Tofan Singh: NDPS Confessions Under Section 67 Inadmissible

Tofan Singh: NDPS Officers Are Police Officers, Section 67 Statements Cannot Be Used as Confessions

By a 2:1 majority, the Supreme Court held that officers invested with powers under Section 53 of the NDPS Act are "police officers" under Section 25 of the Evidence Act, so confessions made to them cannot be used to convict. A statement recorded under Section 67 cannot be used as a confession at trial. Raj Kumar Karwal and Kanhaiyalal were overruled (paras 153, 155).

Key holdings

Officers invested with powers under Section 53 of the NDPS Act are police officers for Section 25 of the Evidence Act (para 155).

A statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement at trial (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 correct in law (paras 153-154).

Brief Facts

A Division Bench hearing Tofan Singh's appeal against his NDPS conviction, which he said rested solely on a statement recorded under Section 67, referred two questions to a larger Bench (paras 1-2). First, is an officer investigating under the NDPS Act a "police officer", so that a confession to him is barred by Section 25 of the Evidence Act? Second, can a Section 67 statement be treated as a confession (para 2)? The reference questioned Raj Kumar Karwal and Kanhaiyalal, which had held such officers were not police officers (para 2). The Union argued that a Section 67 confession, if voluntary and truthful, could support a conviction (para 10).

Court's Findings

Writing for the majority, Nariman J. held that Section 67 only lets a Section 42 officer call for information in a preliminary enquiry; examining a person under it cannot be equated with a statement recorded in investigation (paras 59-65). Treating such statements as confessions would bypass the safeguards of Sections 160-164 CrPC and Articles 20(3) and 21, and would make Section 53A otiose (paras 66, 72). Drawing on Barkat Ram and Raja Ram Jaiswal, the test is whether the officer has full powers of investigation culminating in a police report (paras 105, 126). A Section 53 officer has the powers of an officer in charge of a police station and files that report before the Special Court under Section 36A(1)(d) (paras 134-137). Unlike TADA and POTA, the NDPS Act has no non obstante clause or safeguards for confessions, so using them would infringe Articles 14, 20(3) and 21 (paras 148-152). Dissenting, Indira Banerjee J. held that three Constitution Bench rulings bound the Bench and Raj Kumar Karwal needed no reconsideration (paras 268, 271).

Legal Principle

An officer who holds the full powers of an officer in charge of a police station to investigate offences, culminating in a police report, is a police officer for Section 25 of the Evidence Act. Confessions made to NDPS officers under Section 53, or recorded under Section 67, cannot ground a conviction.

Precedents Relied Upon

Raj Kumar Karwal v. Union of India (1990) 2 SCC 409
Overruled Discussed at ¶ 128-133, 137-143, 153
Held that an officer designated under Section 53 of the NDPS Act is not a police officer under Section 25 of the Evidence Act; overruled as not stating the law correctly.
Kanhaiyalal v. Union of India (2008) 4 SCC 668
Overruled Discussed at ¶ 147, 153
Concerned a conviction based on a confessional statement made under Section 67 of the NDPS Act and followed Raj Kumar Karwal; overruled.
Noor Aga v. State of Punjab (2008) 16 SCC 417
Relied Upon Discussed at ¶ 2, 154
Held correct in law by the majority (para 154).

View all precedents (16)

Nirmal Singh Pehlwan v. Inspector, Customs (2011) 12 SCC 298
Relied Upon Discussed at ¶ 154
Held correct in law by the majority (para 154).
State of Punjab v. Barkat Ram (1962) 3 SCR 338
Relied Upon Discussed at ¶ 87-96, 126
The expression "police officer" in Section 25 of the Evidence Act is to be read in a wide and popular sense, not confined to officers of the police force.
Raja Ram Jaiswal v. State of Bihar (1964) 2 SCR 752
Relied Upon Discussed at ¶ 97-105, 127
An officer is a police officer under Section 25 where his powers tend to facilitate obtaining a confession, as when he is given a power of investigation culminating in a police report.
Badku Joti Savant v. State of Mysore (1966) 3 SCR 698
Explained Discussed at ¶ 106-110, 126
A Central Excise officer, lacking power to submit a charge-sheet, is not a police officer; explained by the majority as a case of limited powers under a revenue statute.
Romesh Chandra Mehta v. State of West Bengal (1969) 2 SCR 461
Explained Discussed at ¶ 111-112, 126
A customs officer is not a police officer under Section 25 of the Evidence Act; explained by the majority as a revenue-statute case.
Illias v. Collector of Customs, Madras (1969) 2 SCR 613
Explained Discussed at ¶ 113-114, 126
Customs officers under the Customs Act, 1962 are not police officers; no conflict between Raja Ram Jaiswal and Barkat Ram.
Mukesh Singh v. State (Narcotic Branch of Delhi) 2020 SCC OnLine SC 700
Distinguished Discussed at ¶ 73-85
The Constitution Bench considered whether the complainant and investigator could be the same person; it did not address Section 53A or the questions referred.
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
Relied Upon Discussed at ¶ 25
The right to privacy is grounded in Article 21 of the Constitution.
Selvi v. State of Karnataka (2010) 7 SCC 263
Relied Upon Discussed at ¶ 24
Relied on for the scope of Article 20(3) and the protection against compelled testimony.
Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424
Relied Upon Discussed at ¶ 20-22
Relied on for the interplay between Article 20(3) and Section 161 CrPC.
Kartar Singh v. State of Punjab (1994) 3 SCC 569
Referred To Discussed at ¶ 150
Additional safeguards for confessions recorded by police officers under TADA.
State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600
Referred To Discussed at ¶ 151
Procedural safeguards for confessions recorded under POTA.
Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31
Referred To Discussed at ¶ 1-2
The Division Bench order referring the two questions to a larger Bench.

Tofan Singh: NDPS Officers Are Police Officers, Section 67 Statements Cannot Be Used as Confessions

Judgment Intelligence

Key holdings

Brief Facts

Court's Findings

Legal Principle

Precedents Relied Upon

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