Introduction
For three decades, many NDPS prosecutions rested on a statement the accused signed before an officer of the Narcotics Control Bureau, the Directorate of Revenue Intelligence or another enforcement agency, recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Whether that statement could be used as a confession turned on one question: is the officer who records it a "police officer" under Section 25 of the Evidence Act, which bars confessions made to the police?
In 2020 the Supreme Court answered that question in Tofan Singh v. State of Tamil Nadu. This guide traces how the law reached that point, what Tofan Singh decided, and how courts have since applied it at trial, at the bail stage, when framing charges and on petitions to quash. It draws on Supreme Court and Rajasthan High Court judgments published on NyayVidhan, each cited with the Court's own paragraph numbers.
The Statutory Provisions
Section 67 of the NDPS Act, set out in full by the Supreme Court in Tofan Singh (para 58), allows an officer referred to in Section 42, authorised by the Central or a State Government, during an enquiry into a contravention of the Act, to call for information from any person, to require any person to produce or deliver a document or thing useful or relevant to the enquiry, and to examine any person acquainted with the facts and circumstances of the case. Section 53, also set out in Tofan Singh, allows the Central Government to invest officers of departments such as central excise, narcotics, customs and revenue intelligence, and a State Government to invest officers of departments such as drugs control, revenue or excise, with the powers of an officer in charge of a police station for the investigation of offences under the Act.
On the evidence side, Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved against a person accused of an offence, and Section 24 excludes a confession caused by an inducement, threat or promise proceeding from a person in authority (both set out in Tofan Singh, para 28). Section 30 deals with the confession of a co-accused tried jointly (set out in Aloke Nath Dutta, para 128). Section 23 of the Bharatiya Sakshya Adhiniyam, 2023, which the Supreme Court has described as analogous to Section 25, likewise provides that no confession made to a police officer shall be proved against an accused (Mulla Afroz v. Union of India, paras 31-32). The judgments discussed here were decided under the Evidence Act.
Who Is a "Police Officer"? The Pre-NDPS Cases
The question first arose under the customs and railway laws. In State of Punjab v. Barkat Ram ([1962] 3 SCR 338), a majority of the Supreme Court held that customs officers are not police officers under Section 25: their powers serve the levy of customs duties, not the prevention and detection of crime, and possessing some police-like powers does not make an officer a police officer (paras 11, 20, 25). Subba Rao J., dissenting, would have held a customs officer to be a police officer in his police functions (paras 38-39).
Romesh Chandra Mehta v. State of West Bengal (AIR 1970 SC 940) made the power to submit a report under Section 173 of the Code the decisive test, which customs officers lacked (paras 9, 24, 26). It also held that a person examined or arrested in a customs enquiry is not "accused of an offence" for Article 20(3) until a complaint is filed (paras 13, 27-28). Balkrishna Chhaganlal Soni v. State of West Bengal ((1974) 3 SCC 567) added that a customs officer may examine a suspect under Section 107 of the Customs Act, and that a statement recorded before the person is an accused is not hit by Article 20(3) (paras 3, 11, 16).
The Railway Protection Force cases applied the same test. An RPF officer inquiring under the Railway Property (Unlawful Possession) Act, 1966 cannot file a police report and so does not conduct an investigation under the Code (State of U.P. v. Durga Prasad, (1975) 3 SCC 210, paras 10, 17), and is not a police officer under Section 25 (Balkishan A. Devidayal v. State of Maharashtra, (1980) 4 SCC 600, paras 55, 59). Balkishan also held that Article 20(3) protects only a person against whom a formal accusation has been made by FIR, complaint or other formal document (paras 66, 70).
Article 20(3) itself reaches back into the investigation. In Nandini Satpathy v. P.L. Dani ((1978) 2 SCC 424), the Supreme Court held that the right against self-incrimination operates from the stage of police interrogation, and that compelled testimony includes evidence obtained by psychic torture, atmospheric pressure or overbearing interrogation (paras 47, 58-59).
NDPS Officers Before 2020: Two Lines of Authority
In Raj Kumar Karwal v. Union of India ((1990) 2 SCC 409), the Supreme Court carried the Section 173 test into the NDPS Act: DRI officers invested with Section 53 powers cannot file a police report, so they are not police officers and confessions made to them are not barred by Section 25 (paras 14, 21-22). Kanhaiyalal v. Union of India ((2008) 4 SCC 668) built on it, holding that a Section 67 statement recorded by an empowered officer could be used as a confession against its maker unless made under threat or coercion, and that an unproved retraction did not dilute it (paras 37-40).
A different line took shape the same year. In Noor Aga v. State of Punjab ((2008) 16 SCC 417), the Supreme Court held that a customs confession under Section 108 of the Customs Act cannot alone found an NDPS conviction, and that officers with Section 53 powers are police officers for Section 25 of the Evidence Act (paras 109, 111). In Nirmal Singh Pehlwan v. Inspector, Customs ((2011) 12 SCC 298), a Bench faced with both rulings followed the later and more elaborate Noor Aga (para 11).
