Whether Statement Recorded U/S 67 Of NDPS Act Is A ‘Confessional Statement’ Or Not? Many Cases Awaiting Outcome Of Reference Made In 2013, DB Asks Registry To Place It Before CJI [Read Order]

A Supreme Court bench headed by Justice Ranjan Gogoi has asked the Registry to bring it to the notice of Chief Justice of India that reference made in Tofan Singh vs. State of Tamil Nadu is still pending.

The bench observed that a large number of cases in the apex court and various high courts in the country are awaiting the outcome in that case to know determination of the three-judge bench in the issue whether a statement recorded under Section 67 of the NDPS Act can in law be a confessional statement or not.

The bench, also comprising Justice R Banumathi, was considering a criminal appeal where one of the grounds raised against conviction of the accused was that he had made a confession which was recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The bench observed: “Whether a statement recorded under Section 67 of the NDPS Act can in law be a confessional statement or not is an issue that has been 2 referred to a larger Bench of this Court by order dated 08.10.2013 in Criminal Appeal No.152 of 2013 ‘Tofan Singh vs. State of Tamil Nadu’ reported in (2013) 16 SCC 31. The reference made in Tofan Singh (supra) is still pending. As the accused-appellant has also been convicted for a second offence under the provisions of NDPS Act, we are of the view that this appeal should await the outcome of the reference made in Tofan Singh.”

The bench further noted in its order: “As the said reference i.e. Tofan Singh (supra) has been pending since October, 2013 and we are told that a large number of cases in this Court as well as in various High Courts in the country are awaiting the outcome in Tofan Singh (supra), we direct the Registry to place this order before Hon’ble the Chief Justice of India for appropriate orders for hearing of the issues referred in Tofan Singh (supra).”

Tofan Singh vs. State of Tamil Nadu

A division bench of Justice AK Patnaik and Justice AK Sikri, in 2013, had referred these issues to the larger bench.

• Whether the officer investigating the matter under the NDPS Act would qualify as police officer or not?


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

The bench, doubting the dictum laid in Kanhaiyalal vs. Union of India, had observed: “We have also to keep in mind the crucial test to determine whether an officer is a police officer for the purpose of Section 25 of the Evidence Act viz. the “influence or authority” that an officer is capable of exercising over a person from whom a confession is obtained. The term “police officer” has not been defined under the Code or in the Evidence Act and, therefore, the meaning ought to assessed not by equating the powers of the officer sought to be equated with a police officer but from the power he possesses from the perception of the common public to assess his capacity to influence, pressure or coercion on persons who are searched, detained or arrested. The influence exercised has to be, assessed from the consequences that a person is likely to suffer in view of the provisions of the Act under which he is being booked. It, therefore, follows that a police officer is one who:-(i) is considered to be a police officer in “common parlance” keeping into focus the consequences provided under the Act. (ii) is capable of exercising influence or authority over a person from whom a confession is obtained.”