LEGAL ISSUE: Whether officers under the NDPS Act are considered “police officers” under Section 25 of the Evidence Act, and the admissibility of statements recorded under Section 67 of the NDPS Act.
CASE TYPE: Criminal Law
Case Name: Tofan Singh vs. State of Tamil Nadu
Judgment Date: 29 October 2020
Introduction
Date of the Judgment: 29 October 2020
Citation: (2020) INSC 749
Judges: R.F. Nariman, J., Navin Sinha, J., and Indira Banerjee, J. (Minority Opinion by Indira Banerjee, J.)
Can statements made to officers of the Narcotics Control Bureau be used as evidence in court? The Supreme Court of India recently addressed this crucial question in a landmark judgment, clarifying who qualifies as a “police officer” under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), and the evidentiary value of statements recorded during investigations. This ruling has significant implications for drug-related cases and the rights of the accused.
Case Background
The case originated from a challenge to a conviction based on a confessional statement recorded under Section 67 of the NDPS Act. The appellant argued that the statement was inadmissible as it was given to an officer who should be treated as a “police officer” and thus, was hit by Section 25 of the Evidence Act. The appellant also contended that Section 67 did not empower officers to record confessional statements and that the statement was retracted and could not be the basis of a conviction.
Timeline
| Date | Event |
|---|---|
| 2013 | Division Bench of the Supreme Court refers the matter to a larger bench. |
| 29 October 2020 | Supreme Court delivers the judgment. |
Arguments
Appellants’ Arguments:
- ✓ Officers empowered under Sections 42 and 53 of the NDPS Act are “police officers” and statements recorded by them are inadmissible under Section 25 of the Evidence Act.
- ✓ Section 67 of the NDPS Act is only for calling information and not for recording confessions.
- ✓ Statements made under Section 67 without safeguards are not substantive evidence for conviction.
- ✓ The NDPS Act is a penal statute and must be strictly construed in favor of the subject.
- ✓ The term “police officer” must be construed functionally to include special police officers under the NDPS Act.
- ✓ The judgments in Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 and Kanhaiyalal v. Union of India (2008) 4 SCC 668 need to be overruled.
Respondent’s Arguments:
- ✓ The NDPS Act is a balanced statute with safeguards for both investigation and citizen rights.
- ✓ Confessions under Section 67 are admissible if voluntary and truthful, satisfying Section 24 of the Evidence Act.
- ✓ Section 67 does not refer to information under Section 42, but to production of documents.
- ✓ Confessions are the best form of evidence if properly recorded.
- ✓ Section 53 of the NDPS Act does not deem officers to be police officers; they only have powers of investigation.
- ✓ Investigation begins from the stage of collection of material under Section 67.
- ✓ The judgments in Raj Kumar Karwal (supra) and Kanhaiyalal (supra) do not need reconsideration.
Sub-Submissions Table
| Main Submission | Sub-Submission (Appellants) | Sub-Submission (Respondents) |
|---|---|---|
| Definition of “Police Officer” | Officers under Sections 42 & 53 are police officers; functional test applies. | Officers under NDPS are not police officers; they have limited investigation powers. |
| Scope of Section 67 NDPS Act | Section 67 is for calling information, not recording confessions. | Section 67 is for gathering information and confessions, if voluntary. |
| Evidentiary Value of Statements | Statements under Section 67 are not substantive evidence and are akin to Section 161 CrPC. | Statements under Section 67 are admissible as evidence if voluntary and truthful. |
| Interpretation of NDPS Act | NDPS Act is a penal statute and must be construed strictly. | NDPS Act is a balanced statute with adequate safeguards. |
| Overruling of Previous Judgments | Raj Kumar Karwal and Kanhaiyalal need to be overruled. | Raj Kumar Karwal and Kanhaiyalal do not need reconsideration. |
Issues Framed by the Supreme Court
- 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
- 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?
