Supreme Court of India
TOFAN SINGHversusSTATE OF TAMIL NADU
- Citation
- 2013 INSC 700
- Decided
- 8 October 2013
- Disposal
- Matter referred to larger bench
- Bench
- A K PATNAIK
Holding
The Court held that the questions of the officer's status as a police officer and the admissibility of a Section 67 statement as a confession must be referred to a larger bench for reconsideration.
Summary
Tofan Singh was convicted under Sections 8(c) r/w 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act for allegedly trafficking 5.250 kg of heroin. The conviction rested primarily on a statement recorded by an investigating officer under Section 67 of the NDPS Act, which the appellant claimed was a confessional statement and therefore inadmissible. The key legal questions were whether an officer exercising powers under the NDPS Act qualifies as a "police officer" for the purposes of Section 25 of the Evidence Act, and whether a statement under Section 67 can be treated as a confessional statement. The Supreme Court examined the scheme of the NDPS Act, the nature of the officer's powers, and the jurisprudence on the definition of police officer, concluding that the issues required clarification by a larger bench. Consequently, the Court referred the matter to a larger bench, suspended the remaining portion of the sentence, and ordered the appellant’s release on bail.
Issues considered
- Whether an officer investigating offences under the NDPS Act qualifies as a police officer within the meaning of Section 25 of the Evidence Act.
- Whether a statement recorded under Section 67 of the NDPS Act is a confessional statement and admissible as substantive evidence.
- Whether Section 67 of the NDPS Act empowers the recording of confessions or substantive evidence.
- Whether procedural non‑compliance with Sections 50, 52(3) and 57 of the NDPS Act vitiates the conviction.
Legislation cited
- Central Excise Acts. 14
- Code of Criminal Procedure, 1973s. 161, s. 164, s. 173, s. 5(2)
- Customs Acts. 108
- Indian Evidence Act, 1872s. 24, s. 25, s. 26, s. 27
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 21(c), s. 29, s. 42, s. 50, s. 52(3), s. 53, s. 57, s. 67, s. 8(c)
- Police Act, 1861
Subjects
NDPS ActSection 67confessional statementpolice officer definitionEvidence Act Section 25procedural compliancelarger bench referralbailconviction
Judgment
[2013] 9 S.C.R. 962
A TOFAN SINGH
v.
STATE OF TAMIL NADU
(Criminal Appeal No. 152 of 2013)
OCTOBER 08, 2013
B
[A.K. PATNAIK AND A.K. SIKRI, JJ.]
NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT, 1985:
c
s. 67 - Power to call for information etc. - Questions: (i)
whether the officer investigating the matter under NDPS Act
would qualify as police officer or not and (ii) whether the
statement recorded by the investigating officer u/s. 67 of the
D Act can be treated as confessional statement or not, even if
the officer is not treated as police officer - Referred to large
Bench - Further, sentence suspended till the disposal of
appeal by the larger Bench - Appellant released on bail.
The appellant, along with others, was convicted uls.
E 8(c) r/w s. 21 (c) and s. 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 and was sentenced
to R1 for 10 years with fine of Rs. 1 lakh under each of
the two counts. His appeal was dismissed by the High
Court.
F
In the instant appeal, it was primarily contended for
the appellant that appellant's conviction was vitiated as
it was based solely on the purported confessional
statement recorded u/s. 67 of the NDPS Act, which did
G not have any evidentiary value. It was submitted that there
was no power in s. 67 of the NDPS Act to either record
confessions or substantive evidence which can form
basis for conviction of the accused; and that in any case,
such a statement was not admissible in evidence as the
H 962
TOFAN SINGH v. STATE OF TAMIL NADU 963
excise official recording the statement was to be treated A
as "police officer" and thus, the evidential value of the
statement recorded before him was hit by the provisions
of s. 25 of the Evidence Act. On the other. hand, on behalf
of the State, it was pointed out that in the case of
Kanhaiyalal', it was categorically held that the officer u/ B
s. 63 was not a police officer.
Referring the matter to larger Bench, the Court
HELD: 1.1 Abdul Rashid and Noor Aga were the
cases under the Customs Act. But the reasons for C
holding custom officer as police officer would have
significant bearing even when the issue is cosidered in
the context of NDPS Act as well. It would be more so
when the schemes and purport of the two enactments are
kept in mind. NDPS Act is purely penal in nature. In D
contradistinction, as far as the Customs Act and the
Central Excise Act are concerned, their dominant object
is to protect revenue of the State and penal provisions
to punish the person found offending those laws are
secondary in nature. [Para 32] [992-C-D] E
Abdul Rashid v. State of Bihar (2001) 9 SCC 578; Raja
Ram Jaiswa/ v. (1964) 2 SCR 752; Noor Aga v. State of
=
Punjab 2008 (10) SCR 379 (2008) 9 SCALE 681 - referred
~. F
1.2 NDPS Act is a complete code relating to Narcotic
Substances, and dealing with the offences and the
procedure to be followed for the detection of the offences
as well as for the prosecution and the punishment of the
accused. The provisions are penal provisions which can, G
in certain cases, deprive a person of his liberty for a
minimum period. of 10 years and can also result in
sentences which can extend upto 20 years or even death
1. Kanhaiyalal v. Union of India 2008 (1) SCR 350. H
964 SUPREME COURT REPORTS (2013) 9 S.C.R.
A sentence under certain circumstances. The provisions,
therefore, have to be strictly construed and the
safeguards provided therein have to be scrupulously and
honestly followed. [Para 33) [992-E-G]
B Baldev Singh (1997) 1 SCC 416; Union of India v. Bal
Mukund 2009 (5) SCR 205 = (2009) 12 SCC 161; Balbir
Singh v. State ofHaryana 1987 (1) SCR 1095=(1987)1 SCC
533 - relied on.
1.3 The cruciartest.to determine is whether an officer
C is a police officer for the purpose of s. 25 of the Evidence
Act viz. the "influence or authority" that an officer is
capable of exercising over a person from whom a
confession is obtained. The term "police officer" has not
been defined under the Code or in the Evidence Act and,
D therefore, the meaning ought to be assessed not by
equating the powers of the officer sought to be equated
with a police officer but from the power he possesses
from the perception of the common public to assess his
capacity to influence, pressure or coercion on persons
E who are searched, detained or arrested. The influence
exercised has to be, assessed from the consequences
that a person is likely to suffer in view of the provisions
of the Act under which he is being booked. It, therefore,
follows that a police officer is one who:-
F (i) is considered to be a police officer in
"common parlance" keeping into focus the
consequences provided under the Act.
(ii) is capable of exercising influence or authority
G over a person from whom a confession is
obtained. [Para 34] (992-H; 993-A-D]
1.4 This Court is of the view that the ratio of
Kanhaiyalal necessitates a re-look, more so, when the
H dicta in Kanhaiyalal has already been doubted in Nirmal
TOFAN SINGH v. STATE OF TAMIL NADU 965
singh Pehalwan. Therefore, the matter needs to be A
referred to larger Bench for re-consideration of the issue
as to whether the officer investigating the matter under
NDPS Act would qualify as police officer or not. In this
context, the other related issue viz. whether the
statement recorded by the investigating officer u/s. 67 of B
the Act can be treated as confessional statement or not,
even if the officer is not treated as police officer also
needs to be referred to the larger Bench, inasmuch as it
is intermixed with a facet of the 1st issue as to whether
such a statement is to be treated as statement u/s. 161 c
of the Code or it partakes the character of statement u/s.
164 of the Code. [Para 39-40] [998-B-D]
Kanhaiyala/ v. Union of India 2008 (1) SCR 350 = 2008
(4) SCC 668 =; Nirmal Singh Peha/wan 2011 (9) SCR 446
= (2011) 12 SCC 298; State of Punjab v. Barkat Ram (1962) D
3 SCR 338; Raj Kumar Karwal v. Union of India 1990 (2)
SCR 63 =1990 (2) SCC 409; Shahid Khan vs. Director of
Revenue Intelligence 2001 (Criminal Law Journal 3183 -
referred to.
E
Queen Empress v. Babula/ I.LR (1884). 6 All. 509 -
referred to.
