relevant time, as
defined in section 41(2) above.
(6)Delay in compliance with a request is only permitted—
(a)in the case of a person who is in police detention for [F1an indictable offence] ; and
(b)if an officer of at least the rank of superintendent authorises it.
(7)An officer may give an authorisation under subsection (6) above orally or in writing but, if he gives
it orally, he shall confirm it in writing as soon as is practicable.
(8)[F2Subject to sub-section (8A) below] An officer may only authorise delay where he has reasonable
grounds for believing that the exercise of the right conferred by subsection (1) above at the time when
the person detained desires to exercise it—
(a)will lead to interference with or harm to evidence connected with [F3an indictable offence] or
interference with or physical injury to other persons; or
(b)will lead to the alerting of other persons suspected of having committed such an offence but not yet
arrested for it; or
(c)will hinder the recovery of any property obtained as a result of such an offence.
[F4(8A)An officer may also authorise delay where he has reasonable grounds for believing that—
(a)the person detained for [F5the indictable offence] has benefited from his criminal conduct, and
(b)the recovery of the value of the property constituting the benefit will be hindered by the exercise of
the right conferred by subsection (1) above.
(8B)For the purposes of subsection (8A) above the question whether a person has benefited from his
criminal conduct is to be decided in accordance with Part 2 of the Proceeds of Crime Act 2002.]
(9)If delay is authorised—
(a)the detained person shall be told the reasons for it; and
(b)the reason shall be noted on his custody record.
(10)The duties imposed by subsection (9) above shall be performed as soon as is practicable.
(11)There may be no further delay in permitting the exercise of the right conferred by subsection (1)
above once the reason for authorising delay ceases to subsist.
[F6(12)Nothing in this section applies to a person arrested or detained under the terrorism provisions.]
lxxxiii UK Government Legislation. Criminal Evidence Act 1984 (Application to Revenue and Customs) Order
2015. Wesbite : https://www.legislation.gov.uk/uksi/2015/1783/contents/made. (Last visited on 2
nd May 2019).
lxxxiv (2008) 16 SCC 417
lxxxv The Narcotic Drugs and Psychotropic Substances Act, 1985 (Act no. 61 of 1985)
lxxxvi Available at http://ncrb.gov.in Accessed on 4th November 2018
lxxxvii Available at http://ncrb.gov.in/, Crime Statistics, Limitations.
lxxxviii AIR 1997 SC 610
lxxxix Ibid
xc Ibid
xci Section 6, Code of Criminal Procedure (Amendment) Act, 2008
xcii 384 U.S. 436
xciii 378 U.S. 478
xciv Sections 138A and 138B of the Customs Act, 1962
xcv Law Commission of India, 152nd Report on Custodial Crimes, Chapter 11, page 43
xcvi Section 154, CrPC
xcvii Section 156(3), CrPC
xcviii Shyamlal Mohanlal Choksi v. State of Gujarat, AIR 1965 SC 1251
xcix Tahsildar Singh v. State of UP, AIR 1959 SC 1012
c Section 24, Indian Evidence Act, 1872 – ‘Confession caused by inducement, threat or promise, when
irrelevant in criminal proceeding.–– A confession made by an accused person is irrelevant in a criminal
proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat
or 2 promise having reference to the charge against the accused person, proceeding from a person in authority
and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him
reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature
in reference to the proceedings against him.’
ci Ram Lal Narang v. State through Delhi Administration, (1979) 2 SCC 322
cii Baladin And Ors. v. State Of Uttar Pradesh, AIR 1956 SC 181
ciii Section 44, Police Act, 1861
civ Naresh J. Sukhawani v. Union of India, AIR 1996 SC 522
cv R. N. Kaker v. Shabir Fidahusein, 1990 CrLJ 144 (Bom)
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cvii Available at https://en.wikipedia.org/wiki/Intelligence_Bureau_(India), Accessed on 14th November 2018
cviii Available at https://en.wikipedia.org/wiki/Research_and_Analysis_Wing, Accessed on 14
th November 2018
cix Available at http://www.dri.nic.in/main/charter, Accessed on 14th November 2018
cx Section 2(h) and Chapters XII, XVI, XVII, XVIII of CrPC
cxi Section 23, Police Act, 1861
cxii Section 11(2)(a) of the Customs Act, 1962
cxiii Section 11(2)(q) of the Customs Act, 1962
cxiv Available at https://en.oxforddictionaries.com/definition/intelligence, Accessed on 14th November 2018
cxv Available at https://www.dictionary.com/browse/intelligence, Accessed on 14th November 2018
cxvi Available at https://en.oxforddictionaries.com/definition/security, Accessed on 14th November 2018
cxvii Section 2(h), CrPC
cxviii Available at https://en.oxforddictionaries.com/definition/prosecution, Accessed on 14th November 2018
cxix Section 138A, Customs Act, 1962 138A. Presumption of culpable mental state.—(1) In any prosecution for
an offence under this Act which requires a culpable mental state on the part of the accused, the court shall
presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had
no such mental state with respect to the act charged as an offence in that prosecution. Explanation.—In this
section, ―culpable mental state‖ includes intention, motive, knowledge of a fact and belief in, or reason to
believe, a fact. (2) For the purposes of this section, a fact is said to be proved only when the court believes it to
exist beyond reasonable doubt and not merely when its existence is established by a preponderance of
probability.
cxx Section 108, Customs Act, 1962
cxxi AIR 1992 SC 1795
cxxii Available at http://lawcommissionofindia.nic.in/101-169/Report152.pdf, Chapter 11, Accessed on 15th
November 2018
cxxiii A. K. Kraipak & Ors. Etc v. Union of India & Ors., AIR 1970 SC 150
cxxiv Available at http://www.mirandawarning.org/whatareyourmirandarights.html, Accessed on 27th August
2020.
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