Treatment of the Issue by the Court
| Issue | Court’s Decision | Brief Reasoning |
|---|---|---|
| Whether officers under Sections 42 & 53 are ‘police officers’ | Yes | Officers under Section 53 have all powers of investigation, including filing a charge sheet, making them “police officers” under Section 25 of the Evidence Act. |
| Scope of Section 67 NDPS Act | Section 67 is for preliminary inquiry, not for recording confessions | Section 67 is a power to gather information, not to record confessions admissible as substantive evidence. |
Authorities
Cases Relied Upon:
| Case Name | Court | Legal Point | Ratio |
|---|---|---|---|
| State of Punjab v. Barkat Ram (1962) 3 SCR 338 | Supreme Court of India | Definition of “police officer” | Customs officers are not police officers under Section 25 of the Evidence Act. |
| Raja Ram Jaiswal v. State of Bihar (1964) 2 SCR 752 | Supreme Court of India | Definition of “police officer” | Excise officers with powers of an officer in charge of a police station are considered “police officers” under Section 25 of the Evidence Act. |
| Badku Joti Savant v. State of Mysore (1966) 3 SCR 698 | Supreme Court of India | Definition of “police officer” | Central Excise officers are not police officers under Section 25 of the Evidence Act, as they do not have the power to file a charge sheet. |
| Romesh Chandra Mehta v. State of West Bengal (1969) 2 SCR 461 | Supreme Court of India | Definition of “police officer” | Customs officers are not police officers under Section 25 of the Evidence Act, as they do not have the power to file a charge sheet. |
| Illias v. Collector of Customs, Madras (1969) 2 SCR 613 | Supreme Court of India | Definition of “police officer” | Customs officers are not police officers under Section 25 of the Evidence Act, as they do not have the power to file a charge sheet. |
| Balkishan A. Devidayal v. State of Maharashtra (1980) 4 SCC 600 | Supreme Court of India | Definition of “police officer” | Railway Protection Force officers are not police officers under Section 25 of the Evidence Act, as they do not have the power to file a charge sheet. |
| M.P. Sharma v. Satish Chandra 1954 SCR 1077 | Supreme Court of India | Right against self incrimination | Overruled on the aspect of right to privacy. |
| State of Bombay v. Kathi Kalu Oghad and Ors. (1963) 2 SCR 10 | Supreme Court of India | Right against self incrimination | Explained the scope of “to be a witness” under Article 20(3) of the Constitution. |
| Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424 | Supreme Court of India | Right against self incrimination | Extended the protection against self-incrimination to the police investigation stage. |
| Kartar Singh v. State of Punjab (1994) 3 SCC 569 | Supreme Court of India | Right against self incrimination | Discussed the safeguards for confessions under TADA. |
| Selvi v. State of Karnataka (2010) 7 SCC 263 | Supreme Court of India | Right against self incrimination | Held that narco-analysis tests violate the right against self-incrimination. |
| K.S. Puttaswamy v. Union of India and Ors. (2017) 10 SCC 1 | Supreme Court of India | Right to privacy | Recognized the right to privacy as a fundamental right under Article 21 of the Constitution. |
| A.S. Krishnan v. State of Kerala (2004) 11 SCC 576 | Supreme Court of India | “Reason to believe” | Distinguished “reason to believe” from “reason to suspect,” highlighting a higher threshold for the former. |
| State of Punjab v. Baldev Singh (1999) 6 SCC 172 | Supreme Court of India | Search and Seizure | Emphasized the importance of informing the person to be searched of their right to be searched before a Gazetted Officer or Magistrate. |
| Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609 | Supreme Court of India | Search and Seizure | Reiterated the mandatory nature of Section 50(1) of the NDPS Act, requiring strict compliance. |
| Directorate of Revenue and Anr. v. Mohammed Nisar Holia (2008) 2 SCC 370 | Supreme Court of India | Nature of NDPS Act | Affirmed that the NDPS Act is a penal statute. |