2. Since the appellant has already undergone more
than 9 years of sentence, further sentence is suspended F
till the disposal of the appeal by the large Bench. The
appellant shall be released on bail. [para 43] [999-B-C]
Case Law Reference:
2008 (1) SCR 350 referred to para 21
G
1990 (2) SCR 63 referred to para 21
2008 (10) SCR 379 referred to para 27
(2001 > 9 sec 578 referred to para 30
H
966 SUPREME COURT REPORTS [2013] 9 S.C.R.
A (1964) 2 SCR 752 referred to para 30
(1997) 1 sec 416 relied on para 33
2009 (5) SCR 205 relied on para 33
1987 (1) SCR 1095 relied on para 33
B
(1962) 3 SCR 338 referred to para 37
2011 (9) SCR 446 referred to para 38
2001 (Criminal Law
c Journal 3183 referred to para 41
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 152 of 2013.
From the Judgment and Order dated 18.06.2012 of the
D High Court of Judicature at Madras in Criminal Appeal No. 8
of 2010.
Sushil Kumar Jain, Puneet Jain, Christi Jain, Ruchika
Gohil, Anurag Gohil, Pramod Sharma, Pratibha Jain for the
E Appellant.
S. Nanda Kumar, Chetan Chawla, Soniya Malhotra, B.
Krishna Prasad for the Respondent.
The Judgment of the Court was delivered by
F A.K. SIKRI, J. 1. The appellant herein, Tofan Singh, was
listed as Accused No. 3 in the trial for the offences under
Section 8(c) r/w Section 21 (c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter to be referred
as the NDPS Act) as well as for the offences under Section
G 8(c) r/w Section 29 of the NDPS Act. This trial, conducted by
the Special Judge, Additional Special Court, under NDPS Act,
Chennai, resulted in the conviction of the appellant holding him
guilty of the offences under the aforesaid provisions of the Act.
As a consequence of the said judgment dated 18.12.2009
H convicting him under the provisions of the NDPS Act, the
TOFAN SINGH v. STATE OF TAMIL NADU 967
[A.K.SIKRI, J.]
learned Special Judge sentenced the appellant to undergo 10 A
years rigorous imprisonment and to pay a fine of Rs. one lakh.
In default whereof, it was ordered that the appellant would
undergo rigorous imprisonment for a further period of one year.
Identical sentences were imposed for the offences under
Section 8 (c) read with Section 21 & 29 of the NDPS Act, 1985 B
with the direction that both the sentences had to be undergone
by the appellant concurrently.
2. Appeal filed by the appellant against the order of the
Special Judge, Addi. Special Court, has been dismissed by C
the High Court of Judicature at Madras vide judgment dated
18.6.2012 thereby maintaining the conviction as well as the
sentence awarded by the Special Judge, Addi. Special Court
under NDPS Act, Chennai. Dissatisfied and undeterred by the
judgments of the Courts below, the appellant preferred the
Special Leave Petition in which the leave was granted on D
18.1.2013. However, at the same time, bail application
preferred by the appellant was rejected and appeal was posted
for hearing. This is how the present appeal arises against the
impugned judgment dated 18.6.2012 of the High Court of
Judicature at Madras. E
3. The allegations against the appellant (alongwith five
others out of whom two are absconding) were that 5.250 Kgs
of heroin was seized from these accused persons which they
were carrying and attempting to export out of India. As per the F
complaint filed by the Intelligence Officer, NCB, Chennai in this
behalf, the prosecution case is stated, in a summary form, as
below:-
4. On 23.10.2004, the Intelligence Officer, NCB, South
Zone Unit, Mr. L.S. Aruldoss (PW-7), received information at G
about 9.00 p.m. that one Prem @ Kannan @ Sudeshwaran
resident of Nanganallur, Chennai was procuring Narcotic Drugs
from Guddu Singh resident of Rajasthan with the assistance of
one Bapulal resident of Pattalam, Chennai, for trafficking it from
Chennai to Srilanka and that they had made arrangements for H
968 SUPREME COURT REPORTS [2013] 9 S.C.R.
A the supply of 5 Kgs. of heroin through his two persons, who were
identified to Bapulal by Guddusingh and those two persons
were arriving at Chennai on the next day by Jaipur Express. It
was further reported that the said Bapulal and Kannan had
planned to leave at 10.00 p.m. on 23.10.2004 to Nellore,
B Andhra Pradesh, in a white Ambassador Car bearing
Registration No. TN-01-K0923 and on reaching Chennai, Prem
@ Kannan @ Sudeshwaran would receive the heroin and
smuggle it out to Srilanka.
5. After receiving the information, Mr. LS. Aruldoss, the
C lnteliigence Officer (PW-7) discussed the matter with other
officers namely Mr. Gunabalan (PW-6) and Mr. A. Sendhil
Murugan (PW-10) resulting into the orders by Mr. Gunabalan
(PW-6) to proceed with the case. Accordingly, on 24.10.2004,
at about 9.00 a.m., P.W.6, P.W.7, and P.W.10 and two other
D staff members viz., one Sepoy and Driver left NCB Office and
reached the scene of occurrence at 11.00 a.m. On the
instruction of P.W.6, P.W.7 procured two independent
witnesses viz. S. Gopi (P.W.8) and one Krishnamurthy (not
examined). They intercepted the Ambassador Car bearing
E Registration No. TN-01-K0923 and found that there were six
passengers inside the car. On the front seat, there were two
drivers namely, Satyakeerthi and Mariappan and next to driver
Mariappan, the appellant herein was sitting. On the back seat
Prem @ Kannan @ Sudeshwaran (Accused No. 2) of Srilanka,
F Bapulal (Accused No. 1) of Chennai & Badrilal Sharma
(Accused No. 4) were seated. After the police party enquired
as to whether there were any Narcotic Drugs, Accused No. 1
& 2 who were seated on the back seat, took out one green
colour bag from beneath their seat and handed it over to Mr.
G Aruldoss (P.W.7) stating that it contains 5 Kgs. of heroin. The
recoveries were, thereafter, effected and the accused persons
were arrested for commission of offences under the NDPS Act.
The two drivers of the ambassador car were, thereafter, allowed
to go. The appellant and the other accused persons were
H arrested by the raiding party.
TOFAN SINGH v. STATE OF TAMIL NADU 969
[A.K.SIKRI, J.]
6. While the four accused persons including the appellant A
were arrested, the other two accused namely Guddu Singh @
Vikram Singh and Ravi could not be arrested and were
absconding. The statements of the arrested accused persons
were recorded by Mr. A. Sendhil Murugan, Intelligence Officer.
The appellant also gave his statement under Section 67 of the B
NDPS Act as per which he confessed to the commission of
the crime.
7. The case was, thereafter, handed over to Mr. R.
Murugan (P.W.2) for investigation. After completing the
investigation, he filed a report under Section 173 of the Code C
of Criminal Procedure, 1973 before the Special Judge under
NDPS Act. Charges were framed and the matter went on trial.
The prosecution examined as many as 10 witnesses. Among
them were Mr. LS. Aruldoss - Intelligence Officer, NCB (P.W.7),
Mr. Gunabalan - Superintendent (P.W.6), Mr. A. Sendhil D
Murugan (P.W.10), Mr. R. Murugan (P.W.2), Smt. Saraswathy
Chakravarthy, Chemical Examiner in Customs House
Laboratory at Chennai (P.W.4), Mr. T. Sridhar (P.W.5).
8. The information relating to the commission of the E
offence has been taken note of and discussed by the Trial
Court as well as the High Court in the impugned judgment in
detail. It is not necessary to burden this judgment with all those
details as. our purpose would be served by referring to those
aspects which are essential for the purposes of the present F
appeal. We may state that the prosecution had also produced
Exs. P1 to P81 and M.Os 1 to 19 during the trial. After
examining the prosecution witnesses, statements of the
accused persons under Section 313 of the Code of Civil
Procedure (hereinafter to be referred as 'Code')were recorded. G
The accused persons denied the same and state~ as follows:
A-1 : Denied the incriminating evidence against him and
stated that he was compelled to come to the NCB
Office and a false case is foisted against him and
gave a written statement stating that the NCB H
970 SUPREME COURT REPORTS [2013] 9 S.C.R.
A officers came to his house between 12.30 to 1.00
p.m. on 25.10.2004 and took him to their office at
Chennai in the presence of his wife and his children
and have forcibly taken the signatures on some
papers written in Hindi and that he is not connected
B with the other accused and that he was not
occupant of the Car as alleged in the case and he
was not aware of the contraband seized and
examined defence witnesses on his behalf namely
Mr. Vinay, son of A-1, D.W.1 and Dr.
c Somasundaram D.W.2.
