# TOFAN SINGH v. STATE OF TAMIL NADU

- **Citation:** [2013] 9 S.C.R. 962
- **Court:** Supreme Court of India
- **Decided:** 2013-10-08
- **Case number:** Criminal Appeal No. 152 of 2013
- **Bench:** A.K. Patnaik, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tofan-singh-v-state-of-tamil-nadu-29340
- **Pages:** 38

## Headnote

NARCOTIC
DRUGS
AND
PSYCHOTROPIC
SUBSTANCES ACT, 1985:
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
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
A
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
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]
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
D
E
~.
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 possess

## Text

_Characters 0–39,969 of 69,578. This is a partial read: ask again with offset=39969 for what follows._

A
B
c
[2013] 9 S.C.R. 962
TOFAN SINGH
v.
STATE OF TAMIL NADU
(Criminal Appeal No. 152 of 2013)
OCTOBER 08, 2013
[A.K. PATNAIK AND A.K. SIKRI, JJ.]
NARCOTIC
DRUGS
AND
PSYCHOTROPIC
SUBSTANCES ACT, 1985:
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
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
A
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
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]
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
D
E
~.
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
G
(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 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.
Queen Empress v. Babula/ I.LR (1884). 6 All. 509 -
referred to.
E
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
B
1987 (1) SCR 1095
relied on
para 33
(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
A
B
c
. D
E
F
G
H
970
SUPREME COURT REPORTS
[2013] 9 S.C.R.
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
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.
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 .
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
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
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
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
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
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
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.
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
E
F
G
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
8 without registering himself as a foreigner. The heroin, which
was seized, was being taken for the said export which was
intercepted in the manner stated below:-
c
D
E
F
G
H
"As per the prosecution, after the information was received
by Mr. L.S. Aruldoss, Intelligence Officer (P.W.9) on
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
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
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
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, A2 and Rajesh and the place of travel from Mumbai to
madras and another passenger name through it was
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
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
translation of voluntary statement of A-3, Ex. P-78 of which
B
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 Ahas 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
E
F
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
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 07425284050 through which he used to contact A-3 and Guddu
H
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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
27 A 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
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
[A.K.SIKRI, J.]
the NDPS Act had been retracted and so, they had A
no evidentiary value.
There was violation of Section 50 of the NDPS Act
as there was non-compliance of the provisions
thereof.
B
Driver of the vehicle was not examined which was
fatal to the prosecution case.
Sample sent for analysis and the seized contraband
were not one and the same.
c
There was no link evidence which vitiated the trial.
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.
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.
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
D
E
(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?
(iii)
Whether non-examination of drivers and nonseizure of vehicle/ car are fatal to the case of the
prosecution?
(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.
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:
8
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.
(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
F
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
A
B
c
978
SUPREME COURT REPORTS
[2013] 9 S.C.R.
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.
(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
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:-
E
F
G
H
(!) It was argued that the conviction of the appellant is
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:
(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
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)
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
A
B
c
D
E
F
G
H
980
SUPREME COURT REPORTS
[2013] 9 S.C.R.
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.
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 ;
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.
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
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
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
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
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
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.
(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
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.
(II)
Next submission of Mr. Jain was that there was
complete absence of Fair Investigation and Noncompliance of the provisions of Section 52(3) of the
ActB
c
D
E
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-incharge 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
0
from the scheme of NDPS Act. It was submitted that since
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.