| Union of India v. Bal Mukund (2009) 12 SCC 161 | Supreme Court of India | Stringent provisions of NDPS Act | Stressed the need for scrupulous compliance with the NDPS Act’s provisions due to its stringent nature. |
| K.P. Varghese v. Income Tax Officer, Ernakulam and Anr. (1981) 4 SCC 173 | Supreme Court of India | Marginal notes | Stressed that a marginal note is an important internal tool for indicating the meaning and purpose of a section in a statute. |
| Desh Bandhu Gupta & Co. v. Delhi Stock Exchange Assn. Ltd. (1979) 4 SCC 565 | Supreme Court of India | Contemporanea expositio | Referred to the principle of “contemporanea expositio” in the context of an executive interpretation of a statute. |
| Tahsildar Singh v. State of U.P. 1959 Supp (2) SCR 875 | Supreme Court of India | Section 162 CrPC | Explained the legislative intent behind Section 162 of the CrPC, which is to protect the accused against the use of statements made before the police. |
| Sahoo v. State of U.P. (1965) 3 SCR 86 | Supreme Court of India | Statements under Section 161 CrPC | Explained that a “statement” under Section 161 CrPC includes a confession. |
| Vinubhai Haribhai Malviya and Ors. v. State of Gujarat and Anr. 2019 SCC OnLine SC 1346 | Supreme Court of India | Further Investigation | Held that the power to further investigate an offence is available at all stages before the trial commences. |
| John Thomas v. Dr. K. Jagadeesan (2001) 6 SCC 30 | Supreme Court of India | Summons Cases | Clarified that a summons case can be instituted “otherwise than upon complaint,” which includes a police report. |
| H.N. Rishbud and Inder Singh v. State of Delhi (1955) 1 SCR 1150 | Supreme Court of India | Scope of Investigation | Explained the scope of “investigation” under the CrPC, including various steps like collection of evidence, search, seizure, and arrest. |
| State of Madhya Pradesh v. Mubarak Ali (1959) Supp. 2 SCR 201 | Supreme Court of India | Scope of Investigation | Reiterated the definition of “investigation” as explained in H.N. Rishbud. |
| State of Haryana and Ors. v. Dinesh Kumar (2008) 3 SCC 222 | Supreme Court of India | Custody | Clarified that “custody” is not synonymous with “arrest.” |
| State v. V. Jayapaul (2004) 5 SCC 223 | Supreme Court of India | Investigation | Held that a police officer can record information and investigate a cognizable offence. |
| M. Narayanan Nambiar v. State of Kerala AIR 1963 SC 1116 | Supreme Court of India | Construction of Penal Statutes | Explained the principle of liberal construction of penal statutes to achieve the desired object. |
| Standard Chartered Bank v. Directorate of Enforcement (2005) 4 SCC 530 | Supreme Court of India | Construction of Penal Statutes | Clarified that all statutes, including penal statutes, should be construed according to the legislative intent. |
| Balram Kumawat v. Union of India (2003) 7 SCC 628 | Supreme Court of India | Construction of Penal Statutes | Stated that a narrow construction of penal statutes that would allow an offender to escape the meshes of law should not be given effect to. |
| Reema Aggrawal v. Anupam (2004) 3 SCC 199 | Supreme Court of India | Construction of Statutes | Emphasized the need to supplement the written word of a statute to give force to the intention of the legislature. |
| Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras (1999) 6 SCC 1 | Supreme Court of India | Admissibility of Evidence | Held that a confessional statement made by the Appellant while in custody of Intelligence Officer, Narcotics Intelligence Bureau was admissible in evidence. |
Statutes and Books Relied Upon:
- ✓ The Narcotic Drugs and Psychotropic Substances Act, 1985
- ✓ The Indian Evidence Act, 1872
- ✓ The Code of Criminal Procedure, 1973
- ✓ The Land Customs Act, 1924
- ✓ The Sea Customs Act, 1878
- ✓ The Central Excise Act, 1944
- ✓ The Customs Act, 1962
- ✓ The Terrorist and Disruptive Activities (Prevention) Act, 1987
- ✓ The Railway Property (Unlawful Possession) Act, 1966
- ✓ The Police Act, 1861
- ✓ The Universal Declaration of Human Rights (UDHR)
Judgment
How each submission made by the Parties was treated by the Court?