A-2: Denying the incriminating evidence against him
stated that he was taken from Nanganallur to the
NCB Office and that he was not allowed to talk
before the Judge during remand .
. D
A-3: Stated that summon was not issued to him and Rs.
1 ,600/- and train tickets were seized from him at
Chennai Central Railway Station and he was
beaten and forced to sign in the NCB office on
E blank papers and stated that it is a false case.
A-4: Stated that he was arrested at Nellore Railway
Station while he was coming from train and his
signatures were obtained forcibly and the
Intelligence Officer Mr. Karthikeyan (P.W.3) has
F foisted a false case against him due to quarrel in
the train between him and the Intelligence Officer
and that he was working in the RPF and is not
connected with the contraband seized and gave a
written statement stating that he travelled in mufti to
G go to Tirupathy and got down at Chennai Central
Railway Station and was arrested and false case
was foisted against him due to wordy quarrel with
the officer and that Section 67 statement was
obtained by force and torture and that he was not
H carrying any Narcotic Drug.
TOFAN SINGH v. STATE OF TAMIL NADU 971
[A.K.SIKRI, J.]
Thereafter, the accused persons produced two witnesses A
who were examined and one document Ex. D1 was marked.
9. Defence evidence is as follows:-
DW.1: The NCB Officers came at about 1.00 p.m on
25.10.2004 and searched the house of A-1 and B
they obtained his signature and his mother's
signature in blank papers by threatening them. A-2
has not gone anywhere during September and
October of 2004 and he was at home doing cloth
business. A-1 was taken from his office and C
arrested. The other accused had never contacted
A-2 over phone at any time.
DW.2: Dr. Somasundaram has recommended A-1
for treatment for Paralysis at Royapettah Hospital D
and his case sheet containing 21 pages for
treatment from January, 2008 to 25.9.2008 is Ex.
D.1.
10. It would be relevant to point that two of the accused
persons namely Guddu Singh @ Vikram Singh and Ravi were E
absconding and they could not be procured during the trial,
resulting into splitting up of case as new C.C. No. 9 of 2007.
Thereafter, the trial proceeded against the other four accused
persons which led to their conviction, as mentioned above. All
these four accused persons had filed the appeal which has F
been dismissed by the High Court of Judicature at Madras vide
impugned Judgment. However, out of the four convicted
persons, only the appellant herein has preferred the present
appeal.
G
JUDGMENT OF THE TRIAL COURT:
11. The learned Trial Court in its judgment dated
18.12.2009, after pointing out the main prosecution evidence
as well as the defence, noted that the gist of the prosecution
H
972 SUPREME COURT REPORTS [2013] 9 S.C.R.
A case was that the six accused persons had hatched criminal
conspiracy at Nellore, Andhra Pradesh, Chennai and Srilanka
to procure, possess, transport and attempt to export out of India
5.250 Kgs. of heroin to Srilanka. Accused No. 2 had indulged
in financing for purchase of heroin for which he entered India
without registering himself as a foreigner. The heroin, which
8
was seized, was being taken for the said export which was
intercepted in the manner stated below:-
"As per the prosecution, after the information was received
by Mr. L.S. Aruldoss, Intelligence Officer (P.W.9) on
c 23.10.2004 and discussed with Mr. Gunabalan,
Superintendent (P.W.6) and Mr. A. Sendhil Murugan,
Intelligence Officer (P .W.10) and further action was
sanctioned, the raiding party consisting of PW.6, PW.7,
PW.10 with Sepoy and driver, left the NCB office in the
D vehicle Mini Bus bearing Registration No. TN 09 C 3113
on 24.10.2004 at 9.00 a.m and had reached GNT Road
100' Road Junction at 11.00 a.m. Two independent
witnesses namely, Mr. S. Gopi (P.W.8) and Krishnamurthy
were also associated. When they were mounting
E surveillance at about 12.00 noon, they noticed
Ambassador Car bearing Regd. No. TN 01 K 0923
coming towards Chennai which was intercepted by the
raiding authority and the heroin in question seized in the
manner already explained above. The case argued by the
F prosecution was that the conspiracy hatched between
Accused No. 1 to 4 was proved by the seizure of Ex. P-4
train ticket PNR No. 840-7161615 dt. 14.10.2004 and Ex.
P-41 the booking particulars disclose the name of A-2, A-
2 and Rajesh and the place of travel from Mumbai to
madras and another passenger name through it was
G
mentioned in it was given as Shahid by A-1 in his further
voluntary statement in Hindi Ex. P-6 of which the free
English translation is Ex. P-77 in which it is stated that
Shahid is the person through whom money was sent to
Guddu Singh which in fact is within the special knowledge
H
TOFAN SINGH v. STATE OF TAMIL NADU 973
[A.K.SIKRI, J.]
of A-1. In the same manner Ex. P-5 telephone bills were A
seized from the residence of A-1 and when A-21 was
questioned about the telephone numbers Faroth and
Sarola A-2 has stated in Ex. P-77 that these numbers
belong to Guddu Singh and his brother through which he
used to talk about smuggling of heroin. In the English B
translation of voluntary statement of A-3, Ex. P-78 of which
the Hindi version is Ex. P-10 it is stated that A-3 met
Guddu Singh who introduced him to A-4 and told him that
A-4 is working in RPF, Bhawani Mandi, Rajasthan and that
A-4 would travel with him in uniform in Jaipur Chennai c
Express and handed over a bag containing 5 Kgs. of
heroin stating that it should be handed over to A-1 at
Nell ore who was already introdllced to A-3 on 13.10.2004.
The version of A-3 in Ex. P-78 that he travelled in Jaipur
Chennai Express from Shamgarh is corroborated by the
0
seizure of two train tickets Ex. P-61 and Ex. P-62 from
Shamgarh to Chennai from A-3 and 1.0. Card of A-4 Ex.
P-63 discloses !hat A-3 was working in RPF. Ex. P-79 is
the voluntary statement of A-4 which is free english
translation of the hindi statement of Ex. P-74 in which A-
E
has stated that he boarded Jaipur Express on 22.10.2004
and met A-3 in Bhopal in the train and that he knew that
A-3 brought Narcotic Drug with him. Conspiracy could be
proved only through the conduct of the accused. A-3 and
A-4 had travelled with the contraband in the train and have
met A-1 and A-2 at Nellore and handed over the same and F
boarded in the ambassador car only due to the previous
meeting of minds by fixing the time and place of handing
over the contraband to the concerned accused. From the
proved conduct of A-1 to A-4 it is clear that they have
involved themselves in the illegal trafficking of heroin. Ex. G
P-21 call analysis discloses that 07425-284050 in the
name of Bhuvan Singh of M.P. was frequently in touch with
A-2 and A-2 mobile numbers A-1 in his voluntary statement
Ex. P-2 has stated that Guddu Singh Number is 07425-
284050 through which he used to contact A-3 and Guddu H
974 SUPREME COURT REPORTS (2013] 9 S.C.R.
A Singh. Hence, the prosecution contended that the charges
against A-1 to A-4 for possession transportation of heroin
for Export from India and Conspiracy U/s. 8(c) r/2. 21 (c)
and 29 of NDPS Act were well proved."
B 12. In so far as the charge under Section 28 of the NDPS
Act is concerned, the trial court held that the said charge was
not proved against the accused persons, in as much as at the
stage of preparation to commit the offence of illegal export of
contraband, the car was intercepted and search and seizure
C conducted which resulted in the recovery of the contraband. As
such, the accused persons were apprehended in the middle
of the operation and since the attempt to commit the offence
of export had not yet begun, it could not be said that the
accused persons had committed any act which could be
considered as a step towards the commission of offence of
D export of the contraband. The accused persons were, thus,
acquitted of the charge under Section 28 of the NDPS Act.
