Questions and answers on law (Part 82)

Q 1:-   Whether statement recorded by officers under section 53 of ndps act are admissible? explain ratio of SC in the case of Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1

Ans:- Section 53 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, authorizes the Central and State Governments to grant officers from various departments, including Central Excise, Narcotics, Customs, and Revenue Intelligence, the authority of an officer in charge of a police station for investigating offences under the Act. 

Under Section 53:

• The Central Government (in consultation with State governments) or the State Government can notify specific officers to investigate offences under the Act.
• These officers have the power to investigate, arrest, and conduct searches.
• The Supreme Court has ruled that officers designated under Section 53 are considered "police officers" for the purpose of Section 25 of the Evidence Act
  .
Consequently, confessional statements made to these officers, often under Section 67 of the NDPS Act, are generally inadmissible in court.
The provision aims to equip specialized agencies to effectively investigate drug crimes. 

Related provisions include:

• Section 53A of NDPS Act: Pertains to the admissibility of certain statements made before an empowered officer.
• Section 67 of NDPS Act: Grants powers to request information, documents, and examine individuals.
• Section 52A of NDPS Act : Outlines the process for disposing of seized drugs and substances. 

Section 67 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, empowers authorized officers to call for information, examine individuals, and require the production of documents during an inquiry into drug-related offenses. 

While it is a crucial investigative tool, the Supreme Court has significantly narrowed its application regarding the admissibility of statements made under this section. 

1. Key Provisions of Section 67

Authorized officers (under Section 42) can:

• Call for information: Request information from any person to check for violations of the Act.
Produce documents: Require any person to deliver documents or items relevant to the inquiry.
Examine persons: Question any person acquainted with the facts of the case. 

2. Legal Status and Admissibility (Tofan Singh v. State of Tamil Nadu)

The most crucial development regarding Section 67 is the landmark judgment in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, which re-interpreted the evidentiary value of statements recorded under this section. 

• Not a Police Officer: The Supreme Court held that officers empowered under Section 42 and 53 of the NDPS Act are considered "police officers".
• Inadmissible Confessions: As a result, any confessional statement made to these officers under Section 67 is hit by Section 25 of the Evidence Act and is inadmissible in the trial of an offense under the NDPS Act.
• Sole Basis for Conviction: A statement recorded under Section 67 cannot be the sole basis for conviction; it requires strong independent, corroborative evidence. 

3. Scope of "Enquiry" vs. "Investigation"

• Section 67 is intended for an enquiry to establish "reason to believe" that an offense has been committed, not for a formal investigation.
• It is considered as an antecedent stage to an investigation. 

4. Important Judicial Trends

• Retracted Statements: If a statement under Section 67 of Ndps Act is retracted, it can only be considered if the court is satisfied it was made voluntarily and is supported by other evidence.
• Co-accused Confessions: A statement made under Section 67 of Ndps Act by a co-accused cannot be used as substantive evidence against another accused.
• Recent Rulings: Courts have frequently quashed proceedings or acquitted accused individuals when the prosecution's case relied heavily on statements recorded under Section 67 without supporting evidence. 
• Yes, the Supreme Court in Toofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 confirmed that Section 25 of the Evidence Act applies regardless of whether the person was formally an "accused" at the moment of making a confession to a police officer. The bar is not avoided merely by recording the statement at an "enquiry" stage under Section 67 of the NDPS Act. 
  Key clarifications regarding the "accused" status in Toofan Singh and related jurisprudence include:
  • Subsequent Status: The phrase "person accused of an offence" in Section 25 of the Evidence Act is considered descriptive of the person's subsequent status, meaning they do not need to be formally accused at the exact time the statement is made.
  • Enquiry Stage Applicability: Statements recorded during an "enquiry" or investigation under Section 67 of the NDPS Act are considered hit by Section 25, as officers empowered under Section 53 of the NDPS Act are treated as "police officers".
  •  Overruling Previous Views: The decision overruled earlier judgments (Raj Kumar Karwal, Kanhaiyalal) that allowed such statements, clarifying that these officers cannot record confessions admissible as substantive evidence. 
  Toofan Singh established that confessions to NDPS officers (who are considered police officers for this purpose) are inadmissible, ensuring protection against self-incrimination (Article 20(3)) and the right to privacy (Article 21). 

Print Page