Article by Vijay Pal Dalmia, Advocate
Supreme Court of India & High Court
Mobile: +91 9810081079 Email: vpdalmia@vaishlaw.com
and
Maryam Quadri
LL.B. 3rd Year (3 Year Course), Faculty of Law, Delhi University, India
Maryamquadri0204@gmail.com

It has been held in catena of judgements that Enforcement Directorate officials do not fall within the category of police officers.

For example, in the case of Directorate of Enforcement v. Deepak Mahajan (http://jajharkhand.in/wp/wp-content/judicial_updates_files/07_Criminal_Law/04_arrest_and_custody/Directorate_Of_Enforcement_vs_
Deepak_Mahajan_on_31_January,_1994.PDF) , the Hon'ble Supreme Court held that:-

  • It is true that there are a series of decisions holding the view that an Officer of Enforcement or a Customs Officer is not a police officer though such officers are vested with the powers of arrest and other analogous powers.

In Vakamulla Chandrashekhar vs Enforcement Directorate & Anr., the Delhi High Court clearly laid down that-

  • The authorities for the purposes of PMLA referred to and appointed under Sections 48 and 49 of the said Act are not police officers. Firstly, this position is clear from the provisions of the Act itself.
  • A range of officers - including "officers of police" are "empowered and required to assist the authorities in the enforcement of this Act" (see Section 54 of PMLA)
  • If the authorities under the Act - who are authorised to carry out investigation under the Act, were considered by the Parliament to be police officers, there was no need to empower and oblige the officers of police to assist the authorities under the Act in the implementation of the Act.

Thus, it is apparent that the officials of ED are not police officers.

Secondly, for the purpose of confessional statements made to such ED officials, they would still be considered to not be police officers and therefore, the confession would be admissible in evidence.

The Hon'ble Supreme Court held in the case of Assistant Collector of Central Excise, Rajamundry vs. Duncan Agro Industries Ltd. and Ors (https://indiankanoon.org/doc/695110/ ) that,

  • It must be remembered that there is no ban in regard to the confession made to any person other than a police officer, except when such confession was made while he is in police custody.
  • The inculpatory - statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody.
  • Nonetheless the caution contained in law is that such a statement should be scrutinized by the court in the same manner as confession made by an accused person to any non-police personnel.
  • The court has to be satisfied in such cases, that any inculpatory statement made by an accused person to a gazetted officer must also pass the tests prescribed in Section 24 of the Evidence Act.
  • If such a statement is impaired by any of the vitiating premises enumerated in Section 24, that statement becomes useless in any criminal proceedings.

The above judgement was pronounced in respect of Custom officials, however as stated earlier, the terms of section 108 of Customs Act and Section 50 of PMLA are analogous and therefore, the decisions of the court may be applied to PMLA as well.

Further, the Hon'ble Supreme Court in the case of Francis Stanly vs. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram (https://indiankanoon.org/doc/1703848/ ) (in respect of Narcotic Drugs and Psychotropic Substances Act, 1985) held that:-

  • The confession was made by the accused not before an ordinary police officer, but before an officer under the NDPS Act who is an officer of the Department of Revenue Intelligence and such a confession is not hit by Section 25 of the Evidence Act.
  • Such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under Act. Hence the alleged confession made by the appellant must be subjected to closer scrutiny than would otherwise be required.

Thus, confession or statements made by a person before an official of ED is admissible under the Evidence Act in view of the above mentioned decisions, particularly for the reason that ED officials are not Police Offices as contemplated under the Indian Evidence Act, 1872 but such a confession is subject to a close scrutiny and must pass the tests given under Section 24 of Evidence Act so as to render it voluntary and free.

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