13. Likewise, the trial court held that charge under Section
27A of the NDPS Act foisted upon the accused No. 2 was not
E proved as no oral or documentary evidence was produced in
the form of Bank Pass Book or income particulars or documents
regarding the money transactions between the seller and the
purchaser of heroin. Moreover, there was no oral or
documentary evidence to show that the Accused No. 2 had
F failed to register himself as a foreigner or that he had entered
into India without valid and legal documents and thus, he was
acquitted of the charge under Section 3(3) of the Passport
(Entry into India) Act, 1920 read with Rule 3 (a) as well as under
Section 14 of the Foreigners Act, 1946.
G 14. While discussing the main charge leveled under
Section 8(c) read with Section 21 (c) and 29 of the NDPS Act,
the trial court noted that the defence counsel had sought for
discard of the prosecution case on the following grounds:
H (i) Voluntary statement recorded under Section 67 of
TOFAN SINGH v. STATE OF TAMIL NADU 975
[A.K.SIKRI, J.]
the NDPS Act had been retracted and so, they had A
no evidentiary value.
(ii) There was violation of Section 50 of the NDPS Act
as there was non-compliance of the provisions
thereof. B
(iii) Driver of the vehicle was not examined which was
fatal to the prosecution case.
(iv) Sample sent for analysis and the seized contraband
were not one and the same. c
(v) There was no link evidence which vitiated the trial.
(vi) Names of Accused No. 3 (the appellant) and
Accused No. 4 were not mentioned in the
information which was received by the Intelligence D
Officer and, therefore, they were wrongly included
in the charge sheet.
(vii) There was a violation of standing order 1/88 in as
much as samples were not submitted to the E
Chemical Examiner within 72 hours of seizure and
the report was not submitted within 15 days of
receipt of contraband for analysis.
(viii) Statements under Section 67 were not recorded in
accordance with law, as no statutory warning under F
Section 164 of the Code of Criminal Procedure was
given to the accused persons before recording the
statement.
15. The trial court discussed the arguments predicated on G
the aforesaid defence but found the same to be meaningless.
On the basis of prosecution evidence, the trial court concluded
that the prosecution was able to prove the charges under
Section 8(c) read with Section 21(c) and Section 29 of the
NDPS Act and convicted and sentenced the accused persons H
976 SUPREME COURT REPORTS [2013] 9 S.C.R.
A in the manner mentioned in the beginning of this judgment.
JUDGMENT OF THE HIGH COURT:
16. A perusal of the impugned judgment reveals that as
many as six arguments were advanced before the High Court,
B attacking the findings of the learned Trial Court. Taking note of
these grounds of appeal, the High Court framed the questions
in Para 12 of the judgment. We reproduce hereinbelow those
six questions formulated by the High Court which reflected the
nature of defence:
c
(i) Whether Section 50 of NDPS Act is complied with
or not?
(ii) Whether the provision of Section 42 of NDPS Act
is complied with or not?
D
(iii) Whether non-examination of drivers and non-
seizure of vehicle/ car are fatal to the case of the
prosecution?
E (iv) Whether Section 67 statement of the accused is
reliable?
(v) Whether Accused No. 2 is entitled to invoke Section
30 of NDPS Act?
F (vi) Whether conviction and sentence passed by the
trial court is sustainable.
17. Obviously, all these questions have been answered by
the High Court against the appellant herein as the outcome of
G the appeals has gone against the appellant. However, it is not
necessary to mention the reasons/ rationale given by the High
Court in support of its conclusion in respect of each and every
issue. We say so because of the reason that all the aforesaid
contentions were not canvassed before us in the present
appeal. Thus, eschewing the discussion which is not relevant
H
TOFAN SINGH v. STATE OF TAMIL NADU 977
[A.K.SIKRI, J.]
for these appeals, we would be narrating the reasons contained A
in the impugned judgment only in respect of those grounds
which are argued by Mr. Sushil Kumar Jain, learned Counsel
appearing for the appellant, that too while taking note of and
dealing with those arguments.
8
THE ARGUMENTS:
18. After giving brief description of the prosecution case,
in so far as the alleged involvement of the appellant is
concerned. Mr. Sushil Kumar Jain drew our attention to the
following aspects as per the prosecution case itself: c
(a) In the present case in the prior secret information
with the police, there was no prior information with
regard to the appellant herein. The secret
information (Ex. P-72) does not disclose the name D
of the appellant at all.
(b) On the date of incident also, the appellant was found
sitting on the front seat alongwith the two drivers
who have been let off by the investigating agency
itself and the ambassador car from which the E
recoveries had been effected has also not been
seized. The said drivers could have been the best
witnesses but they have not been examined by the
prosecution.
F
(c) The recovery of the narcotic substance was made
at the instance of A1 and A2 (and not the appellant
herein), who while sitting on the back seat took out
a green colour bag from beneath their seat and
handed it over to PW. 7. The appellant cannot be G
said to be in conscious possession of the narcotic
substance.
(d) In the search conducted of the appellant herein, the
raiding party found Indian currency of Rs. 680/- (vide
Ex. P-11) which is M.O. 15 and two second class H
978 SUPREME COURT REPORTS [2013] 9 S.C.R.
A train tickets from Shamgarh to Chennai. Thus no
incriminating material has been recovered from the
appellant. Further there is also no recovery of any
mobile phone from the appellant herein which could
link the appellant with the other co-accused.
B
(e) The prosecution case hinges solely upon the
confessional statement of the appellant herein (Ex.
P-9), which was recorded by PW.2 - R. Murugan
under Section 67 of the Act, and the same person
acted as the investigating officer in the present
c case.
19. From the above, Mr. Jain argued that there was no
evidence worth the name implicating the appellant except the
purported confessional statement of the appellant recorded
D under Section 67 of the NDPS Act. After drawing the aforesaid
sketch, Mr. Jain endeavoured to fill therein the colours of
innocence in so far as the appellant is concerned with the
following legal submissions:-
(!) It was argued that the conviction of the appellant is
E
based upon a purported confessional statement (Ex. P-9]
recorded by PW.2 R. Murugan under the provisions of
Section 67 of the NDPS Act, which did not have any
evidentiary value. Mr. Jain submitted in this behalf that:
F (a) There is no power under Section 67 of the NDPS
Act to either record confessions or substantive evidence
which can form basis for conviction of an accused, in as
much as:
(i) The scheme of the Act does not confer any power
G
upon an officer empo_wered under Section 42 to
record confessions since neither a specific power
to record confession has been conferred as was
provided under Section 15 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (TADA)
H
TOFAN SINGH v. STATE OF TAMIL NADU 979
[A.K.SIKRI, J.]
or under Section 32 of the Prevention of Terrorism A
Act, 2002 (PO.,.,TA) nor the power under Section 67
is a power to record substantive "evidence" as in
Section 108 of the Customs Act or Section 14 of
the Central Excise Act which are deemed to be
judicial proceedings as specifically provided under B
Section 108(4) of the Customs Act or Section 14(3)
of the Central Excise Act.
(ii) The powers under Section 67 has been conferred
upon an officer under Section 42 so that such
officer can effectively perform his functions. The C
power under Section 67 is incidental to and
intended to enable an officer under Section 42 to
effectively exercise his powers of entry, search,
seizure or arrest which is provided under Section
42 of the Act. The powers under Section 67 are D
powers to "call for information" which information
can thereafter form the basis for satisfaction of
"reasons to believe by personal knowledge or
information" appearing in Section 42 and which a
jurisdictional basis and a pre-condition to exercise E
powers under Section 42 of the Act. Absence of
reasons to believe or information would render the
exercise under Section 42 of the Act bad in law and
hence in order to derive the said information power
has been conferred under Section 67 to an officer F
empowered under Section 42. This statement is,
therefore, merely "Information" subject to
investigation and cannot be treated as substantive
evidence.
G
(b) Pitching this argument to the next level, it was submitted
that the power under Section 67(c) of the Act is merely a
power to examine any person acquainted with the facts and
circumstances of the case. Such statements are not
required in law to be truthful as provided under Section
H
980 SUPREME COURT REPORTS [2013] 9 S.C.R.
A 161 (2) of the Criminal Procedure Code, which required the
person making statement to a police officer under.Section
161 Cr.P.C. to make a true statement. Even such a
statement made under Section 161 Cr. P.C. is not a
substantive evidence on which a conviction can be based.
