NDPS Act | Confession To NCB Officials Not Admissible In Evidence; Possession Must Be Established To Draw Presumption Under S.54 : Supreme Court

The Supreme Court on Friday (22.09.2023) held that an officer invested with powers under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985, is a 'police officer' within the meaning of Section 25 of the Evidence Act, and thus a confessional statement of an accused recorded under Section 67 of the NDPS Act cannot be used in a trial under the NDPS Act as a confessional statement.

A bench of Justice B R Gavai and Justice Hima Kohli also held that for attracting the provisions of Section 54 of the NDPS Act, the prosecution must first establish possession of contraband by the accused, only then will the burden shift to the accused to prove his innocence. The Court also observed that the possession of the contraband must be proved beyond reasonable doubt by the prosecution.

Brief Facts

The Court was considering appeals by two persons, Balwinder Singh and Satnam Singh, who were convicted for possession of heroin. Both were found guilty and convicted for commission of offence under Section 21 read with Section 8 of the NDPS Act. The Special Court imposed death sentence on Balwinder Singh, which was modified by the High Court to 14 years of imprisonment. Satnam Singh was sentenced to 12 years of imprisonment. The appeals by both the accused persons were dismissed by the High Court except for the modification in the order of sentence.

NCB Officials Are ‘Police Officers’ Under Section 25 Of Evidence Act

It was argued on behalf of Balwinder Singh that he was convicted solely on the basis of the confessional statement of his co-accused, Satnam Singh before the NCB officials. Such a statement is not admissible in law, pursuant to the decision in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, it was contended.

The Apex Court held that in view of the 2020 decision of the Apex Court in Tofan Singh (supra) any confessional statement made by an accused to an officer with powers under Section 53 of the NDPS Act, is barred because such officers are “police officers” within the meaning of Section 25 of the Evidence Act and that a statement of an accused recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the Act.

In view of the above ruling the case of the prosecution against Balwinder Singh, which was solely based on the confessional statement of Satnam Singh to NCB officials ‘collapses like a House of cards’ the Apex Court observed.

“Once the confessional statement of the co-accused, Satnam Singh recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to Balwinder Singh and the subsequently recorded statement of Balwinder Singh himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Tofan Singh (supra), there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh under the NDPS Act", the Apex Court said, while setting aside the conviction of Balwinder Singh. 

Prosecution Must Establish Possession For Burden Of Proof To Shift To Accused

The Apex Court also held that for attracting the presumption of guilt under Section 54 of the NDPS Act, the prosecution must establish the element of possession of contraband by the accused, only then can the burden shift to the accused to prove his innocence. The Court observed that the aspect of possession of the contraband must be proved by the prosecution beyond reasonable doubt.

“…the initial burden is cast on the prosecution to establish the essential factors on which its case is premised. After the prosecution discharges the said burden, the onus shifts to the accused to prove his innocence. However, the standard of proof required for the accused to prove his innocence, is not pegged as high as expected of the prosecution.”  

It was argued on behalf of Satnam Singh that the prosecution had failed to establish a prima facie case against him and hence, the burden of proving his innocence did not shift back to him. However the Apex Court was of the view that the prosecution was able to prove the foundational facts for the onus to shift to him, the accused.

“Once it is concluded that the prosecution had produced adequate evidence to prove beyond reasonable doubt that the accused – Satnam Singh had the knowledge, the presumption contemplated under Section 35 of the NDPS Act would have to be drawn against him to hold that he had a culpable mental state for indicting him for the offence for which he had been charged.”

The Court in this regard also observed that possession of the contraband is an essential condition to secure a conviction under Section 21 of the NDPS Act. The contraband article must also be recovered in accordance with Section 50 of the NDPS Act, which is a statutory safeguard favouring the accused, the Court observed. If not, the recovery itself shall stand vitiated in law.

The Apex Court was of the view that the procedural discrepancies pointed out by the appellant were not so vital so as to demolish the case set up by the prosecution. The Court also observed that, unlike in Balwinder Singh’s case, his conviction was not solely based on his confessional statement to NCB Officials, but also on the testimonies of three prime prosecution witnesses. The Court found their testimonies to be consistent and without any contradictions.

The Court thus refused to set aside Satnam Singh’s conviction and affirmed the order of the Trial Court and High Court.

Case Title: Balwinder Singh (Binda) V. The Narcotics Control Bureau, Satnam Singhv v. The Narcotics Control Bureau,  

Citation : 2023 LiveLaw (SC) 813; 2023INSC852

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