In the year 1985, the Indian legislature enacted the Narcotic Drugs and Psychotropic Substances Act, 1985, to establish stringent controls over the production, distribution, and use of narcotic drugs and psychotropic substances. This legislation was designed to align with the provisions of international conventions on narcotic drugs and psychotropic substances while enabling the confiscation of property acquired through or used in illicit trafficking activities.
This is a very important law among those known as the NDPS Act, 1985, and several amendments during successive years have been designed to strengthen its provisions with its objectives.
It specifically deals with a legal issue that has been the focus of much debate in NDPS cases: whether the powers granted to authorized officers under Section 67 of the NDPS Act are akin to those granted under Section 161 of the Code of Criminal Procedure (CrPC) and Section 180 of Bhartiya Nagrik Suraksha Sanhita (BNSS).
We will further discuss the admissibility of confessional statements made by accused persons before authorized officers under Section 42 of the NDPS Act, determining whether such statements can be used as evidence against the accused and their co-accused. In addition, the article looks into whether officers empowered under the NDPS Act qualify as police officers under the law.
Retraction of Statements Kisi Diwali Ananya(Section 67 of the NDPS Act)
A retracted confession is a statement in which an accused initially admits to committing an offense before the trial but denies or contradicts it during the proceedings. The admissibility of such a confession under the Narcotic Drugs and Psychotropic Substances (NDPS) Act depends on certain legal factors.
Admissibility: A retracted confession can be considered as evidence if the court is satisfied that the statement was made voluntarily and is truthful.
Non-Admissibility: A retracted confession may be excluded from evidence if there is no other evidence to support it. For example, in *Tofan Singh vs. State of Tamil Nadu*, the court held that statements recorded under Section 67 of the NDPS Act were inadmissible, as they violated the rights of the accused against self-incrimination and their right to privacy. Understanding the interpretation of Section 67 of the NDPS Act through key judgments.
This article will help you to understand that how The Supreme Court has reshaped the trajectory of NDPS Cases through a series of significant judgments:
- Raj Kumar Karwal vs. Union of India (1990) 2 SCC 409
- Abdul Rashid vs. State of Bihar (2001) 9 SCC 578
- Noor Aga vs State of Punjab (2008 Air 16 SCC 417)
- State of Punjab vs. Baldev Singh (1999) 3 SCC 299
- Kanhaiyalal v. Union of India (2008) 4 SCC 668
- Tofan Singh vs. State Of Tamil Nadu (2021) 4 SCC 1
1. Raj Kumar Karwal vs. Union of India (1990) 2 SCC 409
. For 1-5: Scope of Investigative Powers under Section 67
The Supreme Court construed Section 67’s power to “call for information” as exercising a right analogous to summons or questioning of a witness to elicit voluntary information.
Para 6-10: Nature of Statements Under Section 67
The Court clarified that statements given to an officer under Section 67 lack the same protections as those given to a police officer under Bhartiya Nagrik Suraksha Sanhita (BNSS). Officers under the NDPS Act are not considered “police officers” within the meaning of Section 25 of the Indian Evidence Act and Section 23(1) of Bhartiya Sakshya Adhiniyam.
Para 11-15: Admissibility of Confessions Under Section 67
The Court held that confessions made under Section 67 are admissible if they are voluntary and free from coercion or undue influence. These confessions are not excluded from the protections under Article 20(3) of the Constitution as a person making the statement is not forced to make an incriminating statement.
Para 16-20: Safeguards against Coercion
The Court considered that though Section 67 allows officers to collect evidence, the statements collected should be voluntary. The confession can be challenged if the accused proves that the confession is obtained through coercion and compulsion.
Para 21-25: Interface with Constitutional Rights
The Supreme Court considered these provisions in the light of Article 20(3) incorporating the right against self-incrimination. The Court held that statements under Section 67 do not offend Article 20(3) if the same is not compelled.
Para 26-30: Application of the Case to the Judgment
In the case of Raj Kumar Karwal, the Supreme Court held that the statements recorded under Section 67 were voluntary and, therefore, admissible in court. The Court only confirmed the fact that officers under the NDPS Act function in a special capacity different from ordinary police officers.
2. Abdul Rashid vs. State of Bihar (2001) 9 SCC 578
1-5: The Role of Procedural Compliance
The Court highlighted the fact that the NDPS Act has stringent provisions for the investigation and prosecution of offenses. On the other hand, it also ensures that this stringency is balanced by mandatory procedural safeguards, such as Section 50, which protects individuals’ rights and prevents the misuse of power.