B Statements under Section 67 are not required in law to be
given truthfully and hence cannot in any case be treated
to be a substantive evidence. Further statement under
Section 67 are not recorded after administration of oath
as is required under Section 164(5) of the Criminal I.
Procedure Code, the officers are not competent to ;
c administer oaths and, therefore, the statements under
Section 67 cannot be substantive evidence for recording
conviction.
(c) Taking the arguments to a still higher pedestal, Mr.
D Jain's effort was to demonstrate that the officer recording
the statement was a police officer and, therefore, such a
statement was hit by Section 25 of the Indian Evidence Act.
He submitted that an officer empowered under Section 42
of the Act has been conferred with substantive powers
E which are powers available to a police officer for detection
and prevention of crime. The learned Counsel placed
heavy reliance upon the ratio of the judgment of the
Constitution Bench of this Court in the case of Batku Jyoti
Sawat Vs. State of Mysore 1966 (3) SCC 698 which
F accepted a broader view, as laid down in the case of
Rajaram Jaiswal Vs. State of Bihar 1964 (2) SCR 752
and State of Punjab Vs. Barkat Ram 1962 (3) SCR 338.
It was submitted that in view of the ratio of the above
judgments, officers empowered under Section 42 and
G conferred with powers to enter, search, seize or arrest are
"police officers" properly so called and hence statements
made to such officers would be hit by the provisions of
Section 25 of the Evidence Act. In any case such officers
would come within the meaning of term "person in
authority" and hence the statements recorded by such
H
TOFAN SINGH v. STATE OF TAMIL NADU 981
[A.K.SIKRI, J.]
officers would be hit by the provisions of Section 24 of the A
Evidence Act especially since the statements were not
voluntary and had been retracted by the accused.
(d) In the alternate, the submission of Mr. Jain was that
even if it is assumed, without admitting, that Section 67 B
confers powers to record confessions, the status of a
statement recorded by an officer under Section 42 of the
Act can at best be recorded as "extra judicial confession"
and no conviction can be based solely on the basis of extra
judicial convictions.
c
(e) It was also argued that in any case the statement under
Section 67 was retracted and as such the confession in
the present case is a retracted confession which ought to
have been investigated and could have been used only to
corroborate other evidence and not as a substantive D
evidence itself. He submitted that no conviction can be
based on uncorroborated retracted confessional statement
as held in Noor Aga Vs. State of Punjab 2008 (9) SCALE
681.
E
(II) Next submission of Mr. Jain was that there was
complete absence of Fair Investigation and Non-
compliance of the provisions of Section 52(3) of the
Act-
Pointing out that in the present case the appellant had F
been arrested by PW.2 - R. Murugan after recording statement
under Section 67 of the Act, the Id. Counsel made a fervent plea
to the effect that it was evident that PW.2 R. Murugan was
exercising purported powers conferred to an officer under
Section 42 of the Act. It was submitted that Section 52(3) of G
the Act casts an obligation on an officer empowered under
Section 42 of the Act to forward, without unnecessary delay
every person arrested or article seized to either an officer-in-
charge of a police station or an officer empowered under
Section 53. According to him, since there is an obligation to H
982 SUPREME COURT REPORTS [2013] 9 S.C.R.
A forward such person arrested or article seized, to an officer
under Section 53 or an officer-in-charge of the police station,
it necessarily follows that an officer under Section 42 would be
different and distinct from an officer invested with the task of
investigation, i.e., either the officer-in-charge of t~e police
B station or an officer empowered under Section 53 of the Act.
In the present case, however, the PW.2 R. Murugan recorded
the statement of the appellant under Section 67 and thereafter
arrested him. He was, therefore, required to forward the
statement as well as the appellant to the Investigating officer
c in terms of Section 52(3). Instead, he himself became the
Investigating Officer in the present case, which amounted to
non-compliance of Section 52(3) read with Section 58 of the
Act. Fair investigation demands existence of an independent
investigating agency which is also contemplated and is evident
from the scheme of NDPS Act. It was submitted that since
0
Section 58 of the Act provides for punishment for vexatious
entry, search, seizure and arrest, the conduct of the officer
arresting or an officer under Section 42 is subject matter of
investigation by an independent agency and hence PW. 2 R.
E Murugan could not have been made an investigating officer in
the present case after he has already acted and exercised
powers under Section 42 of the Act.
(Ill) Another submission of Mr. Jain was that trial was
initiated because of Non-compliance of the
F Provisions of Section 57 of the Act -
It was submitted that Section 57 requires that whenever
any person makes any arrest or seizure under the Act, then a
report thereof has to be submitted of such arrest or seizure to
G his immediate superior officer. In the present case the raiding
party comprised of PW.6- Gunabalan, Superintendent - PW.7
Aruldoss, Intelligence Officer, PW.10 Sendhil Murugan,
Intelligence Officer and two other staff members i.e., one Sepoy
and one driver. It was submitted that the senior most officer
among the raiding team was PW.6 Gunabalan who was,
H therefore, exercising powers under Section 42 of the Act and
TOFAN SINGH v. STATE OF TAMIL NADU 983
[A.K.SIKRI, J.]
the other officers being his subordinates were assisting him in A
exercise of such powers. Therefore, the report contemplated
under Section 57 ought to have been made by PW.6 Gunabalan
to his immediate superior officer but instead, in the present
case PW.7 Aruldoss has submitted a report to PW.6
Gunabalan under Section 57 of the Act with regard to seizure B
and PW.2 R. Murugan has submitted report to PW.6 Gunabalan
under Section 57 with regard to arrest of the appellant herein.
It is, thus, submitted that there is a complete non-compliance
of the provisions of Section 57 of the Act which has vitiated the
safeguards provided under the Act and as such the appellant c
could not have been convicted.
20. Arguing on behalf of the prosecutor, Mr. S. Nanda
Kumar, learned Counsel submitted that the appellant had given
voluntary statement that discloses his involvement in the
commission of the offence alongwith other accused persons. D
In the statement he has categorically admitted having bringing
5.250 kgs of heroin/ narcotic substance from Maniki Village,
District Mandsaur, Rajasthan to Chennai by Jaipur - Chennai
Express along with other co-accused Badrilal Sharma wearing
RPF Uniform till Nelore, Andhra Pradesh. He has also admitted E
that, thereafter, the other accused namely Guddu Singh @
Vikram Singh and Bapulal Jain picked them in a car and
proceeded to Chennai. It is on the way that these accused
persons were caught by the respondent's officials and based
on their confession as well as the material seized, the case was F
registered. He also pointed out that it has come on record that
Babulal Jain (declared as absconder) and Guddu Singh were
involved in the similar offence by selling 8 Kgs. of heroin on
earlier occasions which was handed over to Prem @ Kannan,
a Srilankan National, another co-accused in this case. It was G
the second time that the accused persons planned to smuggle
the heroin to Srilanka.
21. Refuting the submissions of the appellant, it was
submitted that the confessional statement recorded under H
Section 67 of the NDPS Act could be acted upon, as the officer
984 SUPREME COURT REPORTS [2013] 9 S.C.R. ·
A recording statement under this provision under Section 67 is
not a "police officer" and, therefore, such a statement is not hit
by the provisions of Section 24 to 27 of the Evidence Act or
Article 20(3) of the Constitution of India. His submission was
that law on this aspect had already been settled by the judgment
B of this Court in Kanhaiyalal v. Union of India; 2008 (4) SCC
668 as well as Raj Kumar Karwal v. Union of India; 1990(2)
SCC 409. The learned Counsel pointed out that judgment relied
upon by the appellant pertains to other Acts like Customs Act
etc. whereas the aforesaid judgments specifically dealt with the
c nature of duties performed by officers under the NDPS Act and,
therefore, on this issue Raj Kumar (Supra) and Kanhaiyalal
(Supra) were the binding precedents. He also submitted that
as per Section 67 of NDPS Act, any officer referred to in
Section 42 of NDPS Act was empowered to obtain a
statement. Once the said statement is made it can also be
0
construed as confessional statement since there is no specific
provision in the Act to obtain the confessional statement from
the accused. Therefore, such a statement of the appellant was
rightly relied upon resulting into his conviction.
