Tofan Singh v. State of Tamil Nadu: Section 67 NDPS statements are not confessions

The question that split the bench

For decades, NDPS prosecutions leaned heavily on statements the accused signed while in the custody of the very officers investigating them. The statutory hook was section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which lets an empowered officer "call for information" and "examine any person acquainted with the facts and circumstances of the case" during an inquiry. In practice, statements recorded under section 67 were routinely tendered as confessions and, in many cases, formed the sole basis of conviction.

That practice rested on Kanhaiyalal v. Union of India (2008) and, before it, Raj Kumar Karwal v. Union of India (1990), which had held that officers under the NDPS Act are not "police officers" and that their section 67 statements are therefore not caught by the confession bar in section 25 of the Evidence Act. A two-judge bench, doubting that line, referred the matter to a larger bench. The reference distilled into two questions: whether an officer empowered under sections 42 or 53 of the NDPS Act is a "police officer" for the purposes of section 25 of the Evidence Act, and whether section 67 authorises the recording of a confession at all.

The reference came before Justices Rohinton Fali Nariman, Navin Sinha and Indira Banerjee. On 29 October 2020, the bench divided 2:1. Justice Nariman, writing for himself and Justice Sinha, answered both questions in the accused's favour. Justice Banerjee dissented.

The majority: section 25 governs, and section 67 is not a confession power

Justice Nariman built the majority holding on the constitutional guarantee against self-incrimination. Section 25 of the Evidence Act renders a confession to a police officer inadmissible precisely because custodial confessions are unreliable and prone to coercion — a protection that dovetails with Article 20(3) of the Constitution. If NDPS officers are police officers, section 25 applies and their custodial statements fall away.

The majority reasoned that officers empowered under section 53 are invested with the powers of an officer in charge of a police station for the purposes of investigation, and that treating their custodial statements as freely usable confessions would hollow out the constitutional protection. To read section 67 as a confession-recording power, without any non obstante clause displacing section 25 and without statutory safeguards, would run directly against Articles 14, 20(3) and 21.

Having laid that foundation, the majority answered the reference in two crisp propositions. Officers invested with powers under section 53 are police officers within the meaning of section 25, so any confessional statement made to them is barred and cannot convict. And a statement recorded under section 67 cannot be used as a confessional statement in the trial.

Kanhaiyalal and Raj Kumar Karwal were, in the majority's words, judgments that "do not state the law correctly, and are thus overruled by us." Every later decision that had relied on them fell with them.

The dissent: NDPS officers lack the defining power of the police

Justice Banerjee dissented on the threshold characterisation. Her reasoning turned on a line of Constitution Bench authority — Badku Joti Savant, Romesh Chandra Mehta and Illias — holding that an officer is a "police officer" under section 25 only if he possesses all the powers of a police officer qua investigation, and in particular the power to file a report under section 173 of the Code of Criminal Procedure.

On her reading, NDPS officers do not clear that bar. The Code does not apply to inquiries under the NDPS Act except to the limited extent the Act itself provides, and the NDPS Act contains no provision for filing a section 173 police report. A bench of three judges, she held, could not revisit the settled proposition laid down by "at least three Constitution Benches." She would have left Raj Kumar Karwal and Kanhaiyalal undisturbed, treating the statutory restrictions on individual liberty as necessary and reasonable in the fight against trafficking.

The disagreement is genuine and worth stating fairly: it is a contest between a formal test keyed to the section 173 power and a purposive reading that looks to the coercive reality of NDPS custody and the constitutional protection against self-incrimination. The majority prevailed, but the dissent frames the fault line on which future arguments about the reach of Tofan Singh will be fought.

What the ruling does and does not do

It is important to be precise about the scope of the holding. Tofan Singh does not render every statement made to an NDPS officer void, and it does not immunise the accused from prosecution. What it holds is narrower and sharper: a section 67 statement cannot operate as a confession and cannot be the basis of conviction. The prosecution remains free to build its case on recoveries, seizures, forensic reports, independent testimony and the statutory presumptions in sections 35 and 54 of the Act. What it can no longer do is convert a custodial statement, signed before the investigating officer, into the load-bearing pillar of the case.

The practical consequence is a re-ordering of NDPS investigation. Where a conviction rested "solely" on a section 67 statement, it cannot stand after Tofan Singh. The Supreme Court has since applied the ruling to set aside long-standing convictions built on that inadmissible foundation, and High Courts have used it to discharge or acquit where the section 67 statement was the only real evidence.

Where it sits in the NDPS map

Tofan Singh is the evidentiary counterpart to a wider re-centring of constitutional protections in NDPS practice. Read alongside the Article 22(1) grounds-of-arrest discipline the Court later carried into NDPS cases, it forms part of a steady insistence that special-statute rigour does not suspend baseline safeguards. The arrest must be communicated in writing; the custodial confession cannot convict.

The same instinct animates the Court's bail jurisprudence. Where Tofan Singh strips away an unreliable evidentiary shortcut, the bail cases strip away conditions and delays that convert process into punishment. Together they describe a Court unwilling to let the gravity of drug offences erode the ordinary architecture of criminal-procedure protection.

For the practitioner, the operative checklist after Tofan Singh is short. Identify whether the officer who recorded the statement was empowered under section 42 or 53. Ask whether the statement is being used as a confession — and if so, exclude it. Then test what remains of the prosecution case once the section 67 statement is set aside. If little remains, the case is one the ruling was written for.

Related on Valkya

• Dr. Rajinder Rajan v. Union of India: Mihir Shah grounds-of-arrest discipline reaches NDPS
• Frank Vitus v. Narcotics Control Bureau: bail conditions and the right to privacy
• Satender Kumar Antil v. CBI: the bail guidelines

Sources

1. Supreme Court of India — Tofan Singh v. State of Tamil Nadu, judgment of 29 October 2020 (official PDF): api.sci.gov.in judgment
2. LiveLaw — "Officers Authorised To Investigate NDPS Cases Are 'Police Officers' And Confessional Statements Made To Them Are Not Admissible: Supreme Court [2:1]": livelaw.in
3. Supreme Court Observer — "Who is a Police Officer?": scobserver.in
4. Bar & Bench — "Officers under Section 53 of NDPS Act are police; statement under Section 67 is confessional statement: Supreme Court in 2:1 judgment": barandbench.com
5. LiveLaw — "NDPS Charges Based On Section 67 Statements Of Accused Unsustainable: Supreme Court Applies 'Tofan Singh' Judgment": livelaw.in