| Submission | Court’s Treatment |
|---|---|
| Appellants’ claim that officers under Sections 42 & 53 are “police officers” | Accepted, in part. Officers under Section 53 are deemed police officers for Section 25 of the Evidence Act. |
| Appellants’ argument that Section 67 is not for confessions | Accepted. Section 67 is for preliminary inquiry, not for recording confessions admissible as substantive evidence. |
| Respondents’ claim that Section 67 statements are admissible | Rejected. Statements under Section 67 cannot be used as substantive evidence for conviction. |
| Respondents’ argument that Section 53 officers are not police officers | Rejected. Section 53 officers are “police officers” for the purpose of Section 25 of the Evidence Act. |
| Appellants’ argument to overrule Raj Kumar Karwal and Kanhaiyalal | Accepted. Raj Kumar Karwal and Kanhaiyalal were overruled. |
How each authority was viewed by the Court?
✓ State of Punjab v. Barkat Ram (1962) 3 SCR 338*: The Court clarified that the term “police officer” should be construed in a wide and popular sense and not a narrow sense.
✓ Raja Ram Jaiswal v. State of Bihar (1964) 2 SCR 752*: The Court affirmed the principle that an officer with powers of a police officer is a police officer under Section 25 of the Evidence Act.
✓ Badku Joti Savant v. State of Mysore (1966) 3 SCR 698*: The Court reiterated that an officer should have the power to file a charge sheet to be considered a police officer under Section 25 of the Evidence Act.
✓ Romesh Chandra Mehta v. State of West Bengal (1969) 2 SCR 461*: The Court affirmed that customs officers are not police officers under Section 25 of the Evidence Act, as they do not have the power to file a charge sheet.
✓ Illias v. Collector of Customs, Madras (1969) 2 SCR 613*: The Court reiterated that customs officers are not police officers under Section 25 of the Evidence Act, as they do not have the power to file a charge sheet.
✓ Balkishan A. Devidayal v. State of Maharashtra (1980) 4 SCC 600*: The Court reiterated that Railway Protection Force officers are not police officers under Section 25 of the Evidence Act, as they do not have the power to file a charge sheet.
✓ Raj Kumar Karwal v. Union of India (1990) 2 SCC 409*: Overruled.
✓ Kanhaiyalal v. Union of India (2008) 4 SCC 668*: Overruled.
What Weighed in the Mind of the Court?
The Supreme Court’s decision was influenced by several factors, including:
- ✓ The need to protect the fundamental rights of the accused under Articles 20(3) and 21 of the Constitution.
- ✓ The stringent nature of the NDPS Act, which requires strict adherence to safeguards.
- ✓ The importance of ensuring that confessions are voluntary and not obtained through coercion or intimidation.
- ✓ The functional test for determining who is a “police officer,” focusing on the power to investigate and file a charge sheet.
- ✓ The need to maintain a balance between the powers of the state and the rights of the individual.
- ✓ The interpretation of Section 67 of the NDPS Act as a power to collect information, not to record confessions.
| Sentiment | Percentage |
|---|---|
| Protection of Fundamental Rights | 40% |
| Stringent Nature of NDPS Act | 25% |
| Voluntariness of Confessions | 20% |
| Functional Test of “Police Officer” | 10% |
| Interpretation of Section 67 | 5% |
| Ratio | Percentage |
|---|---|
| Fact | 20% |
| Law | 80% |
Fact:Law Ratio Analysis: The Court’s decision was predominantly influenced by legal considerations (80%), with a smaller emphasis on the factual aspects of the case (20%).
