# TOFAN SINGH v. STATE OF TAMIL NADU

- **Citation:** [2020] 12 S.C.R. 583
- **Court:** Supreme Court of India
- **Decided:** 2020-10-29
- **Case number:** Criminal Appeal No. 152 of 2013
- **Bench:** R. F. Nariman, Navin Sinha, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tofan-singh-v-state-of-tamil-nadu-34539
- **Pages:** 292

## Headnote

Narcotic Drugs and Psychotropic Substances Act, 1985:
ss. 42, 53 and 67 - Power under s. 67 - Extent, nature,
purpose and scope of - Confession made under - Before the officers
designated u/ss. 42 or 53 - Whether admissible as a substantive
evidence - Held: Statement recorded under s. 67 cannot be admitted
as a substantive evidence - To hold that such statement can be the
basis to convict a person under the Act would be a direct infringement
of the constitutional guarantees contained in Arts. 14, 20(3) and
21 of the Constitution.
Evidence Act, 1872:
s.25 - Officers invested with powers u/s. 53 of NDPS Act -
Are 'Police Officers' within the meaning of s. 25 - Therefore, any
confessional statement made to such officers, would be barred u/s.
25.
s.25 - 'Police Officers' - s. 25 - Held: Expression 'Police
Officers' in s.25 does not only mean a police officer who belongs to
State Police force, but includes officers who may belong to other
departments - Where limited powers of investigation are given to
officers for some purpose other than the prevention and detection
of crime, such persons cannot be said to be police officers - Where
a person, not a police officer properly so called, if invested with all
powers of investigation, which culminates in filing of police report,
such person can be called police officer.
Interpretation of statutes:
Marginal note - Is an important internal tool for indicating
the meaning and purpose of a Section in a statute.
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SUPREME COURT REPORTS
[2020] 12 S.C.R.
Words and Phrases:
'Enquiry' - Meaning of
Expression 'Custody' - Meaning of - Distinction from the
expression 'arrest'.
'Police Officer' - Meaning in the context of s. 25 of Evidence
Act.
Answering the Reference, the Court
PER R. F. NARIMAN, J (FOR HIMSELF AND NAVIN
SINHA, J.)
HELD: 1.1. The Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS Act) is to be construed in the
backdrop of Article 20(3) and Article 21 of the Constitution of
India. The fundamental rights contained in Articles 20(3) and 21
are given pride of place in the Constitution. By the 44th
Amendment to the Constitution, it is now provided that even in
an Emergency, these rights cannot be suspended - see Article
359(1). The interpretation of a statute like the NDPS Act must
be in conformity and in tune with the spirit of the broad
fundamental right not to incriminate oneself, and the right to
privacy. A delicate balance is maintained between the power of
the State to maintain law and order, and the fundamental rights
chapter which protects the liberty of the individual. Several
safeguards are thus contained in the NDPS Act, which is of an
extremely drastic and draconian nature. [Para 27][662-F-G]
1.2 Section 25 of Evidence Act, 1872 states that a confession
made to any police officer, whatever his rank, cannot be relied
upon against a person accused of any offence. "Police officer" is
not defined in the Evidence Act or in any cognate criminal statute.
Section 25 is to be viewed in contrast to section 24, given the
situation in India of the use of torture and third-degree measures.
Unlike section 24, any confession made to a police officer cannot
be used as evidence against a person accused of an offence, the
voluntariness or otherwise of the confession being irrelevant - it
is conclusively presumed by the legislature that all such
confessions made to police officers are tainted with the vice of
coercion. [Para 29][664-B-D]
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The 'First Report of Her Majesty's Commissioners
Appointed to Consider the Reform of the Judicial
Establishments, Judicial Procedure and Laws of India
& C.' (1856) - referred to.
1.3 The interpretation of the term "accused" in section 25
of the Evidence Act is materially different from that contained in
Article 20(3) of the Constitution. The scope of the section is not
limited by time - it is immaterial that the person was not an
accused at the time when the confessional statement was made.
Thus, whereas a formal

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[2020] 12 S.C.R. 583
583
TOFAN SINGH
v.
STATE OF TAMIL NADU
(Criminal Appeal No. 152 of 2013 Etc.)
OCTOBER 29, 2020
[R. F. NARIMAN, NAVIN SINHA AND
INDIRA BANERJEE, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985:
ss. 42, 53 and 67 - Power under s. 67 - Extent, nature,
purpose and scope of - Confession made under - Before the officers
designated u/ss. 42 or 53 - Whether admissible as a substantive
evidence - Held: Statement recorded under s. 67 cannot be admitted
as a substantive evidence - To hold that such statement can be the
basis to convict a person under the Act would be a direct infringement
of the constitutional guarantees contained in Arts. 14, 20(3) and
21 of the Constitution.
Evidence Act, 1872:
s.25 - Officers invested with powers u/s. 53 of NDPS Act -
Are 'Police Officers' within the meaning of s. 25 - Therefore, any
confessional statement made to such officers, would be barred u/s.
