Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 Supreme(SC) 646

ROHINTON FALI NARIMAN, NAVIN SINHA, INDIRA BANERJEE
TOFAN SINGH – Appellant
Versus
STATE OF TAMIL NADU – Respondent

Advocates Appeared:
For the Appellant :Pratibha Jain, K. Sarada Devi, Kanchan Kaur Dhodi, Nachiketa Joshi, Uday Gupta, Shivani M. Lal, Hiren Dasan, M. K. Tripathi, Chand Qureshi, Mohan Pandey, Ranjan Kumar, Anand Grover, Sushil Balwada, Sanjay Jain, Abhishek Singh, Shreshth Arya, Amit Bhalla, S. Nagamuthu, Prabu Ramasubramanian, K. Paari Vendhan, Y. Arunagiri, B. Balaji Advocate, M.P. Parthiban, Raghunatha Sethupathy, Karuppiah Meyyappan, K. Malar Vendhan, G. Murugendran, Vairavan, Sudhakar, Hardik Gautam, ArunPrakash, Santose, Advocates
For the Respondent:Aman Lekhi, A.K. Srivastav, R. Balasubramanian, Vibhu Shanker Mishra, Suhashini Sen, Ranjana Narayan, Ritwiz Rishabh, Harish Pandey, B. V. Balaram Das, B. Krishna Prasad, Saurabh Mishra, Arjun Garg, Shrutika Garg, Shreeyash U. Lalit, Jaspreet Gogia, Manish Vashishtha, Amit K. Nain, C. K. Sasi, Kuldip Singh, Aniruddha P. Mayee, Anil Katiyar, Liz Mathew, Advocates

Judgement Key Points

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What is the scope and status of Section 67 and Section 53 in the NDPS Act, and whether statements/confessions recorded there can be used for conviction?

What is the definition of a "police officer" for the purposes of Section 25 of the Indian Evidence Act in the context of NDPS Act officers designated under Sections 41/42 or 53, and can confessional statements made to them be used against an accused?

How does the NDPS Act interact with the CrPC in terms of investigation, inquiry, and filing of police reports or complaints for cognizance by Special Courts, and what is the correct mode of cognizance under Section 36A(1)(d) versus Section 190 CrPC?

JUDGMENT

R.F. Nariman. J.

These Appeals and Special Leave Petitions arise by virtue of a reference order of a Division Bench of this Court reported as Tofan Singh vs. State of Tamil Nadu (2013) 16 SCC 31. The facts in that appeal have been set out in that judgment in some detail, and need not be repeated by us. After hearing arguments from both sides, the Court recorded that the Appellant in Criminal Appeal No.152 of 2013 had challenged his conviction primarily on three grounds, as follows:

"24.1. The conviction is based solely on the purported confessional statement recorded under Section 67 of the NDPS Act which has no evidentiary value inasmuch 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 Evidence Act.

(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 statement recorded under this provision is akin to the statement under Section 161 CrPC.

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Judicial Analysis

Upon careful analysis of the provided case law list, the primary focus is the evolution of the law regarding the admissibility of confessional statements recorded under Section 67 of the NDPS Act. The landmark case of *Tofan Singh v. State of Tamil Nadu* [(2021) 4 SCC 1] has fundamentally changed the landscape of this legal issue.

The following cases contain propositions of law that identified Section 67 NDPS confessional statements as admissible or sufficient for conviction, which has been overruled by *Tofan Singh v. State of Tamil Nadu*:

* **Kanhaiyalal VS Union of India - 2008 1 Supreme 112**: States "Conviction can be made solely on the basis of confession u/s 67, NDPS Act, 1985." This proposition is now bad law following the majority decision in *Tofan Singh*.

* **TOFAN SINGH VS STATE OF TAMIL NADU - 2013 8 Supreme 473**: Acknowledges that the issue (recordability and evidentiary value of S.67 statements) was "referred to larger Bench." This reference resulted in the *Tofan Singh* judgment which definitively held these statements inadmissible.

**Followed / Cited as Authoritative Precedent:**

The overwhelming majority of the provided entries cite *Tofan Singh v. State of Tamil Nadu* (2021) 4 SCC 1 as the prevailing, binding authority. These cases consistently apply the ratio that "a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial."

* **Illustrative Examples:** Intelligence Officer, N. C. B. Jammu VS Vijay Kumar - 2021 0 Supreme(J&K) 427, Krishna Devi VS State of Punjab - 2021 0 Supreme(P&H) 475, Mamta And Other VS State Of Delhi And Other - 2021 0 Supreme(Del) 869, Bharat Chaudhary VS Union of India - 2022 3 Supreme 171, Sadiq Basha VS State by The Intelligence Officer, Narcotics Control Bureau Chennai Zonal Unit Chennai - 2022 0 Supreme(Mad) 3188, and hundreds of similar entries cite *Tofan Singh* to reject the admissibility of confession statements made to empowered officers.

* **Reasoning:** These cases are grouped as "Followed" because they utilize *Tofan Singh* to determine the inadmissibility of statements or to grant bail/discharge based on the lack of admissible evidence.

**Consistent Principles (Other cited authorities):**

* **(Selvi v. State of Karnataka)**: Cited as a landmark regarding "testimonial compulsion" and the inadmissibility of involuntary scientific tests. Remains good law and is "Followed" in judicial discourse regarding the protection of Article 20(3).

* **State Of Punjab VS Baldev Singh - 1999 6 Supreme 159**: Discusses the mandates of Section 50 of the NDPS Act. These principles regarding search procedures remain valid and are frequently referenced in the context of due process alongside the *Tofan Singh* requirements.

* **(Section 5A of Prevention of Corruption Act, 1947)**: The snippet mentions the mandatory nature of this section but does not provide details of its treatment in recent cases.

* **(Privacy Case)**: Mentions that *M P Sharma* and *Kharak Singh* stand "over-ruled" in the context of the right to privacy. While the status of *M P Sharma* and *Kharak Singh* is identified as overruled in this text, their specific relation to the NDPS/Tofan Singh line of cases is tangential.

* **State Of Punjab VS Barkat Ram - 1961 0 Supreme(SC) 298**: States "A Customs Officer is not a police officer within the meaning of S. 25 of the Evidence Act." While this was a long-standing view, the *Tofan Singh* judgment re-evaluated the status of officers invested with powers under Section 53 of the NDPS Act. The provided snippet does not explicitly state if this specific precedent has been superseded, though logically it is heavily impacted by the *Tofan Singh* interpretation.