The (in)admissibility of Confessional Statements under the NDPS Act: Analysing Tofan Singh v. State
This article has been authored by Eeshan Sonak a second year student and Sukrut Khandekar a first year law student at NALSAR University of Law.
In a landmark decision, a three-judge bench of the Supreme Court progressively settled a heavily contested question of law on whether a statement by the accused recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter ‘NDPS Act’) can be treated as a “confessional statement”. Answering in the negative, the majority held that investigating officers empowered under Section 53 of the NDPS Act are “police officers”, and therefore, Section 25 of the Indian Evidence Act (‘Evidence Act’) bars such statements from being used as evidence. The Court added that even if this weren’t the case, Section 67 only vests the power to collect information, and not to record a confession. This article examines the position of law prior to the judgment, evaluates the points of consideration before the Supreme Court, and explores the reasoning behind its decision.
In 2004, Tofan Singh, along with five individuals, was arrested for smuggling 5kgs of heroin out of India. The Special Court under the NDPS Act convicted them to ten years of rigorous imprisonment along with a fine. This decision was appealed before the Madras High Court but was dismissed in 2012. Dissatisfied, Tofan Singh appealed to the Supreme Court, where a Division Bench felt the need to refer the matter to a larger bench for resolving two crucial questions:
1. Is an officer investigating an offence under the NDPS Act a “police officer”?
2. Does the power to collect information under Section 67 extend to recording a confession?
Seven years after the reference, these questions have finally been answered by the Supreme Court in Tofan Singh v. State of Tamil Nadu.
Deconstructing the Legal Framework
Before analyzing the judgment, one must understand the relevant provisions of law and their purpose. Section 25 of the Evidence Act disallows a confession made to the police from being used as evidence, thereby preventing the malpractice of police coercing accused persons into incriminating themselves. The provision is in line with the right against self-incrimination under Article 20(3) and the right to informational privacy under Article 21. It is also consistent with Chapter XII of the Code of Criminal Procedure (‘CrPC’) where Sections 161 and 162 permit police to record statements, but do not permit their use as evidence at trial. More importantly, Section 164 requires the presence of a judicial magistrate while recording a confession and disallows a police officer to do the same.
Now when it comes to the NDPS Act, unlike other penal statutes, both police officers, and officers of other departments authorised by Section 42, have coequal powers to investigate. This unique position is reflected in Section 36A which says that a case will begin on a chargesheet or a complaint by an authorised officer. Further, Section 67 of the NDPS Act allows officers to collect information from, or examine any person to determine whether the Act has been violated. Lastly, Section 53 allows the Government to invest officers with powers of an officer-in-charge of a police station. That being said, the next section will now examine how these provisions were interpreted by the judiciary before Tofan Singh.
From Badku Joti to the Reference: A journey through Judicial Precedents
In 1970, the Constitution Bench in Badku Joti Savant v. State of Mysore was tasked with the question “who is a police officer?” Instead of adopting a functional approach like was done in Barkat Ram or Raja Ram Jaiswal, the Court endorsed a more formulaic approach. It prescribed a “chargesheet test” which simply put, defines a police officer as one who can file a police report/chargesheet. If not, the individual is not a police officer. This test has been followed by subsequent benches and is still the authority in identifying a police officer.
The NDPS Act was enacted in 1985, and with it came the issue of whether an Investigating officer empowered under Section 53 is a police officer. The Supreme Court in Raj Kumar Karwal drew upon the distinction in the manner of initiating a case by police officers and other officers under Section 36A and applied the chargesheet test to hold that Investing officers are not police officers. This view was reiterated and even extended in Kanhaiyalal, to allow confessions recorded under Section 67 into evidence.
However, these decisions were not followed in Noor Aga, where it was held that officers invested with the powers of a Station House Officer under Section 53 should be considered police officers. However, this position was reversed just three years later, when in Ram Singh, the Court held that officers empowered under Section 53 are not police officers as the Section does not give them the power to file a chargesheet. Like the swing of a pendulum, the position was yet again changed in Nirmal Singh Pehlwan, which cast a shadow on the correctness of Kanhaiyalal. Due to these varying opinions, the Division Bench in Tofan Singh referred the matter to a larger Bench.
Who is a police officer?
