Evidentiary Value of Statements under Section 67 of the NDPS Act

The Evolving Jurisprudence on the Evidentiary Value of Statements under Section 67 of the NDPS Act, 1985

Introduction

Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) empowers designated officers to call for information, require the production of documents, and examine persons acquainted with the facts and circumstances of a case. For decades, the admissibility of statements, particularly confessional statements, recorded under this provision has been a subject of intense judicial scrutiny in India. The stringent nature of the NDPS Act, which prescribes severe penalties and, in some instances, reverses the burden of proof (Mangalsingh Bhansingh Rajput v. Collector Of Customs, 2000, citing Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, 1995 regarding Section 54), necessitates a careful balance between effective law enforcement and the protection of fundamental constitutional rights. This article analyzes the trajectory of judicial interpretation concerning Section 67 statements, culminating in the landmark decision of Tofan Singh v. State of Tamil Nadu (2020), and its subsequent application.

Statutory Framework: Section 67 of the NDPS Act, 1985

Section 67 of the NDPS Act, titled "Power to call for information, etc.", grants authorized officers the power to:

  • Call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the Act or any rule or order made thereunder;
  • Require any person to produce or deliver any document or thing useful or relevant to the enquiry;
  • Examine any person acquainted with the facts and circumstances of the case.

The scope and implications of statements recorded during such an "enquiry" have been central to the debate on their evidentiary value, particularly when they are confessional in nature.

The Pre-Tofan Singh (2020) Era: A Lenient Stance on Admissibility

Prior to the Supreme Court's definitive ruling in Tofan Singh (2020), the prevailing judicial view, by and large, leaned towards the admissibility of statements recorded under Section 67 of the NDPS Act, even if they were confessional. This was primarily based on the interpretation that officers empowered under the NDPS Act were not "police officers" within the meaning of Section 25 of the Indian Evidence Act, 1872, which bars the proof of a confession made to a police officer against an accused.

In Raj Kumar Karwal v. Union Of India And Others (1990), the Supreme Court held that officers of the Department of Revenue Intelligence (DRI), though empowered under Section 53 of the NDPS Act with powers of an officer-in-charge of a police station, were not "police officers" under Section 25 of the Evidence Act because they lacked the power to file a charge-sheet under Section 173 of the Code of Criminal Procedure (CrPC). Consequently, confessional statements made to such officers were deemed admissible.

Building on this, in Kanhaiyalal v. Union Of India (2008), the Supreme Court upheld a conviction based primarily on a confessional statement made under Section 67 of the NDPS Act, finding it to be voluntary and not obtained under duress. The Court reiterated that officers under the NDPS Act were not "police officers" as per Raj Kumar Karwal (1990), and thus, the bar under Sections 24 to 27 of the Evidence Act or Article 20(3) of the Constitution was not automatically invoked, provided the statement was voluntary. The Court noted that while retracted confessions generally require corroboration, this was not an absolute rule if the voluntariness was unquestionable. Similar reasoning was seen in High Court decisions, such as in Ambrose Ihecherobi Okeke v. D.P Saxena Intelligence Officer & Anr (2013), where a retracted Section 67 statement was admitted, with the retraction deemed an afterthought.

In Surinder Kumar Khanna v. Intelligence Officer, Directorate Of Revenue Intelligence (2018), the High Court (whose decision was under appeal before the Supreme Court) had observed that statements recorded under Section 67 of the NDPS Act by DRI officers were admissible as these officers were not police officers, a view consistent with the then-prevailing understanding.

However, even during this period, some courts expressed reservations. The Andhra Pradesh High Court in Shahid Khan And Etc. Etc. v. Director Of Revenue Intelligence Govt. Of India, Hyderabad And Another (2001) distinguished Section 67 of the NDPS Act from Section 108 of the Customs Act, 1962. It observed that Section 108 of the Customs Act conferred quasi-judicial powers, unlike Section 67 of the NDPS Act, and opined that statements of accused under Section 67 could not be used as confessional evidence for the prosecution, as Section 67 was only part of an investigation or enquiry (Shahid Khan And Etc. Etc. v. Director Of Revenue Intelligence Govt. Of India, Hyderabad And Another, 2001 SCC ONLINE AP 1161).

