NDPS Act : Are 'Confessional' Statements Given Under Section 67 Admissible In Evidence?

Recently, a Special NDPS Court has rejected the bail application of Aryan Khan by holding that he was in "conscious possession" of the drugs found with Accused No.2- Arbaaz Merchant. The order held that -"in their voluntary statements both of them disclosed that they were possessing said substance for their consumption and for enjoyment. Thus, all these things show that accused no.1 was having knowledge of the contraband concealed by accused no.1 in his shoes."

Previously, we had explained what 'conscious possession' under the NDPS Act entails. In this piece we will look at the question of voluntary statements being used as evidence against accused under the NDPS Act.

Police Officers, Voluntary Statements and Evidence Act.

S.42 of the NDPS Act gives certain government officials the right to enter premises, search, seize and arrest without a warrant. S.53 allows the Central and State governments to invest certain government officials with the powers of an officer-in-charge of a police station for the purpose of investigating offences under this Act. S.67 of this Act allows the same officer to collect information from or examine any person to determine whether the Act has been violated. It is under this S.67 that officers of NCB record statements from the accused.

The order of the Special NDPS Court has brought back into sharp focus the question of whether statements given by the accused under S.67 of the NDPS Act have any evidentiary value and whether they can be relied upon to deny an application for bail. Whether statements recorded under S.67 of the NDPS Act can be treated as confessional statements depends in turn on the question whether officers of NCB are 'police officers'? Why does it matter whether these officers are treated as 'police officers' formally? It is because S.25 of the Indian Evidence Act, 1872 which states that no confessions made to a "police officer" shall be used to prove against an accused. So, if officers of the NCB are police officers, then a confession recorded by them would be hit by the prohibition under S.25 of the Evidence Act and rendered inadmissible from the evidentiary perspective.

So, the evidentiary value of statements under S.67 of the NDPS Act boils down to the question whether officers under NDPS Act are 'police officers'.

Whether Empowered Officers Under NDPS Act Are Police Officers Or Not

The question of who a 'police officer' has been a vexatious issue that has been a subject of a lot of litigation because there is no single, neat definition under any statute. Over the years, the Apex court has decided the question on a case-by-case basis keeping in mind the special statutes in question- Central Excise and Salt Act, Railway protection laws, Prevention of Money Laundering Act, TADA, Narcotics Drugs and Psychotropic Substances Act, among others. Often, even for a given statute, different benches of the Supreme Court of coordinate strength have swung like a pendulum in deciding this question.

In Raja Ram Jaiswal v State of Bihar, the Apex court by 2:1 majority held that Excise officers under the Bihar and Orissa Excise Act, 1915 were held to be 'police officers' and thus confessions statements made to them would be inadmissible in light of S.25 of the Evidence Act. In Badku Joti Savant v State of Mysore, a constitution bench of the Supreme Court held that central excise officers under the Central Excise and Salt Act, 1944 were not police officers. In Raj Kumar Karwal v Union of India, the Apex court deciding the question of police officer in the context of the Narcotics Drugs and Psychotropic Substances Act, 1985 held that officers of Department of Revenue Intelligence could not be considered police officers for the purpose of S.25 of the Evidence Act. In Kanhaiyalal v Union of India, the ratio of Karwal was extended to officers regarding confessions by virtue of powers under S.67 of the NDPS Act as well. This judicial see-saw continued with a two-judge bench in Noor Aga v State of Punjab dissenting from the view taken by Kainhaiyalal and holding that officers of NCB were 'police officers'.

With a view to putting an end to this judicial see-saw on the question of whether officers under the NDPS Act are 'police officers', in 2013, a reference was made by a two judge bench expressing its doubt of the correctness of the dictum laid in Kanhaiyalal v Union of India. The reference to a larger bench was on the questions-

1) Whether the officer investigating the matter under the NDPS Act would qualify as a police officer or not?

2) Whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as a confessional statement or not, even if the officer is not treated as a police officer?

Thus, a larger bench of 3 judges- in Tofan Singh v State of Tamil Nadu  was called upon to finally decide the issue of whether officers under NDPS Act were 'police officers' within the meaning of S.25 of the Evidence Act.

Tofan Singh v State of Tamil Nadu:

In Toofan Singh v State of Tamil Nadu, by 2:1 majority a Bench of Justices Fali Nariman and Navin Sinha held that officers of the Central and State agencies appointed under NDPS Act are 'police officers' within the meaning of S.25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under S.25 and could not be taken into account in order to convict an accused under the NDPS Act.

The operative part of the judgement held that:

"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.

That 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."