6-10: Section 50 of the NDPS Act
The Court pointed out that Section 50 specifically requires the officers to inform the accused of their legal right to be searched in the presence of a magistrate or a gazetted officer. It again reiterated that compliance with this provision is mandatory and that any failure to comply would render the recovery and subsequent trial invalid.
Para 11-15: Interpreting Non-Compliance
The Court noted that procedural safeguards under the NDPS Act are not mere formalities but are essential to ensure fairness in the investigation. Any non-compliance with Section 50 undermines the prosecution’s case and violates the fundamental rights of the accused under Article 21 of the Constitution.
Para 16-20: Impact on the Case
In this particular case, the officer conducting the search did not inform the accused of their rights under Section 50. The Court held that this procedural lapse was sufficient to nullify the trial as against the principles of natural justice and statutory mandates.
Para 21-25: Strict Interpretation of Safeguards
It said that since the NDPS Act prescribes severe punishments, procedural safeguards must be stringently followed. The court has not approved that procedural lapses could be regarded as “minor irregularities” in accordance with Section 465 of the CrPC and Section 511 of BNSS.
Para 26-30: Reaffirming Precedents
The judgment relied on and reaffirmed earlier rulings, such as State of Punjab vs. Baldev Singh (1999), which underscored the mandatory nature of Section 50. It clarified that compliance with procedural safeguards is a prerequisite for a valid conviction under the NDPS Act.
3. Noor Aga vs State of Punjab (2008 Air 16 SCC 417)
Para 1-10: Procedural Safeguards
The Court emphasized the importance of the NDPS Act’s strict procedural safeguards, given the severe penalties it imposes. Compliance with these safeguards, such as mandatory provisions under Sections 42 and 50, is not optional but essential to ensure a fair trial.
Para 11-20: Sections 42 and 50 of the NDPS Act
Section 42 provides for prior sanction for searches and requires the officers to put the details in writing and to communicate with their seniors before making a search. Section 50 again emphasizes the mandatory requirement of informing the accused of his right to be searched in the presence of a Magistrate or a Gazetted Officer, as enunciated in the case of State of Punjab vs. Baldev Singh.
Para 21-30: Failure to Observe Procedural Safeguards
The Court held that the prosecution had failed to show that Sections 42 and 50 had been complied with in this case. Failure to comply with these mandatory provisions renders the evidence inadmissible and vitiates the trial.
Para 31-40: Presumptions under Sections 35 and 54
The Court discussed the statutory presumptions of culpable mental state (Section 35) and possession (Section 54) under the NDPS Act. It makes a distinction between shifting of the burden of proof from the prosecution to the accused; however, the prima facie case must be established before by following the procedural safeguards.
Para 41-50: Standard of Proof and Fair Trial
The court held that the presumption of innocence is the backbone of criminal jurisprudence. It said that though the NDPS Act lays down strict presumptions, these do not let the prosecution scot-free of its duty to prove that procedural safeguards have been followed beyond a reasonable doubt.
Paragraphs 51-60
The Court examined the evidence proffered by the prosecution, among which were the chain of custody and procedural lapses during the investigation. The Court concluded that there are major loopholes in the evidence and determined that the investigation was made casually and non-compliant with the procedures.
4. State of Punjab vs. Baldev Singh (1999) 3 SCC 299
Para 1-5: Introduction to the Case
The Court introduced the matter, emphasizing the severe penalties under the NDPS Act. It underscored the importance of procedural safeguards to prevent investigating officers from misusing their power.
Para 6-10: Purpose of Section 50
Section 50 guarantees that a person being searched has the right to be informed about the search in the presence of a Magistrate or a Gazetted Officer. The Court explained that this provision aims to ensure fairness and protect the accused from arbitrary searches.
Para 11-20: Nature of Section 50
The Court clarified that Section 50 is mandatory, and any failure to comply renders the search illegal. The Court observed that the legislature intentionally included this safeguard to promote transparency and prevent harassment.
Para 21-30: Analysis of Compliance Requirements
The Court held that the officer conducting the search must clearly inform the accused of their right to choose whether to be searched before a Magistrate or Gazetted Officer. Simply mentioning the availability of this option is insufficient; the accused must be made aware of their right in clear and unequivocal terms.
Para 31-40: Consequences of Non-Compliance
Non-compliance with Section 50 goes beyond mere procedural irregularities; it invalidates the entire search and subsequent recovery. Evidence obtained in violation of Section 50 is inadmissible in court.