The Watershed Moment: Tofan Singh v. State of Tamil Nadu (2020)

The legal landscape regarding Section 67 statements underwent a seismic shift with the Supreme Court's majority judgment (2:1) in Tofan Singh v. State Of Tamil Nadu (2020 SCC ONLINE SC 882), delivered on October 29, 2020. This case arose from a reference made by a two-judge bench in Tofan Singh v. State of Tamil Nadu (2013 SCC 16 31), which doubted the correctness of the decision in Kanhaiyalal (2008).

The Supreme Court in Tofan Singh (2020) decisively held:

  1. 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, any confessional statement made to them would be barred under Section 25 of the Evidence Act and cannot be taken into account to convict an accused under the NDPS Act.
  2. 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.

The Court emphasized the inviolability of fundamental rights under Articles 20(3) (right against self-incrimination) and 21 (right to life and personal liberty, including the right to a fair trial) of the Constitution. It reasoned that the stringent provisions of the NDPS Act, including severe punishments, necessitate greater care to ensure that statutory and constitutional safeguards are scrupulously followed (Tofan Singh v. State Of Tamil Nadu, 2020 SCC ONLINE SC 882, also referencing Directorate of Revenue v. Mohammed Nisar Holia, 2008 on the penal nature of NDPS Act). The judgment underscored that the interpretation of "police officer" under Section 25 of the Evidence Act should be purposive, considering the potential for coercion and the need to protect the accused from self-incrimination when interrogated by officers who effectively exercise police powers of investigation.

Interpreting "Enquiry" under Section 67 Post-Tofan Singh (2020)

The Tofan Singh (2020) judgment clarified that statements under Section 67 cannot be used as confessions. However, Section 67 empowers officers to conduct an "enquiry." The Supreme Court in NAJMUNISHA ETC. v. THE STATE OF GUJARAT (2024), reaffirming Tofan Singh (2020), elaborated on this. It noted that the powers conferred on empowered officers under Sections 41 and 42 read with Section 67 of the NDPS Act are for entry, search, seizure, and arrest, and the "enquiry" undertaken may lead to the initiation of an investigation by officers empowered under Section 53 or otherwise. The Court held that officers empowered *only* under Sections 41 and 42 (and by extension, conducting an enquiry under Section 67 without being an investigating officer under S.53) do not meet the test of a "police officer" for Section 25 of the Evidence Act. However, this was in the context of those officers *not* having the power to investigate or file a police report. The core finding of Tofan Singh (2020) remains that if an officer *is* a police officer for S.25 purposes (like a S.53 NDPS officer), then a S.67 confessional statement to them is barred.

This suggests that information gathered under Section 67 may still be relevant for purposes antecedent to or forming the basis of a formal investigation, such as intelligence gathering or leading to the discovery of other independent evidence. For instance, in NARCOTICS CONTROL BUREAU v. MOHIT AGARWAL (2022), a voluntary statement under Section 67 by an accused led to the disclosure of a godown and further recovery of drugs. While the statement itself would not be admissible as a confession against the maker for conviction, the information could trigger further investigation and the evidence subsequently discovered (if independently proved) might be admissible. Similarly, in State By (Ncb) Bengaluru v. Pallulabid Ahmad Arimutta And Another (2022), reliance was placed on a Section 67 statement for arraigning accused and for arrest, indicating its use at the investigative stage.

The Rajasthan High Court in HITESH v. UNION OF INDIA (2024) and BHOPAL SINGH @ PAPPU SINGH v. STATE OF RAJASTHAN (2024), quoting Tofan Singh (2020), emphasized that a statement under Section 67 is information gathered at an antecedent stage prior to the commencement of investigation and is not even in the nature of a confessional statement, hence inadmissible in trial as such.