25.
s.25 - 'Police Officers' - s. 25 - Held: Expression 'Police
Officers' in s.25 does not only mean a police officer who belongs to
State Police force, but includes officers who may belong to other
departments - Where limited powers of investigation are given to
officers for some purpose other than the prevention and detection
of crime, such persons cannot be said to be police officers - Where
a person, not a police officer properly so called, if invested with all
powers of investigation, which culminates in filing of police report,
such person can be called police officer.
Interpretation of statutes:
Marginal note - Is an important internal tool for indicating
the meaning and purpose of a Section in a statute.
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E
F
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584
SUPREME COURT REPORTS
[2020] 12 S.C.R.
Words and Phrases:
'Enquiry' - Meaning of
Expression 'Custody' - Meaning of - Distinction from the
expression 'arrest'.
'Police Officer' - Meaning in the context of s. 25 of Evidence
Act.
Answering the Reference, the Court
PER R. F. NARIMAN, J (FOR HIMSELF AND NAVIN
SINHA, J.)
HELD: 1.1. The Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS Act) is to be construed in the
backdrop of Article 20(3) and Article 21 of the Constitution of
India. The fundamental rights contained in Articles 20(3) and 21
are given pride of place in the Constitution. By the 44th
Amendment to the Constitution, it is now provided that even in
an Emergency, these rights cannot be suspended - see Article
359(1). The interpretation of a statute like the NDPS Act must
be in conformity and in tune with the spirit of the broad
fundamental right not to incriminate oneself, and the right to
privacy. A delicate balance is maintained between the power of
the State to maintain law and order, and the fundamental rights
chapter which protects the liberty of the individual. Several
safeguards are thus contained in the NDPS Act, which is of an
extremely drastic and draconian nature. [Para 27][662-F-G]
1.2 Section 25 of Evidence Act, 1872 states that a confession
made to any police officer, whatever his rank, cannot be relied
upon against a person accused of any offence. "Police officer" is
not defined in the Evidence Act or in any cognate criminal statute.
Section 25 is to be viewed in contrast to section 24, given the
situation in India of the use of torture and third-degree measures.
Unlike section 24, any confession made to a police officer cannot
be used as evidence against a person accused of an offence, the
voluntariness or otherwise of the confession being irrelevant - it
is conclusively presumed by the legislature that all such
confessions made to police officers are tainted with the vice of
coercion. [Para 29][664-B-D]
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The 'First Report of Her Majesty's Commissioners
Appointed to Consider the Reform of the Judicial
Establishments, Judicial Procedure and Laws of India
& C.' (1856) - referred to.
1.3 The interpretation of the term "accused" in section 25
of the Evidence Act is materially different from that contained in
Article 20(3) of the Constitution. The scope of the section is not
limited by time - it is immaterial that the person was not an
accused at the time when the confessional statement was made.
Thus, whereas a formal accusation is necessary for invoking the
protection under Article 20(3), the same would be irrelevant for
invoking the protection under section 25 of the Evidence Act.
[Paras 31 and 33][665-B-C; 666-D]
1.4 Section 26 of the Evidence Act extends the protection
to confessional statements made by persons while "in the
custody" of a police-officer, unless it be made in the immediate
presence of a Magistrate. "Custody" is not synonymous with
"arrest" - custody could refer to a situation pre-arrest. In fact,
section 46 of the CrPC speaks of "a submission to the custody
by word or action", which would, inter alia, refer to a voluntary
appearance before a police officer without any formal arrest being
made. [Para 34][666-D-F]
State of Bombay v. Kathi Kalu Oghad and Ors. [1963]
2 SCR 10; State of U.P. v. Deoman Upadhyaya [1961]
1 SCR 14; K.S. Puttaswamy and Anr. v. Union of India
and Ors. (2017) 10 SCC 1: [2017] 10 SCR 569 -
followed.
Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424: [1978]
3 SCR 608; Selvi v. State of Karnataka (2010) 7 SCC
263; State of U.P. v. Deoman Upadhyaya [1961] 1 SCR
14; Agnoo Nagesia v. State of Bihar [1966] 1 SCR 134;
State of Haryana and Ors. v. Dinesh Kumar (2008) 3
SCC 222: [2008] 1 SCR 281 - relied on.
M.P. Sharma and Ors. v. Satish Chandra [1954] SCR
1077 - stood overruled.