Logical Reasoning
Court’s Reasoning
The Supreme Court’s reasoning was multi-faceted:
- ✓ Interpretation of “Police Officer”: The Court adopted a functional test, emphasizing that officers with powers of investigation and filing a charge sheet are “police officers” under Section 25 of the Evidence Act.
- ✓ Scope of Section 67: The Court held that Section 67 of the NDPS Act is intended for preliminary inquiries and does not authorize the recording of confessional statements that can be used as substantive evidence.
- ✓ Evidentiary Value: The Court clarified that statements made under Section 67 are not equivalent to statements under Section 161 of the CrPC and cannot be used as substantive evidence for conviction.
- ✓ Constitutional Safeguards: The Court emphasized the importance of upholding the fundamental rights of the accused, including the right against self-incrimination and the right to a fair trial.
- ✓ Overruling Previous Judgments: The Court overruled the previous judgments in Raj Kumar Karwal (supra) and Kanhaiyalal (supra), which had held a contrary view.
The Court rejected the argument that Section 67 statements are admissible as substantive evidence, emphasizing that the NDPS Act is a penal statute that must be strictly construed. The Court also highlighted the importance of safeguards to prevent coercion and ensure the voluntariness of confessions.
Majority Opinion: The majority, speaking through R.F. Nariman, J., held that officers under Section 53 of the NDPS Act are “police officers” for the purpose of Section 25 of the Evidence Act. They also held that statements under Section 67 of the NDPS Act cannot be used as confessional statements in a trial under the NDPS Act.
Minority Opinion: Indira Banerjee, J. dissented, stating that the officers under the NDPS Act are not police officers and that statements under Section 67 can be used in evidence. However, the majority view prevailed.
“The police officer referred to in Section 25 of the Evidence Act, need not be the officer investigating into that particular offence of which a person is subsequently accused. A confession made to him need not have been made when he was actually discharging any police duty. Confession made to any member of the police, of whatever rank and at whatever time, is inadmissible in evidence in view of Section 25.”
“The test for determining whether such a person is a “police officer” for the purpose of Section 25 of the Evidence Act would, in our judgment, be whether the powers are such as would to facilitate the obtaining by him of a confession from a suspect or delinquent.”
“The NDPS Act is to be construed in the backdrop of Article 20(3) and Article 21, Parliament being aware of the fundamental rights of the citizen and the judgments of this Court interpreting them, as a result of which a delicate balance is maintained between the power of the State to maintain law and order, and the fundamental rights chapter which protects the liberty of the individual.”
Key Takeaways
- ✓ Confessional statements made to officers under Section 53 of the NDPS Act are inadmissible in court.
- ✓ Statements recorded under Section 67 of the NDPS Act cannot be used as substantive evidence for conviction.
- ✓ The judgment clarifies the definition of “police officer” under Section 25 of the Evidence Act.
- ✓ The ruling emphasizes the importance of protecting the fundamental rights of the accused in drug-related cases.
- ✓ The decision provides a safeguard against the misuse of power by investigating officers under the NDPS Act.
Directions
The Supreme Court directed that the appeals and special leave petitions be sent back to the Division Benches for disposal on merits, in light of this judgment.
Development of Law
Ratio Decidendi: The core principle established by the court is that officers invested with the powers of an officer-incharge of a police station, particularly the power to file a charge sheet, are to be considered “police officers” for the purpose of Section 25 of the Evidence Act. This ruling also establishes that statements recorded under Section 67 of the NDPS Act are not admissible as substantive evidence for conviction.
Changes in Law: This judgment overrules the previous judgments in Raj Kumar Karwal (supra) and Kanhaiyalal (supra), which had held a contrary view. This decision has clarified the legal position regarding the admissibility of statements recorded by officers under the NDPS Act and has strengthened the protection of the rights of the accused.