Doubts have been expressed over whether Toofan Singh (2020) effectively distinguishes itself from other Constitution Bench decision in The State of Punjab v Barkat Ram [1962 AIR 276] where the court held the fact of whether or not the investigating officer has the power to file a police report is a determinative test for deciding over the question of "police officers". It is possible that a different bench in the future might strictly go by the approach in Barkat Ram and disagree with the majority in Tofan Singh and throw the door open to re-litigating the issue before a Constitution Bench.

Until and if at all that happens, the dictum in Tofan Singh holds sway on the question of evidentiary value of statements under S.67 of the NDPS Act. A number of High courts have already relied on Tofan Singh to reject statements under S.67 as having no evidential value.

High Court judgments which followed Tofan Singh

In Shashikant Prabhu v Rahul Saini [2020 SCC OnLine Bom 11226] the Bombay High Court relied on Tofan Singh to hold that the statement under S.67 of the NDPS Act is not admissible in evidence. The High court in that case was considering a bail application of applicants accused of having committed offences under S.8, S.20 and S.28 of the NDPS Act. Granting bail to the applicants, the court observed that "In any case, there is no corroborative evidence to substantiate the averment in the statements of the accused. Hence, the embargo under S.37 NDPS Act would not cause impediment for granting bail to the applicants. "

In a similar case, in Yousuf v. State of Kerala Represented by Public Prosecutor, High Court of Kerala (2021 SCC OnLine Ker 851), a single bench of the Kerala High Court granted bail to the applicant on the ground that solely on the basis of statement given by Accused (1) under S.67 of the NDPS Act, the applicant couldn't be implicated. It observed that the import of Tofan Singh is that the confession statement of the co-accused under S.67 of the NDPS Act alone cannot not be sufficient to find the accused guilty since it comes within the mischief of S.25 of the Evidence Act. Further, the court held that since the applicant had no criminal antecedents, there was no possibility of getting involved in offences of similar nature-hence the twin requirement under Section 37(1)(b)(ii) of the NDPS Act is not attracted in the case- making him entitled to get bail.

The Delhi High Court in Mohit Aggarwal v Narcotics Control Bureau [MANU/DE/0488/2021] relied on Tofan Singh to hold that S.67 statements have no evidentiary value. Allowing the application or bail application, the court held that-"though he has admitted in custody to have illegally traded the tablets under the NDPS (which is now inadmissible, unless proved otherwise) but since no recovery has been affected from his person or shop in this case, prosecution can only attempt to prove its case on the basis of circumstantial evidence...and reliance cannot be solely placed upon disclosure statement of co-accused to keep him behind bars, especially when the recoveries of the instance were before the arrest of the petitioner and the statement given by co-accused has been retracted at the first available opportunity."

Similarly, in Chala Venkata Reddy v State of AP [2021 SCC OnLine AP 3128] the Andhra Pradesh High Court, Amravati Bench relied on Tofan Singh while granting pre-arrest bail to the petitioner. In that case, the court observed that there was no material to connect the petitioner with the alleged offence except the confession made by the watchman of the premises. The High Court concurred with the argument of the petitioner that judgment of the Apex Court reported in Tofan Singh wherein it was held that confession before Police Officer in NDPS cases is hit by Section 25 of Indian Evidence Act, made the confession made by watchmen inadmissible and therefore the petitioner was eligible for pre-arrest bail.

In Aejaz Ismail Sayed v. Union of India and Another, [MANU/JK/0515/2021] the High Court of Jammu & Kashmir and Ladakh at Jammu too relied on Tofan Singh to hold that officers of NCB are police officers within the meaning of S.25 of the Evidence Act and as such, any statement recorded under S.67 of the Act by the empowered officer cannot be used as evidence and relied upon by the prosecution. On the above logic, the single bench quashed the charges framed against the petitioner.

Likewise in Chaitan Mali v State of Odisha, [2021 SCC OnLine Ori 564], the Odisha High Court took note of the Apex court's judgement in Toofan Singh to hold that confessional statement of the co-accused persons before police was inadmissible and therefore the petitioner was entitled to bail to the petitioner. Recently, the Punjab and Haryana HC too reached a similar conclusion relying on Tofan Singh.

The import of the judgement in Tofan Singh v State of Tamil Nadu is that statements made under S.67 of the NDPS Act is not admissible as evidence as it is hit by the bar under S.25 of the Indian Evidence Act. As can be seen from the above discussion on how the High Courts have made reliance on Tofan Singh to grant application for bail and in some cases even quash charges framed against petitioner-applicants, the rule that can be culled out is that in the absence of any other substantial evidence, a statement given under S.67 of the NDPS to officers of NCB why itself will not be sufficient to deny application for bail and frame charges against an accused.