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2.1 The interplay between the CrPC and the provisions of
the NDPS Act is contained in several provisions. CrPC has been
expressly excluded when it comes to suspension, remission or
commutation in any sentence awarded under the NDPS Act - see
Section 32A. Equally, nothing contained in section 360 of the
CrPC or in the Probation of Offenders Act, 1958 is to apply to a
person convicted of an offence under the NDPS Act, subject to
the exceptions that such person is under 18 years of age, and
that that offence only be punishable under section 26 or 27 of the
NDPS Act - see section 33. On the other hand, CrPC has been
made expressly applicable by sections 34(2), 36B, 50(5) and 51
of NDPS Act. Equally, CrPC has been applied with necessary
modifications under sections 36A(1)(b), 37(1)(b) and 53A of NDPS
Act. Read with sections 4(2) and 5 of CrPC, the scheme of the
NDPS Act seems to be that CrPC is generally followed, except
where expressly excluded, or applied with modifications. [Paras
37 and 38][668-A-C; D-F]
2.2 Given the stringent nature of the NDPS Act, several
sections provide safeguards so as to provide a balance between
investigation and trial of offences under the Act, and the
fundamental rights of the citizen. Several safeguards are contained
in section 42. From this section it is clear that only when the
concerned officer has "reason to believe" from personal
knowledge or information given by any person and taken down
in writing that an offence has been committed, that the concerned
officer may, only between sunrise and sunset, enter, search, seize
drugs and materials, and arrest any person who he believes has
committed any offence. By the first proviso, this can be done
only by an officer not below the rank of sub-inspector. Under
sub-section (2) in addition, where the information in writing is
given, the officer involved must send a copy thereof to his
immediate official superior within seventy-two hours. It is
important here to contrast "reason to believe" with the
expression "reason to suspect", which is contained in section 49
of the NDPS Act. [Paras 45 and 46][674-B; 675-E-H]
A.S. Krishnan v. State of Kerala (2004) 11 SCC 576 :
[2004] 3 SCR 44 - relied on.
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2.3 Section 50 of the NDPS Act contains extremely
important conditions under which a search of persons shall be
conducted. Section 52(1)-(3) contains three separate safeguards,
insofar as disposal of persons arrested and articles seized are
concerned. Section 57 then speaks of a person making an arrest
or seizure having to make a full report of all the particulars of
such arrest or seizure to his immediate official superior within
forty-eight hours. Equally, under section 57A, whenever any
officer notified under section 53 makes an arrest or seizure under
the Act, the officer shall make a report of the illegally acquired
properties of such person to the jurisdictional competent authority
within ninety days of the arrest or seizure. Section 58 more than
any other provision, makes it clear that a person's privacy is not
to be trifled with, because if it is, the officer who trifles with it is
himself punishable under the provision. Under section 63, which
contains the procedure in making confiscations, the first proviso
to sub-section (2) makes it clear that no order of confiscation of
an article or thing shall be made until the expiry of one month
from the date of seizure, or without hearing any person who may
claim any right thereto and the evidence which he produces in
respect of his claim. [Paras 47, 52, 53 and 54][676-D-E; 685-GH; 686-A-B, F-G]
State of Punjab v. Baldev Singh (1999) 6 SCC 172 :
[1999] 3 Suppl. SCR 174 - followed.
Vijaysinh Chandubha Jadeja v. State of Gujarat (2011)
1 SCC 609 : [2010] 13 SCR 255 - referred to.
2.4 The NDPS Act is predominantly a penal statute. Given
the stringent provisions of the NDPS Act, together with the
safeguards mentioned in the provisions, the statutes like the
NDPS Act have to be construed bearing in mind the fact that the
severer the punishment, the greater the care taken to see that
the safeguards provided in the statute are scrupulously followed.
[Para 55][686-H; 687-A]
State of Punjab v. Baldev Singh (1999) 6 SCC 172:
[1999] 3 Suppl. SCR 174 - followed.
TOFAN SINGH v. STATE OF TAMIL NADU
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Directorate of Revenue and Anr. v. Mohammed Nisar
Holia (2008) 2 SCC 370; Union of India v. Bal Mukund
(2009) 12 SCC 161: [2009] 5 SCR 205 - relied on.
3.1 The marginal note to section 67 NDPS Act indicates
that it refers only to the power to "call for information, etc." A
marginal note is an important internal tool for indicating the
meaning and purpose of a section in a statute, as it indicates the
"drift" of the provision. [Para 59]]689-F]
K.P. Varghese v. Income Tax Officer, Ernakulam and
Anr. (1981) 4 SCC 173 : [1982] 1 SCR 629 - relied
on.
3.2 It is only an officer referred to in section 42 of NDPS
Act who may use the powers given under section 67 in order to
make an "enquiry" in connection with the contravention of any
provision of this Act. The word "enquiry" has been used in section
67 to differentiate it from "inquiry" as used in section 53A, which
is during the course of investigation of offences. The notifications
issued under the Act soon after the Act came into force,
specifically speak of the powers conferred under section 42(1)
read with section 67. This is an important executive reading of
the NDPS Act, which makes it clear that the powers to be exercised
under section 67 are to be exercised in conjunction with the
powers that are delineated in section 42(1). [Para 60][690-B-D]
Desh Bandhu Gupta & Co. v. Delhi Stock Exchange
Assn. Ltd. (1979) 4 SCC 565: [1979] 3 SCR 373 -
referred to.