E 22. The learned Counsel for the state also countered the
submission of the appellant that the officer acting under Section
53 of the NDPS Act i.e. the investigating officer had to be
necessarily different from the officer who is acting under Section
42 of the NDPS Act. He submitted that Sections 42, 53 and
F 67 of NDPS Act do not bar the officer authorized under the act
to conduct, search, seizure, investigate and enquire into the
matter. His submission was that the depositions of PW.2 -
Murugan, Intelligence Officer, PW.6 - Gunabalan,
Superintendent and PW.10 - Senthil Murugan, Intelligence
G Officer establish that they are empowered to act under Section
42, 53 and 67 of the NDPS Act.
23. The learned Counsel also highlighted incriminating
facts as per the records viz. the raid team was led by PW.6 -
H Gunabalan, Superintendent along with the PW.10 A. Senthil
TOFAN SINGH v. STATE OF TAMIL NADU 985
[A.K.SIKRI, J.]
Murugan, Intelligence Officer and one Aruldoss, Intelligence A
officer. Also two other officials conducted the raid and made a
search and seizure of the heroin on 24.10.2004 at 12.00 hrs.
at GNT Road, 100 ft. road, Madhavaram in Chennai where the
vehicles come from Nellore, Andhra Pradesh towards Chennai
Junction. After the seizure, PW.2 - Murugan enquired into the B
matter as per the direction of the superintendent. He also
obtained the voluntary statement under Section 67 of the NDPS
Act. The accused also gave another statement for supply of
heroin to Guddu Singh. The confessional statement of Badrilal
Sharma, who travelled alongwith accused/ appellant was also c
recorded. The confessional statement of absconded accused
viz. Babulal Jain is also on the original record. In addition to
that, the Identity Card of Badrilal Sharma and the train tickets
of the appellant and Badrilal Sharma, as both of them travelled
together, have come on record. All this proves that the appellant 0
was in possession of the heroin 5.250 Kgs. and carried it from
Rajasthan to Chennai with intention to smuggle the same to
Srilanka, when he was caught. He thus pleaded that conviction
and sentence of the appellant was rightly recorded by the courts
below, which warranted no interdicting by thi_s court.
E
24. From the arguments noted above, it would be clear that
the appellant has challenged the conviction primarily on the
following grounds:-
{i) The conviction is based solely on the purported F
confessional statement recorded under Section 67 of the
NDPS Act which has no evidentiary value in as much as:
{a) The statement was given to and recorded by an
officer who is to be treated as "Police Officer" and
is thus, hit by Section 25 of the Indian Evidence Act. G
(b) No such confessional statement could be
recorded under Section 67 of the NDPS Act. This
provision empowers to call for information and not
to record such confessional statements. Thus, the H
986 SUPREME COURT REPORTS [2013) 9 S.C.R.
A statement recorded under this provision is akin to
the statement under Section 161 Cr.PC.
(c) In any case, the said statement having been
retracted, it could not have been the basis of
conviction and could be used only to corroborate
B
other evidence.
(ii) There was absence of fair investigation and non-
compliance of the provisions of Section 52(3) of the NDPS
Act. This submission is primarily based on the argument
c that same person cannot be an officer under Section 42
of the NDPS Act as well as investigating officer under
Section 52 of the said Act.
(iii) Non-compliance of Section 57 of the NDPS Act is also
D alleged because of the reason that P.W.7 who was the
senior most officer among the raiding team has submitted
the report under Section 57 of the NDPS Act with regard
to arrest of the appellant to P.W.6j. Instead P.W.6 should
have submitted the report of such arrest to P.W.7.
E 25. We shall take up these arguments in seriatim for our
discussion:
Evidentiarv value of statement u/s 67 of the NDPS Act.
F Before examining this contention of the appellant, it would
be apposite to take note of the provisions of Sections 42, 53
and 67 of the NDPS Act. These provisions read as under:-
42. Power of entry, search, seizure and arrest without
warrant or authorization.
G
(1) Any such officer (being an officer superior in
rank to a peon, sepoy or constable) of the
departments of central excise, narcotics, customs,
revenue intelligence or any other department of the
H Central Government including para-military forces
TOFAN SINGH v. STATE OF TAMIL NADU 987
[A.K.SIKRI, J.]
or armed forces as is empowered in this behalf by A
general or special order by the Central
Government, or any such officer (being an officer
superior in rank to a peon, sepoy or constable) of
the revenue, drugs, control, excise, police or any
other department of a State Government as is B
empowered in this behalf by general or special
order of the State Government, if he has reason to
believe from persons knowledge or information
given by any person and taken down in writing that
any narcotic drug, or psychotropic substance, or c
controlled substance in respect of which an offence
punishable under this Act has been committed or
any document or other article which may furnish
evidence fo the commission of such offence or any
illegally acquired property or any document or other 0
article which may furnish evidence of holding any
illegally acquired property which is liable for seizure
or freezing or forfeiture under Chapter VA of this
Act is kept or concealed in any building ,
conveyance or enclosed place, may between
E
sunrise and sunset-
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door and F
remove any obstacle to such entry;
(c) seize such drug or substance and all materials used
in the manufacture thereof and any other article and
any animal or conveyance which he reason to
believe to be liable to confiscation under this Act G
and any document or other article which he has
reason to believe may furnish evidence of the
commission of any offence punishable under this
Act or furnish evidence of holding any illegally
acquired property which is liable for seizure or H
988 SUPREME COURT REPORTS [2013] 9 S.C.R.
A freezing or forfeiture under Chapter VA of this Act;
and
(d) detain and search, and, if he thinks proper, arrest
any person whom he has reason to believe to have
committed any offence punishable under this Act.
B
Provided that if such officer has reason to believe that a
search warrant or authorization cannot be obtained without
affording opportunity for the concealment of evidence or
facility for the escape of an offender, he may enter and
c search such building, conveyance or enclosed place at any
time between sunset and sunrise after recording the
grounds of his belief.
(2) Where an officer takes down any information in
D writing under sub-section (1) or records grounds for
his belief under the proviso thereto, he shall within
seventy-two hours send a copy thereof to his
immediate official superior.
"53. Power to invest officers of certain departments with
E powers of an officer-in-charge of a police station:-
(1) The Central Government, after consultation with the
State Government, may, by notification published in
the Official Gazette, invest any officer of the
F Department of Central Excise, narcotics, Customs,
Revenue Intelligence or the Border Security Force
or any class of such officers with the powers of an
officer-in-charge of Police Station for the
investigation of the offences under this Act.
G (2) The State Government may, by notification
published in the official gazette, invest any officer
of the Department of Drugs Control, Revenue or
Excise or any class of such officers with the powers
of an officer-in-charge of a police station for the
H investigation of offences under this Act."
TOFAN SINGH v. STATE OF TAMIL NADU 989
[A.K.SIKRI, J.]
"67. Power to call for information etc. A
Any officer referred to in Section 42 who is
authorized in this behalf by the Central Government
or a State Government may, during the course of
any enquiry in connection with the contravention of B
any provision of this Act:-
(a) Call for information from any person for the purpose
of satisfying himself whether there has been any
contravention of the provision of this Act or any rule
or order made thereunder: c
(b) Require any person to produce or deliver any
document or thing useful or relevant to the enquiry
(c) Examine any person acquainted with the facts and
D
circumstances of the case."
26. We have already taken note of the contentions of
Counsel for the parties on the interpretation of the aforesaid
provisions. To recapitulate in brief, the submission of Mr. Jain
is that there is no power in the Section67 of the NDPS Act to E
either record confessions or substantive evidence which can
form basis for conviction of the accused. It is also argued that,
in any case, such a statement is not admissible in evidence
as the excise official recording the statement is to be treated
as "police officer'' arid thus, the evidential value of the statement F
recorded before him is hit by the provisions of Section 25 of
the Indian Evidence Act.
