IMPORTANT POINT
The question whether NDPS officers u/s 53 can record statement/confession u/s 67 and whether conviction can be based on such statement/confession referred to larger Bench.

Headnote:NDPS 1985 – Section 53 – Investigating officers – Whether Police Officers – And whether empowered to record statements/ confessions of accused – Whether such records have evidentiary value or are they hit by section 25 of Evidence Act – Police officers basically charged with duties of preventing and detecting crime – Whether Investigating officers under NDPS Act can be treated as police officers – Courts differing in context of Customs Act and Excise Act – Scheme and language of NDPS Act different from Customs and Excise Acts – Matter needs to be authoritatively decided – Matters whether officers under section 53 of NDPS Act can be treated as police officers and whether they can record statements/confessions u/s 67; and whether such records will have evidentiary value referred to larger Bench. (Para 39)
        (1966) 3 SCR 698; (1964) 2 SCR 752; (1962) 3 SCR 338; 2008 (9) SCALE 681; (2008) 4 SCC 668; (1990) 2 SCC 409; (2001) 9 SCC 578; (1997) 1 SCC 416; (2009) 12 SCC 161; (1987) 1 SCC 533; (2011) 12 SCC 298; 2001 Cr L J 3183 – Referred
       Facts of the case:
        Appellant was convicted under Section 8 (c) read with Section 21 & 29 of the NDPS Act, 1985.
        The conviction has been upheld by the High Court.
        The question that arises in this case is whether NDPS officers u/s 53 can record statement/confession u/s 67 and whether conviction can be based on such statement/confession.
       Finding of the Court:
        In view of differing opinions the matter needs to be decided authoritatively.
       Result : Matter referred to larger Bench.

Judgement Key Points

Key Points: - Tofan Singh convicted under Sections 8(c), 21(c), and 29 of NDPS Act for possessing 5.250 kg heroin intended for export; conviction upheld by High Court (!) (!) . - Prosecution relied on voluntary statements under Section 67 NDPS Act recorded by Intelligence Officer, including appellant's confession (!) (!) . - Core issue: Whether NDPS officers empowered under Section 53 are "police officers" and if their Section 67 statements/confessions are inadmissible under Section 25 Evidence Act (!) (!) . - Court noted conflicting precedents on whether NDPS/customs/excise officers are police officers, distinguishing NDPS Act's penal scheme (!) (!) . - Section 67 NDPS Act empowers officers under Section 42 to call for information, examine persons, but its scope compared to Customs Act Section 108 and Excise Act Section 14 debated (!) (!) . - Trial court and High Court rejected defenses like retracted confessions, Section 50/42/57 non-compliance, but Supreme Court focused on evidentiary value of Section 67 statements (!) (!) . - Court doubted prior rulings like Kanhaiyalal (2008) 4 SCC 668, preferring re-examination in light of Noor Aga and Constitution Bench precedents (!) (!) . - Matter referred to larger Bench to authoritatively decide if NDPS investigating officers are police officers and if Section 67 statements have confessional evidentiary value (!) (!) . - Appellant granted bail pending larger Bench decision after undergoing over 9 years of 10-year sentence (!) .

What is the evidentiary value of statements/confessions recorded by NDPS officers u/s 67?

Whether NDPS officers u/s 53 can be treated as police officers?

Whether conviction can be based on statements recorded by NDPS officers u/s 67?

JUDGMENT

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 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 convicting him under the provisions of the NDPS Act, the learned Special Judge sentenced the appellant to undergo 10 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 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, Addl. Special Court, has been dismissed by 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, Addl. 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 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.

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 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 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 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, 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. L.S. Aruldoss, the Intelligence 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 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 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. O

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2013 Supreme(SC) 958

SUPREME COURT OF INDIAA.K. PATNAIK & A.K. SIKRI, JJ.TOFAN SINGH - APPELLANTVERSUSSTATE OF TAMIL NADU - RESPONDENTCRIMINAL APPEAL NO. 152 OF 2013Decided On : October 8, 2013

IMPORTANT POINT The question whether NDPS officers u/s 53 can record statement/confession u/s 67 and whether conviction can be based on such statement/confession referred to larger Bench.

What is the evidentiary value of statements/confessions recorded by NDPS officers u/s 67?

Whether NDPS officers u/s 53 can be treated as police officers?

Whether conviction can be based on statements recorded by NDPS officers u/s 67?

Cases Referred (11)

SUPREME COURT OF INDIA
A.K. PATNAIK & A.K. SIKRI, JJ.
TOFAN SINGH - APPELLANT
VERSUS
STATE OF TAMIL NADU - RESPONDENT
CRIMINAL APPEAL NO. 152 OF 2013
Decided On : October 8, 2013

IMPORTANT POINT
The question whether NDPS officers u/s 53 can record statement/confession u/s 67 and whether conviction can be based on such statement/confession referred to larger Bench.