3.3 The officer referred to in section 42 is given powers of
entry, search, seizure and arrest without warrant, with the
safeguards. The first safeguard is that such officer must have
"reason to believe", which is different from mere "reason to
suspect". It is for this reason that such officer must make an
enquiry in connection with the contravention of the provisions of
this Act, for otherwise, even without such enquiry, mere suspicion
of the commission of an offence would be enough. It is in this
enquiry that he has to call for "information" under sub-clause
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(a), which "information" can be given by any person and taken
down in writing, as is provided in section 42(1). Further, the
information given must be for the purpose of "satisfying" himself
that there has been a contravention of the provisions of this Act,
which again goes back to the expression "reason to believe" in
section 42. Therefore, it cannot be said that "enquiry" in section
67 is the same as "investigation", which is referred to in section
53. [Para 61][691-C-F]
3.4 By virtue of section 2(xxix) of the NDPS Act, the
definition u/s. 2(h) becomes applicable to the use of the expression
"investigation" in section 53 of the NDPS Act. It is an inclusive
definition, by which, "evidence" is collected by a police officer or
a person authorised by the Magistrate. The "enquiry" that is
made by a section 42 officer is so that such officer may gather
"information" to satisfy himself that there is "reason to believe"
that an offence has been committed in the first place. This
becomes even clearer from section 52(3), whereunder every
person arrested and article seized under sections 41 to 44 shall
be forwarded without unnecessary delay either to the officer-incharge of the nearest police station, who must then proceed to
"investigate" the case given to him, or to the officer empowered
under section 53 of the NDPS Act, which officer then
"investigates" the case in order to find out whether an offence
has been committed under the Act. It is clear, therefore, that
section 67 is at an antecedent stage to the "investigation", which
occurs after the concerned officer under section 42 has "reason
to believe", upon information gathered in an enquiry made in
that behalf, that an offence has been committed. [Paras 63 and
64][692-C-G]
3.5 In section 67(c) of the NDPS Act, the expression used
is "examine" any person acquainted with the facts and
circumstances of the case. The "examination" of such person is
again only for the purpose of gathering information so as to satisfy
himself that there is "reason to believe" that an offence has been
committed. This can, by no stretch of imagination, be equated to
a "statement" under section 161 of the CrPC. [Para 65][692-GH]
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Sahoo v. State of U.P. [1965] 3 SCR 86 - held not
applicable.
3.6 Equating confession u/s. 67 as statement u/s. 161 Cr.
P.C. flies in the face of the fundamental rights contained in Articles
20(3) and 21, as well as the scheme of the NDPS Act, together
with the safeguards. First and foremost, a police officer, properly
so-called, may be authorised to call for information etc. under
section 67, as he is an officer referred to in section 42(1). Yet,
while "investigating" an offence under the NDPS Act i.e.
subsequent to the collection of information etc. under section 67,
the same police officer will be bound by sections 160-164 of the
CrPC, together with all the safeguards mentioned therein - firstly,
that the person examined shall be bound to answer truly all
questions relating to such case put to him, other than questions
which would tend to incriminate him; secondly, the police officer
is to reduce this statement into writing and maintain a separate
and true record of this statement; thirdly, the statement made
may be recorded by audio-video electronic means to ensure its
genuineness; and fourthly, a statement made by a woman can
only be made to a woman police officer or any woman officer.
Even after all these safeguards are met, no such statement can
be used at any inquiry or trial, except for the purpose of
contradicting such witness in cross-examination. [Para 66][693B-E]
Tahsildar Singh v. State of U.P. [1959] Supp (2) SCR
875 - followed.
3.7 If a confessional statement made under section 67 is
considered sufficient as substantive evidence to convict an
accused under the NDPS Act, section 53A would be rendered
otiose. Sections 53 and 53A of the NDPS Act, when read together,
would make it clear that section 53A is in the nature of an
exception to sections 161, 162 and 172 of the CrPC. This is for
the reason that section 53(1), when it invests certain officers or
classes of officers with the power of an officer in charge of a police
station for investigation of offences under the NDPS Act, refers
to Chapter XII of the CrPC, of which sections 161, 162 and 172
are a part. First and foremost, under section 162(1) of the CrPC,
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statements that are made in the course of investigation are not
required to be signed by the person making them - under section
53A they can be signed by the person before an officer empowered
under section 53. Secondly, it is only in two circumstances [under
section 53A(1)(a) and (b)] that such a statement is made relevant
for the purpose of proving an offence against the accused: it is
only if the person who made the statement is dead, cannot be
found, is incapable of giving evidence; or is kept out of the way
by the adverse party, or whose presence cannot be obtained
without delay or expense which the court considers unreasonable,
that such statement becomes relevant. Otherwise, if the person
who made such a statement is examined as a witness, and the
court thinks that in the interest of justice such statement should
be made relevant and does so, then again, such statement may
become relevant. None of this would be necessary if a confessional
statement made under section 67 - not being bound by any of
these constraints - would be sufficient to convict the accused.