27. The learned Counsel for the respondent had pointed
out that in the case of Kanhaiyalal vs. Union of India; 2008 G
(4) sec 668, it has been categorically held that the officer
under Section 63 is not a police officer. In arriving at that
conclusion the two judge Bench judgment had followed earlier
judgment in the case of Raj Kumar Karwal Vs. Union of India;
1990 (2) sec 409.
H
990 SUPREME COURT REPORTS [2013] 9 S.C.R.
A 28. Had the matter rested at that, the aforesaid dicta laid
down by two judge Bench would have been followed by us.
However, on the reading of the aforesaid judgment, we find that
the only reason to conclude that an officer under Section 53 of
the NDPS Act was not a police officer was based on the
B following observations:
These provisions found in Chapter V of the Act show
that there is nothing in the Act to indicate that all the powers
under Chapter XII of the Code, including the power to file
a report under Section 173 of the Code have been
c expressly conferred on officers who are invested with the
powers of an officer-in-charge of a police station under
Section 53, for the purpose of investigation of offences
under the Act.
D 29. We find, prima facie, in the arguments of Mr. Jain to
be meritorious when he points out that the aforesaid
observations are without any detailed discussion or the reasons
to support the conclusion arrived at. Mr. Jain's fervent plea to
depart from the view taken in the said judgment deserved
E consideration as there is no provision under the NDPS Act
which takes away the power of filing a report under Section 173
of the Code which is available with an officer-in-charge of a
police station. He further argued that the provision of Section
173 are contained in Chapter XII of the Code and since all
F powers of an officer in-charge of a police station has been
conferred, there is no legal basis to suggest that the said power
is not available with the officer under Section 53 of the Act.
Above all, we find that the judgment in Raj Kumar Karwal
(supra) was considered by this court in few cases but without
G giving imprimatur, as can be seen below:
30. Abdul Rashid v. State of Bihar; (2001) 9 SCC 578,
this Court after noticing the judgment in Raj Kumar Karwal
(supra), chose to apply the Constitution Bench judgment in the
case of Raja Ram Jaiswal reported as (1964) 2 SCR 752 and
H observed thus:-
TOFAN SINGH v. STATE OF TAMIL NADU 991
[A.K.SIKRI, J.]
"Mr. B.B. Singh also brought to our notice a judgment of A
this Court in the case of Raj Kumar Karwal v. Union of
India in support of the contention that even a
superintendent of excise under the Bihar and Orissa
Excise Act is not a police officer and as such a
confessional statement made to him would be admissible B
in evidence. In the aforesaid case, the question for
consideration is whether the officers of the Department of
Revenue Intelligence (DRI) invested with powers of officer
in-charge of a police station under Section 53 are police
officers or not within the meaning of Section 25, and this c
Court answered that those officers are not police officers.
This decision is in pari material with the Constitution Bench
decision in 1966 and does not in any way detract from the
conclusion of this Court in Raja Ram which we have
already noticed. In Pon Adithan v. Dy. Director, Narcotics D
Control Bureau this question had not directly been in issue
and the only question that was raised is whether the
statement made was under threat and pressure. It is
obvious that a statement of confession made under threat
and pressure would come within the ambit of Section 24
E
of the Evidence Act. This decision therefore would not be
direct authority ori the point in issue. In the aforesaid
premises, the decision of Raja Ram would apply to the
alleged confessional statement made by the appellant to
the superintendent of excise and therefore would be
inadmissible in evidence." F
31. Both the said judgments i.e. Raj Kumar Karwal (supra)
as well as Kanhiyala/ (supra) were thereafter considered by
this court in Noor Aga vs. State of Punjab (2008) 9 SCALE
681 where the court, has after considering the entire scheme G
of the Customs Act, has held that the officer under Section 53
of the customs Act is a police officer and would, therefore,
attract the provisions of Section 25 of the Evidence Act. It
observed:
H
992 SUPREME COURT REPORTS [2013] 9 S.C.R.
A "104. Section 53 of the Act, empowers the Customs Officer
with the powers of the Station House Officers. An officer
invested with the power of a police officer by reason of a
special status in terms of sub-section (2) of section 53
would, thus, be deemed to be police officers and for the
B said purposes of Section 25 of the Act shall be
applicable."
32. No doubt, Abdul Rashid & Noor Aga were the cases
under the Customs Act. But the reasons for holding custom
C officer as police officer would have significant bearing even
when we consider the issue in the context of NDPS Act as well.
It would be more so when the schemes & purport of the two
. enactments are kept in mind. NDPS Act is purely penal in
nature. In contradistinction, as far as the Customs Act and the
Central Excise Act are concerned, their dominant object is to
D protect revenue of the State and penal provisions to punish the
person found offending those laws are secondary in nature.
33. Further, the NDPS Act is a complete code relating to
Narcotic Substances, and dealing with the offences and the
E procedure to be followed for the detection of the offences as
well as for the prosecution and the punishment of the accused.
The provisions are penal provisions which can, in certain cases,
deprive a person of his liberty for a minimum period of 10 years
and can also result in sentences which can extend upto 20
F years or even death sentence under certain circumstances. The
provisions therefore have to be strictly construed and the
safeguards provided therein have to be scrupulously and
honestly followed. [See Baldev Singh (1997) 1 SCC 416 Para
28; Union of India vs. Bal Mukund (2009) 12 SCC 161 Para
G 26, 27 & 28; Balbir Singh vs. State of Haryana (1987) 1 SCC
533).
34. We have also to keep in mind the crucial test to
determine whether an officer is a police officer for the purpose
of Section 25 of the Evidence Act viz. the "influence or authority"
H that an officer is capable of exercising over a person from
TOFAN SINGH v. STATE OF TAMIL NADU 993
[A.K.SIKRI, J.]
whom a confession is obtained. The term "police officer" has A
not been defined under the Code or in the Evidence Act and,
therefore, the meaning ought to assessed not by equating the
powers of the officer sought to be equated with a police officer
but from the power he possesses from the perception of the
common public to assess his capacity to influence, pressure B
or coercion on persons who are searched, detained or
arrested. The influence exercised has to be, assessed from the
consequences that a person is likely to suffer in view of the
provisions of the Act under which he is being booked. It,
therefore, follows that a police officer is one who:- c
(i} is considered to be a police officer in "common
parlance" keeping into focus the consequences
provided under the Act.
(ii} is capable of exercising influence or authority over D
a person from whom a confession is obtained.
35. We would also like to point out that Mr. Sushil Kumar
Jain had referred to the provisions of the Police Act as well to
support his submission. The preamble of the Police Act, 1861 E
(Act 5 of 1861 ), which is an Act for the regulation of a group of
officers who come within the meaning of the word "police"
provides"
"Whereas it is expedient to re-organize the police and to
make it a more efficient instrument for the prevention and F
detection of crime, it is enacted as follows."
He argued that from the above, it can be seen that the
primary object of any police establishment is prevention and
detection of crime which may be provided for under the Indian G
Penal Code or any other specific law enacted for dealing with
particular offences and bring the guilty to justice. It was
submitted by him that if special authorities are created under
special enactments for the same purpose i.e. prevention and
detection of crime, such authorities would be "Police and have
H
994 SUPREME COURT REPORTS [2013] 9 S.C.R.
A to be understood in the said perspective. Sections 23 and 25
of the said Act lay down the duties of the police officers and
Section 20 deals with the authority and provides that they can
exercise such authority as provided under the Police Act and
any Act for regulating criminal procedure. Section 5(2) of the
B Criminal Procedure Code provides that "all offences under any
other law shall be investigated, inquired into, tried and
otherwise dealt with according to the same provisions, but
subject to any enactment for the time being in force regulating
the manner or place of investigating, inquiring into, trying or
c otherwise dealing with such offences.
36. On the strength of these provisions, the argument of
the learned Counsel for the petitioner was that persons
categorized as "police officers" can do all the activities and the
statute gives them the power to enable them to discharge their
D duties efficiently. Of the various duties mentioned in· Section 23,
the more important duties are to prevent the commission of
offences and public nuisances and to detect and bring offenders
to justice and to apprehend all persons whom the police officer
is legally authorized to apprehend. It is clear, therefore, in view
E of the nature of the duties imposed on the police officer, the
nature of the authority conferred and also the purpose of the
Police Act, that the powers which the police officers enjoy are
powers for the effective prevention and detection of crime in
order to maintain law and- order. According to the learned
F Counsel, a comparison to the powers of the officers under the
provisions of the NDPS Act makes it clear that the duties and
responsibilities of the officers empowered under the Act are
comparable to those of the police officers and, therefore, they
ought to be construed as such. It is submitted that the primary
G objective of a NDPS Officer is to detect and prevent crime
defined under the provisions of the act and thereafter the
procedure has been prescribed to bring the offenders to justice.