Corroboration and Adherence to Procedural Safeguards

The NDPS Act, due to its stringent nature, mandates strict adherence to procedural safeguards to prevent misuse and protect the innocent. The Supreme Court in Noor Aga v. State Of Punjab And Another (2008) stressed the presumption of innocence and the need for strict compliance with procedural safeguards. Similarly, Union Of India v. Bal Mukund And Others (2009) highlighted the necessity of independent corroboration for confessions and adherence to procedural mandates like Section 42 of the NDPS Act and Standing Instructions regarding sample collection.

The principle that severer the punishment, the greater the care to be taken regarding safeguards, was reiterated in Tofan Singh (2020 SCC ONLINE SC 882), drawing from State Of Punjab v. Baldev Singh (1999). The Supreme Court in State Of Punjab v. Balbir Singh (1994) also noted that the legislature incorporated several safeguards in Chapter V of the NDPS Act because of the deterrent punishments prescribed. The importance of specific safeguards like Section 50 (right to be searched before a Gazetted Officer or Magistrate) was underscored in State Of Punjab v. Vijay Shankar (2002), citing Baldev Singh (1999).

Even if a Section 67 statement is not relied upon as a confession, the prosecution's case must stand on its own through independent and corroborated evidence, collected in strict compliance with all statutory procedures.

Judicial Application Post-Tofan Singh (2020)

Courts across India have consistently applied the ratio of Tofan Singh (2020). The Supreme Court itself in NAJMUNISHA ETC. v. THE STATE OF GUJARAT (2024) explicitly followed Tofan Singh (2020) to reiterate the inadmissibility of confessional statements under Section 67.

High Courts have also been quick to implement this landmark ruling. In MS REBECCA MAGGIE PEREIRA v. UNION OF INDIA (Karnataka High Court, 2025), the Karnataka High Court quashed proceedings against the petitioner, noting that the case rested solely on the petitioner's voluntary/confessional statement under Section 67, which was inadmissible post-Tofan Singh (2020), and there was no corroborating evidence. The Delhi High Court in JASBIR SINGH v. NARCOTICS CONTROL BUREAU (2023) observed that statements recorded under Section 67 are not admissible as evidence in light of Tofan Singh (2020). The Rajasthan High Court in HITESH v. UNION OF INDIA (2024) and BHOPAL SINGH @ PAPPU SINGH v. STATE OF RAJASTHAN (2024) also applied Tofan Singh (2020) to hold Section 67 statements as inadmissible for conviction.

These decisions illustrate a clear trend: where the prosecution case hinges primarily or solely on a confessional statement recorded under Section 67 of the NDPS Act, it is unlikely to sustain, and accused persons are often granted relief by the courts.

Conclusion

The Supreme Court's judgment in Tofan Singh v. State of Tamil Nadu (2020) has fundamentally altered the legal understanding of the evidentiary value of statements recorded under Section 67 of the NDPS Act. By holding that officers empowered under Section 53 of the NDPS Act are "police officers" for the purpose of Section 25 of the Evidence Act, and consequently, confessional statements made to them under Section 67 are inadmissible in trial, the Court has significantly fortified the constitutional rights of the accused, particularly the right against self-incrimination and the right to a fair trial. While Section 67 statements may still have a role in the preliminary "enquiry" phase for intelligence gathering or leading to the discovery of independent evidence, they can no longer form the basis of a conviction as confessional statements.

This landmark ruling mandates a renewed focus by investigative agencies on meticulous investigation, collection of independent and corroborative evidence, and strict adherence to all procedural safeguards enshrined in the NDPS Act and the Constitution. The jurisprudence surrounding Section 67 of the NDPS Act reflects the judiciary's commitment to balancing the imperative of combating the menace of drug trafficking with the sacrosanct duty to protect individual liberties and ensure justice.