Tofan Singh VS State of Tamil Nadu

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.

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, with conviction upheld by High Court (!) [5000258750002]. - Prosecution relied on statements under Section 67 NDPS Act recorded by Intelligence Officer, which appellant retracted claiming coercion [5000258750006] (!) . - Trial court and High Court rejected defenses including retracted confessions, Section 50 non-compliance, and non-examination of drivers, upholding conviction [5000258750015][5000258750016]. - Core issue: Whether NDPS officers under Section 53 are "police officers" under Section 25 Evidence Act, making Section 67 statements inadmissible (!) (!) [5000258750025]. - Court noted conflicting precedents like Kanhaiyalal (officers not police) vs. Noor Aga (customs officers are police), distinguishing NDPS from Customs/Excise Acts [5000258750027][5000258750031]. - Section 67 empowers officers under Section 42 to call for information/examine persons, but its confessional value and police officer status require authoritative decision (!) (!) . - Issues referred to larger Bench: NDPS officers as police officers, evidentiary value of Section 67 statements, and use for conviction [5000258750039][5000258750040]. - Appellant granted bail after serving over 9 years, pending larger Bench decision [5000258750043].

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

Whether NDPS officers u/s 53 can record statement/confession u/s 67?

Whether conviction can be based on such statement/confession recorded u/s 67 by NDPS officers?

Legal Category Hierarchy

1. Whether an officer empowered under Section 42 or Section 53 of the NDPS Act qualifies as a 'police officer' for the purpose of Section 25 of the Indian Evidence Act?

The Court found the question substantial and referred it to a larger Bench for re-consideration, noting that the officer's status depends on whether they exercise powers of prevention and detection of crime, and that the ratio of Kanhaiyalal and Raj Kumar Karwal require re-examination in light of subsequent judgments. (Para 5000258750025 , 5000258750034 , 5000258750035 , 5000258750036 , 5000258750037 , 5000258750038 , 5000258750039 )

2. Whether a statement recorded under Section 67 of the NDPS Act constitutes admissible substantive evidence or is merely information akin to Section 161 CrPC?

The Court noted the appellant's submission that Section 67 only empowers an officer to call for information, not record confessions or substantive evidence, and that such statements are not recorded after oath and are not required to be truthful, rendering them inadmissible as substantive evidence for conviction. (Para 5000258750018 , 5000258750019 , 5000258750025 , 5000258750026 , 5000258750040 , 5000258750041 )

3. Whether non-compliance with Section 52(3) of the NDPS Act, where the same officer acts both under Section 42 and as investigating officer, vitiates the trial?

The appellant submitted that Section 52(3) requires an officer under Section 42 to forward the arrested person to an officer under Section 53 or an officer-in-charge of a police station, and that the same person cannot be both, making the investigation unfair and the conviction unsustainable. (Para 5000258750019 , 5000258750024 )

4. Whether non-compliance with Section 57 of the NDPS Act regarding reporting of arrest to the immediate superior officer vitiates the trial?

The appellant submitted that Section 57 requires the senior-most officer of the raiding party to report the arrest to his immediate superior, and that the failure to comply with this mandatory provision invalidates the safeguards of the Act and the resulting conviction. (Para 5000258750019 , 5000258750024 )

5. Whether a retracted confessional statement recorded under Section 67 of the NDPS Act can be the sole basis for conviction?

The appellant argued that the retracted Section 67 statement cannot sustain conviction and can only be used to corroborate other evidence, citing the ruling in Noor Aga v. State of Punjab that no conviction can be based on an uncorroborated retracted confessional statement. (Para 5000258750018 , 5000258750019 , 5000258750024 )

JUDGMENT

A.K. Sikri, J.—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 sitti

Click Here to Read the rest of this document

SUPREME COURT OF INDIA
A.K. Patnaik and A.K. Sikri, JJ.
Tofan Singh — Appellant
versus
State of Tamil Nadu — Respondent
Criminal Appeal No. 152 of 2013
Decided on : 8-10-2013

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 record statement/confession u/s 67?

Whether conviction can be based on such statement/confession recorded u/s 67 by NDPS officers?

Legal Category Hierarchy

Table of Contents

1. Whether an officer empowered under Section 42 or Section 53 of the NDPS Act qualifies as a 'police officer' for the purpose of Section 25 of the Indian Evidence Act?

2. Whether a statement recorded under Section 67 of the NDPS Act constitutes admissible substantive evidence or is merely information akin to Section 161 CrPC?

3. Whether non-compliance with Section 52(3) of the NDPS Act, where the same officer acts both under Section 42 and as investigating officer, vitiates the trial?

4. Whether non-compliance with Section 57 of the NDPS Act regarding reporting of arrest to the immediate superior officer vitiates the trial?

5. Whether a retracted confessional statement recorded under Section 67 of the NDPS Act can be the sole basis for conviction?

SUPREME COURT OF INDIAA.K. Patnaik and A.K. Sikri, JJ. Tofan Singh — AppellantversusState of Tamil Nadu — RespondentCriminal Appeal No. 152 of 2013Decided on : 8-10-2013

IMPORTANT POINTThe 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 record statement/confession u/s 67?

Whether conviction can be based on such statement/confession recorded u/s 67 by NDPS officers?

Legal Category Hierarchy

Table of Contents

1. Whether an officer empowered under Section 42 or Section 53 of the NDPS Act qualifies as a 'police officer' for the purpose of Section 25 of the Indian Evidence Act?

2. Whether a statement recorded under Section 67 of the NDPS Act constitutes admissible substantive evidence or is merely information akin to Section 161 CrPC?

3. Whether non-compliance with Section 52(3) of the NDPS Act, where the same officer acts both under Section 42 and as investigating officer, vitiates the trial?

4. Whether non-compliance with Section 57 of the NDPS Act regarding reporting of arrest to the immediate superior officer vitiates the trial?

5. Whether a retracted confessional statement recorded under Section 67 of the NDPS Act can be the sole basis for conviction?

Cases Referred (11)

SUPREME COURT OF INDIA
A.K. Patnaik and A.K. Sikri, JJ.
Tofan Singh — Appellant
versus
State of Tamil Nadu — Respondent
Criminal Appeal No. 152 of 2013
Decided on : 8-10-2013

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.