Judgement Briefs

Evidence Law

Tofan Singh v. State of Tamil Nadu

(2021) 4 SCC 1

Citation
(2021) 4 SCC 1
Court
Supreme Court of India
Date
29 October 2020
Bench
R.F. Nariman, Navin Sinha and Indira Banerjee JJ. (Indira Banerjee J. dissenting).

Facts

  • The judgment arose from a batch of NDPS cases in which investigating officers had recorded statements under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
  • Section 67 authorises certain officers to:
  • call for information;
  • require production of documents;
  • examine persons acquainted with relevant facts.
  • In several prosecutions, the statements recorded under Section 67 contained admissions or confessions connecting the persons examined with narcotic offences.
  • Convictions were substantially supported by those statements.
  • Earlier Supreme Court decisions had produced conflicting approaches.
  • Some judgments treated NDPS officers as different from ordinary police officers because they belonged to:
  • customs;
  • revenue intelligence;
  • narcotics departments.
  • On that reasoning, confessions made to them were treated as outside Section 25 of the Evidence Act.
  • Other decisions focused on the actual powers exercised by such officers, including:
  • search;
  • seizure;
  • arrest;
  • investigation;
  • filing of complaints.
  • The matter was referred to a larger Bench to determine:
  • whether officers invested with powers under Section 53 NDPS Act are “police officers”;
  • whether confessional statements under Section 67 are admissible.

Issue

  • Whether an officer empowered under Section 53 NDPS Act is a police officer for Section 25 Evidence Act.
  • Whether a confessional statement recorded under Section 67 can be used against its maker at trial.
  • Whether Section 67 itself authorises the recording of confessions.

Rule

  • Section 25 Evidence Act, now substantially Section 23(1) BSA, excludes confessions made to police officers.
  • Whether an officer is a police officer depends upon the substance of the powers exercised, not merely:
  • departmental name;
  • uniform;
  • formal designation.
  • Officers empowered under Section 53 perform important investigative functions similar to police investigation.
  • Section 67 is an information-gathering provision.
  • It does not expressly authorise:
  • interrogation for confession;
  • recording a confession from a person accused of an offence.
  • A person cannot be convicted on a statement made to such an officer where the protections against police confessions apply.
  • Independent evidence, recoveries and other legally admissible material remain usable.
  • Information distinctly leading to discovery may be examined separately under the limited discovery rule.

Application

  • The majority adopted a functional approach.
  • NDPS officers under Section 53 can:
  • investigate serious offences;
  • search persons and premises;
  • seize contraband;
  • arrest suspects;
  • collect evidence;
  • initiate prosecution.
  • The risk against which Section 25 protects an accused arises from coercive investigative authority.
  • That risk does not disappear merely because the officer belongs to the Narcotics Control Bureau or another specialised department.
  • Treating the same confession differently depending on the officer’s departmental title would defeat the protection.
  • The majority also examined Section 67 itself.
  • Its language permits calling for information during an inquiry.
  • It does not state that an officer may compel an accused to confess.
  • Once a person becomes an accused or is treated as the offender, a self-incriminating statement obtained through investigative questioning attracts confession safeguards.
  • The majority emphasised the severe punishments and reverse presumptions under the NDPS Act.
  • These features made strict observance of evidentiary safeguards particularly important.
  • A conviction cannot be built by:
  • obtaining a Section 67 confession;
  • treating it as substantive evidence;
  • using statutory presumptions to complete the case.
  • The prosecution must prove possession and involvement through independent admissible evidence.
  • Indira Banerjee J. dissented.
  • She considered the statutory position and earlier precedent sufficient to distinguish NDPS officers from police officers.
  • The majority view became the binding rule.

Conclusion

  • By a 2:1 majority, the Supreme Court held that officers invested with powers under Section 53 NDPS Act are police officers for purposes of Section 25 Evidence Act.
  • A confessional statement recorded under Section 67 NDPS Act cannot be used as a confession against the person accused.
  • Section 67 does not authorise extraction of confessions.
  • Convictions must rest upon independent admissible evidence, subject to the limited discovery exception where legally applicable.
  • Earlier decisions taking a contrary view were overruled.