Tofan Singh v. State of Tamil Nadu

Supreme Court of India · 29 October 2020 · 3 judges

By majority, officers invested with powers under Section 53 of the NDPS Act are police officers for Section 25 of the Evidence Act, and a statement recorded under Section 67 cannot be used as a confession at trial.

Facts

The matters came on a reference by a Division Bench in Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31. The appellant in Criminal Appeal No. 152 of 2013 challenged his conviction under the NDPS Act mainly on the ground that it rested solely on a confessional statement recorded under Section 67 of the Act. He argued that the officer recording it was a police officer, so the statement was hit by Section 25 of the Evidence Act; that Section 67 permits only calling for information, not recording confessions; and that the statement had been retracted. The Division Bench referred to a larger Bench whether an officer investigating under the NDPS Act is a police officer, and whether a Section 67 statement can be treated as a confession, which required reconsidering Raj Kumar Karwal v. Union of India and Kanhaiyalal v. Union of India.

Questions before the Court

Whether officers empowered under Sections 42 and 53 of the NDPS Act are police officers, so that confessions made to them are barred by Section 25 of the Evidence Act.
What is the nature and scope of the power under Section 67 of the NDPS Act, and whether a statement recorded under it can be used as a confession at trial.

What the Court held

Section 67 lets a Section 42 officer call for information in an enquiry to satisfy himself that there is reason to believe an offence was committed, at a stage before investigation. A statement recorded under Section 67 cannot be used as a confessional statement in the trial of an offence under the NDPS Act.
Following Barkat Ram and Raja Ram Jaiswal, a person who is not a police officer properly so called but is invested with all powers of investigation culminating in a police report is a police officer under Section 25 of the Evidence Act.
An officer invested under Section 53 with the powers of an officer in charge of a police station must forward a police report under Section 173(2) CrPC, which goes to the Special Court under Section 36A(1)(d). Such officers are police officers, and confessions made to them are barred by Section 25 of the Evidence Act.
Using a confession made to an officer designated under Section 42 or 53 to convict, without a non obstante clause excluding Section 25 and without safeguards, would directly infringe Articles 14, 20(3) and 21. Treating the accused differently only because of the officer's designation would fail Article 14.
Raj Kumar Karwal and Kanhaiyalal do not state the law correctly and are overruled, as are judgments relying on them. Noor Aga and Nirmal Singh Pehlwan are correct in law. The appeals were sent back to Division Benches for decision on merits.

Why it matters

The majority overrules Raj Kumar Karwal and Kanhaiyalal and holds that confessions made to NDPS officers with Section 53 powers are inadmissible under Section 25 of the Evidence Act. It confines Section 67 to gathering information before investigation, so that a Section 67 statement cannot found a conviction as a confession. It reads the NDPS Act in the light of Articles 14, 20(3) and 21 and approves Noor Aga.

In the Court's words

Copied from the official judgment; each passage links to its page.

“That the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. (ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.”

R.F. Nariman, J.Page 162 of the judgment

“Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.”

R.F. Nariman, J.Page 161 of the judgment

“where a person who is not a police officer properly so-called is invested with all powers of investigation, which culminates in the filing of a police report, such officers can be said to be police officers within the meaning of section 25 of the Evidence Act, as when they prevent and detect crime, they are in a position to extort confessions, and thus are able to achieve their object through a shortcut method of extracting involuntary confessions.”

R.F. Nariman, J.Page 132 of the judgment

“It is clear, therefore, that section 67 is at an antecedent stage to the “investigation”, which occurs after the concerned officer under section 42 has “reason to believe”, upon information gathered in an enquiry made in that behalf, that an offence has been committed.”

R.F. Nariman, J.Page 82 of the judgment

Provisions interpreted

Related judgments

Overrules Raj Kumar Karwal v. Union of India (1990)“The judgment in Kanhaiyalal (supra) then goes on to follow Raj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us.” (page 161)
Overrules Kanhaiyalal v. Union of India (2008)“The judgment in Kanhaiyalal (supra) then goes on to follow Raj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us.” (page 161)
Follows Noor Aga v. State of Punjab (2008)“the judgments of Noor Aga (supra) and Nirmal Singh Pehlwan v. Inspector, Customs (2011) 12 SCC 298 are correct in law” (page 162)
Distinguished in Vijay Madanlal Choudhary v. Union of India (2022)

Case and bench

Parties: Tofan Singh v. State of Tamil Nadu
Case: Criminal Appeal No. 152 of 2013
Decided: 29 October 2020
Bench: R.F. Nariman, Navin Sinha, Indira Banerjee
Opinions: Majority 2:1. Judgment by R.F. Nariman, J. for himself and Navin Sinha, J.; Indira Banerjee, J. dissented.

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