Meanwhile, convictions continued to rest on Section 67 statements. In Union of India v. Satrohan ((2008) 8 SCC 313), the accused's unretracted Section 67 statement admitting ownership was relied on to restore a conviction (paras 7, 16). In Ram Singh v. Central Bureau of Narcotics ((2011) 11 SCC 347), the Court treated Central Bureau of Narcotics officers as not police officers and said a conviction could rest solely on a voluntary Section 67 confession (paras 8, 10, 12), though it set aside the conviction because a hotel servant's own statement showed only that he worked for the owners, not that he possessed the opium (para 15). In Pon Adithan v. Deputy Director, NCB ((1999) 6 SCC 1), a confession was held voluntary despite custody, as there was no complaint to the Magistrate and only a vague, belated claim of threat (para 7).
Courts also scrutinised how such statements were obtained. In Union of India v. Jarooparam (2018 INSC 78), a Section 67 statement recorded in custody, without the time being noted, was not treated as voluntary (para 12). In Union of India v. Leen Martin (2018 INSC 82), the Court held that exclusive reliance on a retracted Section 67 statement is neither prudent nor safe (para 11).
The Reference and Tofan Singh (2020)
In 2013 the Supreme Court in Tofan Singh v. State of Tamil Nadu ((2013) 16 SCC 31) found that Kanhaiyalal's view rested on observations without detailed discussion, and that whether an officer is a police officer turns on the "influence or authority" he can exercise over the person confessing, not on a mere comparison of powers (paras 28-29, 34, 38). It referred two questions to a larger Bench: whether an NDPS investigating officer is a police officer, and whether a Section 67 statement can be treated as a confession even if he is not (paras 39-40, 42).
The three-judge Bench answered both by majority in Tofan Singh v. State of Tamil Nadu (2020 INSC 620; (2021) 4 SCC 1):
- Officers invested with powers under Section 53 of the NDPS Act are police officers within Section 25 of the Evidence Act (para 155).
- A statement recorded under Section 67 cannot be used as a confessional statement in the trial of an NDPS offence (para 155).
- Section 67 permits only a preliminary enquiry to gather information, not the recording of confessions (paras 59-65).
- Raj Kumar Karwal and Kanhaiyalal were overruled; Noor Aga and Nirmal Singh Pehlwan were held to be correct in law (paras 153-154).
At Trial After Tofan Singh
No conviction on Section 67 statements alone. In Bothilal v. Intelligence Officer, NCB (2023 INSC 432), confessions made to an officer empowered under Section 53 were kept out of consideration under Section 25, and the appellants were acquitted (paras 11-12, 19). In Balwinder Singh (Binda) v. NCB (2023 INSC 852), a conviction based only on the accused's and a co-accused's Section 67 statements could not stand (paras 10, 12).
Independent evidence still counts. The same judgment shows the other side: where possession is independently proved, the conviction survives and the presumption of culpable mental state under Section 35 must be drawn. Balwinder Singh was acquitted, but his co-appellant's conviction was affirmed (paras 12, 19, 27).
A co-accused's statement. A co-accused's Section 67 statement is inadmissible after Tofan Singh and cannot be read against another accused (Firdoskhan Khurshidkhan v. State of Gujarat, 2024 INSC 351, paras 26-27). In Manoj Tejraj Jain v. State of Gujarat (2025 INSC 1090), a co-accused's statement to the police at his arrest was held to have no evidentiary value, and the presumptions under Sections 35 and 54 were held to arise only after the foundational facts are proved beyond reasonable doubt (paras 54-60, 61-68). Interrogation notes of co-accused are likewise inadmissible under Section 25 (Mohammed Khalid v. State of Telangana, 2024 INSC 158, paras 22-23).
How the statement was taken. In Firdoskhan, deferring a formal arrest on paper in order to record a Section 67 statement cast grave doubt on that statement (para 25).
Section 53A disclosures. Statements of independent witnesses who were not examined at trial are inadmissible where the conditions of Section 53A are not proved (Bothilal, paras 13-14).
Cases resting only on confessions. In Sanjana Bhaskaran v. State of Telangana (Criminal Appeal No. 4877 of 2026), nothing was recovered from the appellant or her bag, the case rested on confessions that could not be relied on, and the Supreme Court quashed her prosecution (paras 3, 6, 7-9).
At the Bail Stage
Tofan Singh changed how courts read the material at the bail stage, but it did not make bail automatic. In Union of India v. Md. Nawaz Khan (2021 INSC 526), the Supreme Court accepted that a confessional Section 67 statement is inadmissible (paras 8, 26), yet cancelled bail because the High Court had ignored the circumstances linking the accused to contraband concealed in the vehicle (paras 25, 31-32).
In State (NCB) v. Pallulabid Ahmad Arimutta (2022 INSC 26), the Court refused to cancel bail where the prosecution's case at the time of arrest rested on Section 67 statements of the accused or co-accused, since they are inadmissible at trial (para 10). But an accused found in conscious possession of commercial quantity could not claim parity with co-accused, because Section 37 applies (para 11).