[Para 72][697-D-H; 698-A-B]
H.N. Rishbud and Inder Singh v. State of Delhi [1955]
1 SCR 1150 - relied on.
Mukesh Singh v. State (Narcotic Branch of Delhi) 2020
SCC OnLine SC 700 - distinguished.
Mohan Lal v. State of Punjab (2018) 17 SCC 627:
[2018] 9 SCR 1006; State v. V. Jayapaul (2004) 5 SCC
223 - referred to.
3.8 An officer-in-charge of a police station, when he
investigates an offence, begins by gathering information, in the
course of which he may collect evidence relating to the
commission of the offence, which would include search and seizure
of things in the course of investigation, to be produced at the
trial. Under the scheme of the NDPS Act, it is possible that the
same officer who is authorised under section 42 is also authorised
under section 53. The Notifications S.O. 822 (E) and S.O. 823
(E) dated 14.11.1985 issued by Ministry of Finance (Department
of Revenue) indicate that officers of and above the rank of
Inspector in the Departments of Central Excise, Customs,
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Revenue Intelligence, Central Economic Intelligence Bureau and
Narcotics Control Bureau were authorised to act under both
sections 42 and 53. These notifications dated 14.11.1985 were
superseded by Notifications S.O. 3901 (E) and S.O. 3899 (E)
issued by the Ministry of Finance (Department of Revenue) on
30.10.2019. Even the new Notifications dated 30.10.2019 indicate
that the powers under sections 42 and 53 of the NDPS Act are
invested in officers of and above the rank of inspectors in the
Central Board of Indirect Taxes and Customs, Central Bureau
of Narcotics, Directorate of Revenue Intelligence, Central
Economic Intelligence Bureau and of and above the rank of Junior
Intelligence Officer in Narcotics Control Bureau. [Paras 78, 80
and 81][702-C-E, G; 703-B-C; 704-C]
State of Madhya Pradesh v. Mubarak Ali [1959] Supp.
2 SCR 201 - relied on.
4.1 Where limited powers of investigation are given to
officers primarily or predominantly for some purpose other than
the prevention and detection of crime, such persons cannot be
said to be police officers under section 25 of the Evidence Act. A
"police officer" does not have to be a police officer in the narrow
sense of being a person who is a police officer so designated
attached to a police station. Where a person who is not a police
officer properly so-called is invested with all powers of
investigation, which culminates in the filing of a police report,
such officers can be said to be police officers within the meaning
of section 25 of the Evidence Act, as when they prevent and detect
crime, they are in a position to extort confessions, and thus are
able to achieve their object through a shortcut method of
extracting involuntary confessions. [Para 126][732-E-H]
4.2 There is distinction between the investigative powers
of officers who are designated in statutes primarily meant for
revenue or railway purposes, as against officers who are
designated under section 53 of the NDPS Act: first, that section
53 is located in a statute which contains provisions for the
prevention, detection and punishment of crimes of a very serious
nature. Even if the NDPS Act is to be construed as a statute
which regulates and exercises control over narcotic drugs and
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psychotropic substances, the prevention, detection and
punishment of crimes related thereto cannot be said to be ancillary
to such object, but is the single most important and effective
means of achieving such object. This is unlike the revenue statutes
where the main object was the due realisation of customs duties
and the consequent ancillary checking of smuggling of goods (as
in the Land Customs Act, 1924, the Sea Customs Act, 1878 and
the Customs Act, 1962); the levy and collection of excise duties
(as in the Central Excise Act, 1944); or as in the Railway Property
(Unlawful Possession Act), 1966, the better protection and
security of Railway property. Second, unlike the revenue statutes
and the Railway Act, all the offences to be investigated by the
officers under the NDPS Act are cognizable. Third, that section
53 of the NDPS Act, unlike the aforesaid statutes, does not
prescribe any limitation upon the powers of the officer to
investigate an offence under the Act, and therefore, it is clear
that all the investigative powers vested in an officer in charge of
a police station under the CrPC - including the power to file a
charge-sheet - are vested in these officers when dealing with an
offence under the NDPS Act. This is wholly distinct from the
limited powers vested in officers under the aforementioned
revenue and railway statutes for ancillary purposes, which were
in aid of the dominant object of the statutes in question, not
primarily concerned with the prevention and detection of crime,
unlike the NDPS Act. Also, importantly, none of those statutes
recognised the power of the State police force to investigate
offences under those Acts together with the officers mentioned
in those Acts, as is the case in the NDPS Act. No question of
manifest arbitrariness or discrimination on the application of
Article 14 of the Constitution of India would therefore arise in
those cases, unlike cases which arise under the NDPS Act. [Para
132][736-G-H; 737-A-D; F-G]
4.3 When sections 53 and 53A are seen together in the
context of a statute which deals with prevention and detection of
crimes of a very serious nature, it becomes clear that these
sections cannot be construed in the same manner as sections
contained in revenue statutes and railway protection statutes.