Thus, the officers under the Act are "Police Officers" and
statements made to such officers are inadmissible in evidence.
H
TOFAN SINGH v. STATE OF TAMIL NADU 995
[A.K.SIKRI, J.]
37. He also drew our attention to the following pertinent A
observation of this Court in the case of State of Punjab v.
Barkat Ram; (1962) 3 SCR 338.
"Section 5(2) of the Code of Criminal Procedure also
contemplates investigation of, or inquiry into, offences
8
under other enactments regulating the manner or place of
investigation, that is, if an act creates an offence and
regulates the manner and place of investigation or inquiry
in regard to the said offence, the procedure prescribed by
the Code of Criminal Procedure will give place to that
provided in that Act. If the said Act entrusts investigation C
to an officer other than one designated as police officer,
he will have to make the investigation and not the police
officer. In this situation, the mere use of the words "police
officer'' in section 25of the Evidence Act does not solve
the problem, having regard to permissible rules of D
interpretation of the term "police officer" in that section. It
may mean any one of the following categories of officers
: (i) a police officer who is a member of the police force
constituted under the Police Act; (ii) though not a member
of the police force constituted under the Police Act, an E
officer who by statutory fiction is deemed to be a police
officer in charge of a police station under the Code of
Criminal Procedure; and (iii) an officer on whom a statute
confers powers and imposes duties of a police officer
under the Code of Criminal Procedure, without describing F
him as a police officer or equating him by fiction to such
an officer. Now, which meaning is to be attributed to the
term "police officer" ·in a section 25 of the Evidence Act ?
In the absence of a definition in the Evidence Act it is
permissible to travel beyond the four corners of the statute G
to ascertain the legislative intention. What was the
meaning which the legislature intended it give to the term
"police officer" at the time the said section was enacted
? That section was taken out of the Criminal Procedure
Code, 1861 (Act 25 of 1861) and inserted in the Evidence H
996 SUPREME COURT REPORTS [2013] 9 S.C.R.
A Act of 1872 as section 25. Stephen in his Introduction to
the Evidence Act states at p. 171 thus:
"I may observe, upon the provisions relating to them, that
sections 25. 26 and 27 were transferred to the Evidence
Act verbatim from the Code of Criminal Procedure, Act
B
XXV of 1861. They differ widely from the law of England,
and were inserted in the Act of 1861 in order to prevent
the practice of torture by the police for the purpose of
extracting confessions from persons in their custody. "
C So too, Mahmood, J., in Queen Empress v. Babula/
I. L. R( 1884) . 6 All. 509), gave the following reasons for the
enactment of section 25 of the Evidence Act at p. 523.
" ........... the legislature had in view the malpractices of
police officers in extorting confessions from accused
D
persons in order to gain credit by securing convictions, and
that those malpractices went to the length of positive
torture; nor do I doubt that the Legislature, in laying down
such stringent rules, regarded the evidence of police
officers as untrustworthy, and the object of the rules was
E
to put a stop to the extortion of confessions, by taking away
from the police officers as the advantage of proving such
exported confessions during the trial of accused persons."
It is, therefore, clear that section 25 of the Evidence Act
F was enacted to subserve a high purpose and that his to
prevent the police from obtaining confessions by force,
torture or inducement. The salutary principle underlying the
section would apply equally to other officers, by whatever
designation they may be known, who have the power and
G duty to detect and investigate into crimes and is for that
purpose in a position to extract confessions from the
accused.
" .. Shortly stated, the main duties of the police are the
prevention and detection of ·crimes. A police officer
H
TOFAN SINGH v. STATE OF TAMIL NADU 997
[A.K.SIKRI, J.]
appointed under the Police Act of 1861 has such powers A
and duties under the Code of Criminal Procedure, but they
are not confined only to such police officers. As the State's
power and duties increased manifold, acts which were at
one time considered to be innocuous and even
praiseworthy have become offences, and the police power B
of the State gradually began to operate on different
subjects. Various Acts dealing with Customs, Excise,
Prohibition, Forest, Taxes etc., came to be passed, and
the prevention, detection and investigation of offences
created by those Acts came to be entrusted to officers with c
nomenclatures appropriate to the subject with reference to
which they functioned. It is not the garb under which they
function that matters, but the nature of the power they
exercise or the character of the function they perform is
decisive. The question, therefore, in each case is, does 0
the officer under a particular Act exercise the powers and
discharge the duties of prevention and detection of crime?
If he does, he will be a police officer."
38. In our view the aforesaid discussion necessitates a re-
look into the ratio of Kanhiyalal Case. It is more so when this E
Court has already doubted the dicta in Kanhaiyala/ (supra) in
the case of Nirmal Singh Peha/wan (2011) 12 SCC 298
wherein after noticing both Kanhiyalal as well as Noor Aga, this
Court observed thus:
F
"15. We also see that the Division Bench in Kanhaiyala/
case; 2oos (4) sec 668; (2008) 2 sec (Crl.) 474, had
not examined the principles and the concepts underlying
Section 25 of the Evidence Act vis.-a-vis. Section 108 of
the Customs Act the powers of Custom Officer who could G
investigate and bring for trial an accu~ed in a narcotic
matter. The said case relied exclusively on the judgment
in Raj Kumar's case (Supra). The latest judgment in point
of time is Noor Aga's case which has dealt very
elaborately with this matter. We thus feel it would be
H
998 SUPREME COURT REPORTS [2013] 9 S.C.R.
A proper for us to follow the ratio of the judgment in Noor
Aga's case particularly as the provisions of Section 50 of
the Act which are mandatory have also not been complied
with."
B 39. For the aforesaid reasons, we are of the view that the
matter needs to be referred to a larger Bench for re-
consideration of the issue as to whether the officer investigating
the matter under NDPS Act would qualify as police officer or
not.
C 40. In this context, the other related issue viz. whether the
statement recorded by the investigating officer under Section
67 of the Act can be treated as confessional statement or not,
even if the officer is not treated as police officer also needs to
be referred to the larger Bench, inasmuch as it is intermixed
D with a facet of the 1st issue as to whether such a statement is
to be treated as statement under Section 161 of the Code or it
partakes the character of statement under Section 164 of the
Code.
E 41. As far as this second related issue is concerned we
would also like to point out that Mr. Jain argued that provisions
of Section 67 of the Act cannot be interpreted in the manner in
which the provisions of Section 108 of the Customs Act or
Section 14 of the Excise Act had been interpreted by number
F of judgments and there is a qualitative difference between the
two sets of provisions. In so far as Section 108 of the Customs
Act is concerned, it gives power to the custom officer to
summon persons "to give evidence" and produce documents.
Identical power is conferred upon the Central Excise Officer
under Section 14 of the Act. However, the wording to Section
G 67 of the NDPS Act is altogether different. This difference has
been pointed out by Andhra Pradesh High Court in the Case
of Shahid Khan vs. Director of Revenue Intelligence; 2001
(Criminal Law Journal) 3183.
H 42. The Registry is accordingly directed to place the matter
TOFAN SINGH v. STATE OF TAMIL NADU 999
[A.K.SIKRI, J.]
before Hon'ble the Chief Justice for the decision of this appeal A
by a larger Bench after considering the issues specifically
referred as above.
43. We find from the record that as against the sentence
of 1O years awarded to the appellant he has already undergone
B
more than 9 years of sentence. In these circumstances, we
deem it a fit case to suspend further sentence till the disposal
of this appeal by the larger Bench. The appellant shall be
released on bail on furnishing security in the sum of Rs.50,000/
- (Rupees Fifty Thousand) with two sureties of the same amount, C
to the satisfaction of the trial court.
R.P. Matter referred to Larger Bench.
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