Speaking for the majority, Justice Nariman noted that the term “police officer” hasn’t been defined anywhere, and therefore, must be given a wider meaning in consonance with the popular understanding of the term. Simply put, Nariman held that where officers are conferred investigative powers under a "Penal Statute", they should be seen as "police officers". As the NDPS Act is a penal statute, officers empowered under Section 53 would be police officers. On the other hand, Justice Banerjee’s dissent held that when Section 36A(1)(d) required Section 53 officers to file a complaint, judicial propriety demanded that it follow binding precedent, and therefore, such officers would not be police officers.
As a long history of alternating positions has shown, either of these views is plausible. The NDPS Act is unique as it confers equal investigative powers to officers registered as police officers under Police Acts, as well as officers belonging to other governmental agencies. This coequal power lies at the heart of the dispute in the present matter. If one agrees with the dissenting opinion, then the admissibility of the evidence would wholly depend on who the investigating agency is. In the author’s opinion, treating the two sets of officers differently and allowing statements to one as being admissible but not to the other, defies the notion of equality and arbitrarily prejudices the accused who were investigated by Section 53 officers. Such a view, privileges form over substance and is not a desirable interpretation of the law.
Yet, the majority opinion too has its shortcomings; namely, that it does not conform to the “chargesheet test” developedand followed by Constitution Benches. In his thorough exposition on the matter here, Abhinav Sekhri compares the majority opinion to “a boxer flailing at the opponent, throwing many punches but failing to land any of them”. The crux of the majority opinion is that given the overarching penal context of NDPS investigations, it should not matter what the officer ends up filing, be a chargesheet or a complaint, to decide whether this person is a police officer.
The correctness of this conclusion has been called into question, both, by legal scholars, as well as by the dissenting opinion itself. In the author’s opinion, the conclusion arrived at by the majority is appropriate, but the reasoning advanced to back it is disagreed with. This is because the majority seems to have bypassed the chargesheet test in arriving at this conclusion. Instead, it could have addressed the issue head-on to say that Section 53 of the NDPS Act conferred unrestricted police powers to such officers, which would mean that they file a police report/chargesheet at the end of their investigation. This would give full effect to the deeming fiction under Section 53 and would also solve the oddity of lesser procedural safeguards under Section 53A when compared to Sections 161-165 of the CrPC.
Whether Section 67 allows recording of Confessional Statements?
While framing the reference, the Division Bench in Tofan Singh noted that Section 67 of the NDPS Act was qualitatively different from similar provisions of other Statutes like Section 108 of the Customs Act, or Section 14 of the Excise Act. It placed reliance on the Andhra Pradesh High Court decision in Shahid Khan to back this contention. When the matter came up before the three-judge-bench, the appellant argued that the power under Section 67 is merely to examine a person acquainted with the facts of a case. Unlike Sections 161-164 of the CrPC, statements under Section 67 are not recorded on oath, nor is the person giving such statement warned about its consequences. Therefore, it was submitted that such statements must not be considered as substantive evidence.
Unimpressed with these arguments, Justice Banerjee held that Section 53A is clear in stating that such statements can be considered as evidence. However, these arguments found favour with the majority, who opined that the power under Section 67 cannot be extended to recording a confessional statement. It differentiated between “inquiry” and “enquiry” to conclude that Section 67 only empowers officers to record statements for deciding whether there exists reason to believe that an offence has been committed.
The Supreme Court also noted that the NDPS Act does not have a non-obstante clause which allows it to circumvent the provisions under the Evidence Act, or the CrPC, like is the case with POTA or TADA. It recognized that the more stringent a statute, greater is the need for procedural protections. Thus, it held that allowing information given to officers to be considered as a confession would violate an individual’s privacy as well as their right against self-incrimination enshrined in the constitution. In my opinion, given the relative absence of safeguards under Section 67 to ensure reliability and voluntariness of the statement, this is a much-needed and welcome interpretation.
The three-judge-bench decision in Tofan Singh has cleared the oddity in the law, where investigations by one agency could end up with more evidence and less procedural safeguards for accused persons than another, for prosecuting the same crime. While the authors agree with the conclusion arrived at by the majority, it is difficult to agree with its reasoning. The Court could have adopted a more direct approach in determining whether an empowered officer was a police officer, by allowing empowered officers to file a chargesheet. As it currently stands, the decision is vulnerable to be challenged for not following the binding precedent. Further, the “inquiry” versus “enquiry” distinction was not required to be made in arriving at its conclusion. Regardless, this decision is in line with a visible trend in recent years of heightened procedural safeguards for persons accused of NDPS related offences – for example, the inadmissibility of evidence obtained contrary to Section 50. The severity of punishment under the NDPS Act makes such safeguards extremely necessary.