[Para 133][737-H; 738-A]
TOFAN SINGH v. STATE OF TAMIL NADU
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4.4 It is clear that the designated officer under section 53,
invested with the powers of an officer in charge of a police station,
is to forward a police report stating the particulars that are
mentioned in section 173(2) CrPC. Because of the special
provision contained in section 36A(1) of the NDPS Act, this police
report is not forwarded to a Magistrate, but only to a Special
Court under section 36A(1)(d). The non obstante clause contained
in section 36A(1) makes it clear that the drill of section 36A of
NDPS Act is to be followed notwithstanding anything contained
in section 2(d) of the CrPC. It is obvious that section 36A(1)(d)
is inconsistent with section 2(d) and section 190 of the CrPC and
therefore, any complaint that has to be made can only be made
under section 36A(1)(d) of NDPS Act to a Special Court, and not
to a Magistrate under section 190 CrPC [Para 137][741-B-E]
4.5. It cannot be said that the procedure under section 190
Cr. P.C. has been replaced only in part, the police report and
complaint procedure under section 190 not being displaced by
section 36A(1)(d). Section 36A(1)(d) specifies a scheme which is
completely different from that contained in the CrPC. Whereas
under section 190 of the CrPC it is the Magistrate who takes
cognizance of an offence, under section 36A(1)(d) it is only a
Special Court that takes cognizance of an offence under the NDPS
Act. Secondly, the "complaint" referred to in section 36A(1)(d)
is not a private complaint that is referred to in section 190(1)(a)
of the CrPC, but can only be by an authorised officer. Thirdly,
section 190(1)(c) of the CrPC is conspicuous by its absence in
section 36A(1)(d) of the NDPS Act - the Special Court cannot,
upon information received from any person other than a police
officer, or upon its own knowledge, take cognizance of an offence
under the NDPS Act. Further, a Special Court under section 36A
is deemed to be a Court of Session, for the applicability of the
CrPC, under section 36C of the NDPS Act. A Court of Session
under section 193 of the CrPC cannot take cognizance as a Court
of original jurisdiction unless the case has been committed to it
by a Magistrate. However, under section 36A(1)(d) of the NDPS
Act, a Special Court may take cognizance of an offence under the
NDPS Act without the accused being committed to it for trial. It
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is obvious, therefore, that in view of section 36A(1)(d), nothing
contained in section 190 of the CrPC can be said to apply to a
Special Court taking cognizance of an offence under the NDPS
Act. [Para 137][741-E-H; 742-A-B]
4.6. Also, the officer designated under section 53 by the
Central Government or State Government to investigate offences
under the NDPS Act, need not be the same as the officer
authorised by the Central Government or State Government
under section 36A(1)(d) to make a complaint before the Special
Court. As a matter of fact, if the Central Government is to invest
an officer with the power of an officer in charge of a police station
under sub-section (1) of section 53, it can only do so after
consultation with the State Government, which requirement is
conspicuous by its absence when the Central Government
authorises an officer under section 36A(1)(d). Also, both section
53(1) and (2) refer to officers who belong to particular departments
of Government. Section 36A(1)(d) does not restrict the officer
that can be appointed for the purpose of making a complaint to
only an officer belonging to a department of the Central/State
Government. There can also be a situation where officers have
been designated under section 53 by the Government, but not
so designated under section 36A(1)(d). It cannot be that in the
absence of the designation of an officer under section 36A(1)(d),
the culmination of an investigation by a designated officer under
section 53 ends up by being an exercise in futility. [Para 138][742C-F]
4.7 Section 59 of the NDPS Act is an important pointer to
when cognizance of an offence can take place only on a complaint,
and not by way of a police report. By section 59(3), both in the
case of an offence under section 59(1) [which is punishable for a
term which may extend to one year] or in the case of an offence
under section 59(2) [which is punishable for a term which shall
not be less than 10 years, but which may extend to 20 years], no
Court shall take cognizance of any offence under section 59(1) or
(2), except on a complaint in writing made with the previous
sanction of the Central Government, or, as the case may be, the
State Government. Thus, under section 59, in either case i.e. in a
case where the trial takes place by a Magistrate for an offence
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under section 59(1), or by the Special Court for an offence under
section 59(2), cognizance cannot be taken either by the
Magistrate or the Special Court, except on a complaint in writing.