NCB v. Mohit Aggarwal ((2022) 18 SCC 374) held that even with Section 67 confessions excluded, disclosures leading to recovery and call detail records still weighed against bail (paras 16-17). The Rajasthan High Court applied the same reasoning in State of Rajasthan v. Shyam Sundar Mundara (2023/RJJP/012438): Tofan Singh does not assist an accused where the prosecution relies on circumstantial evidence beyond Section 67 statements (paras 20-22).
The statements can also matter to whether Section 37 applies at all. In Ragini Dwivedi v. State of Karnataka (2021 INSC 38), no drugs were recovered and the case rested on another person's statement showing at most consumption; only Section 27 was attracted, Section 37 could not be invoked and bail followed (paras 6-8). For the twin conditions themselves, see our guide to Section 37 of the NDPS Act.
Framing of Charge and Quashing
Charge. In Bheru Lal v. Union of India (2026:RJ-JD:47203), the Rajasthan High Court held that, after Tofan Singh, Section 67 statements of co-accused cannot be used as confessions to sustain a charge, and that a vague allegation of "cooperation" without any overt act does not make out abetment or conspiracy under Section 29. The accused was discharged (paras 5, 8-10, 12, 22).
Quashing. Inadmissibility is not, by itself, a ground to end a prosecution. In State of Karnataka v. Sadiq Pasha (2026 INSC 1083), the Supreme Court set aside a High Court order quashing an NDPS case. A Section 67 confession or a Section 53A disclosure cannot prove guilt at trial, but it is material for gathering further evidence, and whether other evidence exists is to be tested at cognizance or on a discharge application, not by quashing (paras 12-14).
Related Rules on Statements and Confessions
Section 27 discoveries. Only the part of a custodial statement that is the direct and immediate cause of a discovery is provable; the rest must be excised (Mohmed Inayatullah v. State of Maharashtra, (1976) 1 SCC 828, paras 12-13). A custodial statement that leads to no fresh discovery, because the police already knew the place, is barred by Sections 25 and 26 and not saved by Section 27; an officer's account of what a person held in another case told him about the accused is hearsay (Manohar Lal v. State of Rajasthan, 2025:RJ-JD:33642, paras 6.2, 6.5, 6.7).
Confessions of co-accused under Section 30. A co-accused's confession is not substantive evidence; the court must first find the other evidence sufficient and may then use the confession only to lend assurance (Hari Charan Kurmi v. State of Bihar, AIR 1964 SC 1184, paras 12-14). In a customs case decided long before Tofan Singh, Haroon Haji Abdulla v. State of Maharashtra (AIR 1968 SC 832) held that such a confession, especially if retracted, is weak evidence and can lend assurance to accomplice testimony only when close scrutiny excludes false implication (paras 9-11).
Retracted confessions. A retracted confession may found a conviction, but corroboration is a rule of prudence (Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094, para 6). It needs general corroboration that fits its broad trend, and one that contradicts the medical evidence cannot alone sustain a conviction (Parmananda Pegu v. State of Assam, (2004) 7 SCC 779, paras 20-23, 28). In Aloke Nath Dutta v. State of West Bengal (2006 (13) SCALE 467), the Court held that no conviction can rest on an uncorroborated retracted confession and that courts must probe the reasons for the retraction (paras 101, 105, 107).
Statements in police custody presented as something else. An admission made to witnesses while the accused was in police custody for a recovery is not an extra-judicial confession (Vinod Kumar v. State of Rajasthan, 2024:RJ-JD:11941-DB, paras 86, 90-91). An extra-judicial confession made while the accused is in physical police custody is inadmissible, even if the formal arrest is shown later (State of Himachal Pradesh v. Sulender, 2026 INSC 1077, para 11).
Statements that are not confessions. A consent statement for a search, not used as a confession, is not barred by Section 25 (Jarnail Singh v. State of Punjab, (2011) 3 SCC 521, para 13).
Outside the trial. A police confession without independent supporting material cannot by itself ground preventive detention (Mulla Afroz v. Union of India, 2026 INSC 1067, paras 36, 39).
Key Points
- Officers with Section 53 powers are police officers under Section 25 of the Evidence Act, and a Section 67 statement cannot be used as a confession at an NDPS trial (Tofan Singh, para 155).
- A conviction resting only on Section 67 statements of the accused or a co-accused cannot stand, but independently proved possession can still sustain a conviction (Balwinder Singh, paras 10, 12, 19).
- At the bail stage, Section 67 statements alone cannot justify cancelling bail (Pallulabid, para 10), but other material, such as recoveries and call records, can still defeat bail under Section 37 (Mohit Aggarwal, paras 16-17).
- Co-accused's Section 67 statements cannot sustain a charge (Bheru Lal, paras 9-10, 12), but inadmissibility alone is no ground to quash a pending case; the question belongs to cognizance or discharge (Sadiq Pasha, paras 12-14).
- Section 27 still admits the part of a statement that distinctly led to a discovery, and nothing more (Mohmed Inayatullah, para 12).
All the judgments cited here are on NyayVidhan with their summaries and source links. More rulings on the provision are collected on the Section 67 NDPS Act page.