This provision is in terms markedly different from section
36A(1)(d), which provides two separate procedures for taking
cognizance of offences made out under the NDPS Act. [Para
143][744-E-H]
4.8 It cannot be said that the "complaint" referred to in
section 36A(1)(d) refers only to section 59 of the NDPS Act. A
complaint can be made by a designated officer qua offences which
arise under the NDPS Act - it is not circumscribed by a provision
which requires previous sanction for an offence committed under
section 58, as that would do violence to the plain language of
section 36A(1)(d). It is always open, therefore, to the designated
officer, designated this time for the purpose of filing a complaint
under section 36A(1)(d), to do so before the Special Court, which
is a separate procedure provided for under the special statute, in
addition to the procedure to be followed under section 53. [Para
144][745-B-D]
4.9 It cannot be said that the power contained in section
53(1) is only a truncated power to investigate which does not
culminate in a police report being filed because Section 53 does
not use the expression "deemed". The officer who is designated
under section 53 can, by a legal fiction, be deemed to be an officer
in charge of a police station, or can be given the powers of an
officer in charge of a police station to investigate the offences
under the NDPS Act. Whether he is deemed as an officer in charge
of a police station, or given such powers, are only different sides
of the same coin - the aforesaid officer is not, in either
circumstance, a police officer who belongs to the police force of
the State. To concede that a deeming fiction would give full powers
of investigation, including the filing of a final report, to the
designated officer, as against the powers of an officer in charge of
a police station being given to a designated officer having only
limited powers to investigate, does not stand to reason, and would
be contrary to the express language and intendment of section
53(1). [Para 145][745-D-G]
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4.10 When it is clear that the expression "police officers"
does not only mean a police officer who belongs to the State police
force, but includes officers who may belong to other departments,
such as the Department of Excise who are otherwise invested
with all powers of investigation so as to attract the provisions of
section 25 of the Evidence Act, it is not correct to say that police
officers or policemen who belong to the police force are
recognised in the NDPS Act as being separate and distinct from
the officers of the Department of Narcotics, etc. If the distinction
between police officer as narrowly defined and the officers of the
Narcotics Control Bureau is something that is to be stressed,
then any interpretation which would whittle down the fundamental
rights of an accused based solely on the designation of a particular
officer, would fall foul of Article 14, as the classification between
the two types of officers would have no rational relation to the
object sought to be achieved by the statute in question, which is
the prevention and detection of crime. [Para 146][745-G-H; 746A-C]
4.11 Section 32 of POTA and section 15 of TADA are
exceptions to section 25 of the Evidence Act in terms, unlike the
provisions of the NDPS Act. Both these Acts, vide section 32 and
section 15 respectively, have non-obstante clauses by which the
Evidence Act has to give way to the provisions of these Acts.
Pertinently, confessional statements made before police officers
under the provisions of the POTA and TADA are made
"admissible" in the trial of such person. This is distinct from the
evidentiary value of statements made under the NDPS Act, where
section 53A states that, in the circumstances mentioned therein,
statements made by a person before any officer empowered under
section 53 shall merely be "relevant" for the purpose of proving
the truth of any facts contained in the said statement. Therefore,
statements made before the officer under section 53, even when
"relevant" under section 53A, cannot, without corroborating
evidence, be the basis for the conviction of an accused. Also,
when confessional statements are used under the TADA and
POTA, they are used with several safeguards which are contained
in these sections themselves. Additional safeguards/guidelines
were issued by the Court in *kartar Singh case in respect of TADA
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cases to ensure that the confession obtained in the course of
investigation by a police officer "is not tainted with any vice but
is in strict conformity with the well-recognised and accepted
aesthetic principles and fundamental fairness". Insofar as POTA
is concerned, procedural safeguards while recording confessions
have been discussed in ** Navjot Sandhu case. Thus, to arrive at
the conclusion that a confessional statement made before an
officer designated under section 42 or section 53 can be the basis
to convict a person under the NDPS Act, without any non obstante
clause doing away with section 25 of the Evidence Act, and without
any safeguards, would be a direct infringement of the constitutional
guarantees contained in Articles 14, 20(3) and 21 of the
Constitution of India. [Paras 149 and 150 - 152][749-A-E; 750FG; 753-G-H; 754-A]
*Kartar Singh v. State of Punjab (1994) 3 SCC 569:
[1994] 2 SCR 375; Noor Aga v. State of Punjab (2008)
16 SCC 417: [2008] 10 SCR 379; Nirmal Singh Pehlwan
v. Inspector, Customs (2011) 12 SCC 298: [2011] 9 SCR
446 - relied on.
**State (NCT of Delhi) v. Navjot Sandhu (2005) 11
SCC 600: [2005] 2 Suppl. SCR 79 - referred to.
5. Thus, the officers who are invested with powers under
section 53 of the NDPS Act are "police officers" within the
meaning of section 25 of the Evidence Act, as a result of which
any confessional statement made to them would be barred under
the provisions of section 25 of the Evidence Act, and cannot be
taken into account in order to convict an accused under the NDPS
Act. A statement recorded under section 67 of the NDPS Act
cannot be used as a confessional statement in the trial of an
offence under the NDPS Act. [Para 155][754-C-F]
Raj Kumar Karwal v. Union of India (1990) 2 SCC
409: [1990] 2 SCR 63; Kanhaiyalal v. Union of India
(2008) 4 SCC 668: [2008] 1 SCR 350 - overruled.
State of Punjab v. Barkat Ram [1962] 3 SCR 338; Raja
Ram Jaiswal v. State of Bihar [1964] 2 SCR 752; Badku
Joti Savant v. State of Mysore [1966] 3 SCR 698;
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Romesh Chandra Mehta v. State of West Bengal [1969]
2 SCR 461; Illias v. Collector of Customs, Madras
[1969] 2 SCR 613; State of U.P. v. Durga Prasad (1975)
3 SCC 210: [1975] 1 SCR 881; Balkishan A. Devidayal
v. State of Maharashtra (1980) 4 SCC 600: [1981] 1
SCR 175; State of Gujarat v. Anirudhsing and Anr.
(1997) 6 SCC 514: [1997] 2 Suppl. SCR 234; Vinubhai
Haribhai Malviya and Ors. v. State of Gujarat and Anr.
2019 SCC OnLine SC 1346; John Thomas v. Dr. K.
Jagadeesan (2001) 6 SCC 30: [2001] 3 SCR 934 ;
Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31:
[2013] 9 SCR 962; Abdul Rashid v. State of Bihar
(2001) 9 SCC 578; D.K. Basu v. Union of India (1997)
1 SCC 416: [1996] 10 Suppl. SCR 284 - referred to.
PER INDIRA BANERJEE, J. (DISSENTING)
1.1 The scheme of the NDPS Act makes it patently clear
that it essentially makes provisions, as are deemed necessary,
for preventing and combating the abuse of and illicit trade and
trafficking in narcotic drugs and psychotropic substances. [Para
43][766-B]
1.2 However, despite an elaborate statutory framework, the
NDPS Act is not being effectively implemented. Illicit business
in and consumption of narcotic drugs and psychotropic substances
is endangering the social and economic stability of India and the
developing countries, adversely affecting the health of the people,
causing malnutrition related ailments, causing a spurt in crimes
and increase in the spread of communicable diseases such as
AIDS (Acquired Immuno Deficiency Syndrome), caused by
sharing of needles for administration of narcotic drugs. The lure
of money, vulnerability of adolescents, poverty and other facets
of socio-economic deprivations aggravate this menace and
provide sustenance to the racketeers involved in this flourishing
illicit business. [Paras 47 and 48][768-A-D]
1.3 Socio-economic crimes i.e. "white collar crimes" affect
the health and material welfare of the community as a whole, as
against that of an individual victim, and are, by and large,
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committed not by disadvantaged low class people, but by very
affluent and immensely powerful people, who often exploit the
less advantaged, to execute their nefarious designs. Such crimes
have to be dealt with firmly and cannot be equated with other
crimes, committed by individual offenders against individual
victims. [Para 50][769-G-H; 770-A]
Article "Narcotic Aggression and Operation Counter
Attack" by the Mainstream dated March 7, 1992; The
Law Commission of India, in its 155th Report on Narcotic
Drugs and Psychotropic Substances Act, 1985
- referred to.
2.1 It is a well settled principle of criminal jurisprudence
that an accused is presumed innocent, unless proved guilty
beyond reasonable doubt, except where the statute, on existence
of certain circumstances, casts a reverse burden on the accused,
to dispel the presumption of guilt, as in the case of Section 304B
of the Penal Code and many other statutes, particularly those
dealing with socio economic offences. The Legislature may, in
public interest, create an offence of strict liability where mens
rea is not necessary. There are presumptive provision in the
NDPS Act, such as Sections 35, 54 and 66. Under Section 54 of
the NDPS Act presumption of commission of an offence may, inter
alia, be drawn from the possession of any narcotic drug or
psychotropic substance, or any apparatus for manufacture or
preparation thereof. The presumption is rebuttable. [Para
52][770-C-E]
2.2. The punishments prescribed for many of the offences
under the NDPS Act are very severe. When a statute has drastic
penal provisions, the authorities investigating the crime under
such law, have a greater duty of care, and the investigation must
not only be thorough, but also of a very high standard. [Para
53][770-F; 771-B]
2.3 There are inbuilt safeguards in the NDPS Act to protect
a person accused of an offence under the said Act, from
unnecessary harassment, or malicious or wrongful prosecution.
Section 58 provides for punishment of any person, authorized
under Section 42 or 43 or 44 for vexatious entry, search, seizure,
or arrest. [Para 54][771-C-D]
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2.4 The condition precedent for exercise of power under
Sections 41(2), 42(1), 43 or 44 is "reason to believe" and not
just reason to "suspect" that the circumstances specified in the
aforesaid provisions for action thereunder exist. The use of the
words "reason to believe" in Sections 41, 42, 43 and 48 is in
contradistinction with use of the phrase "Reason to Suspect", in
Section 49 of the NDPS Act. [Para 59][773-D-E]
A. S. Krishnan and Ors. v. State of Kerala (2004) 11
SCC 576: [2004] 3 SCR 44; Income Tax Officer, I Ward,
District VI, Calcutta and Ors. v. Lakhmani Mewal Das
(1976) 3 SCC 757: [1976] 3 SCR 956 - relied on.
2.5 The NDPS Act is a complete code. The NDPS Act
specifically makes some provisions of the Cr.P.C applicable to
proceedings under the NDPS Act. The Act is very specific on
which of the provisions of the Cr.P.C. are to apply to proceedings
under the NDPS Act.