Para 41-50: Balancing Stringency with Fair Trial
The Court recognized the stringent nature of the NDPS Act but emphasized the crucial importance of procedural safeguards to safeguard the rights of the accused. It reiterated that the onus lies with the prosecution to demonstrate compliance with Section 50.
Para 51-60: Application to the Case
In the case of Baldev Singh, the search conducted by the officers deviated from the mandatory provisions outlined in Section 50. The Court found that the accused was not adequately informed of their right to be searched before a Magistrate or Gazetted Officer.
Para 61-70: Final Conclusions
In its final conclusions, the Court quashed the conviction due to the prosecution’s inability to prove compliance with Section 50. It underscored the significance of the safeguards provided under Section 50, emphasizing the necessity of strictly adhering to them to ensure a fair trial.
5. Kanhaiyalal v. Union of India (2008) 4 SCC 668
Para 1-5: Introduction and Background
The Court introduced the case, highlighting the NDPS Act’s stringent penalties for drug-related offenses. It emphasized the importance of procedural safeguards to prevent abuse of power by investigating officers and ensure a fair trial.
Para 6-15: Applicability of Section 50
The Court reiterated that Section 50 of the NDPS Act applies specifically to searches of individuals, not premises or vehicles. Under Section 50, the accused must be informed of their right to be searched in the presence of a Magistrate or a Gazetted Officer.
Para 16-25: Nature of Compliance
The Court emphasized that compliance with Section 50 is mandatory, not merely advisory. It clarified that informing the accused about their rights under Section 50 must be explicit and unequivocal. Verbal mention or indirect communication does not fulfill this requirement.
Para 26-35: Consequences of Non-Compliance
The Court held that non-compliance with Section 50 invalidates the search, rendering any evidence obtained during the search inadmissible. The Court emphasized that procedural safeguards under Section 50 are not mere technicalities but substantive requirements that are essential to the integrity of the trial.
Para 36-45: Balancing Stringency with Fair Trial
While the NDPS Act imposes stringent penalties to deter drug-related offenses, the Court stressed the need to strictly adhere to procedural safeguards. The Court emphasized that the balance between stringency and fairness is crucial in ensuring that the criminal justice system operates effectively and upholds the principles of justice and fairness. The prosecution is responsible for demonstrating that these safeguards were adhered to, ensuring that the accused’s constitutional rights are safeguarded.
Para 46-55: Analysis of the Present Case
In Kanhaiyalal’s case, the court found that the investigating officer violated Section 50. Specifically, the accused was not informed of their right to be searched before a Magistrate or a Gazetted Officer, which is a mandatory requirement. The court also noted significant lapses in the procedure, rendering the recovery and subsequent trial invalid.
Para 56-60: Evidentiary Value of Recovery
Furthermore, the court reiterated that evidence obtained in violation of mandatory procedural requirements lacks evidentiary value and cannot form the basis of a conviction. Consequently, the trial was deemed vitiated due to the procedural lapses and the prosecution’s failure to demonstrate compliance with Section 50.
6. Tofan Singh vs. State Of Tamil Nadu (2021) 4 SCC 1
Background (Paragraphs 1–12):
Appellant Tofan Singh was tried and convicted of being found in possession of narcotic substances under the NDPS Act. The reliance of the prosecution on the statement made by the accused under Section 67 of the NDPS Act was substantial; the judgment is based primarily on this confession.
Legal Questions (Paragraphs 13–20):
The Court of Appeal posed two primary questions.
1. Is an officer under the NDPS Act a “police officer”?
2. Does Section 67 of the NDPS Act override the safeguards available under Sections 25 and 26 of the Evidence Act?
Court’s Analysis (Paragraphs 21–62):
What Constitutes a “Police Officer”? (Paragraphs 21–36):
The court examined the functions and powers of NDPS officers and concluded that they perform investigative functions similar to those of police officers. Therefore, they are considered “police officers” under Section 25 of the Evidence Act.
Admissibility of Confession (Paragraphs 37–55):
Statements made under Section 67 of the NDPS Act are inadmissible if obtained during an investigation because they violate the fundamental protection against self-incrimination under Article 20(3) of the Constitution.
NDPS Act vs. Evidence Act (Paragraphs 56–62):
The NDPS Act does not supersede the procedural safeguards of the Evidence Act. The protection under Section 25 ensures that confessions made to officers are inadmissible in court.
Judgment (Paragraphs 63–70):
The Supreme Court ruled that confessional statements recorded by officers under Section 67 of the NDPS Act cannot be used as evidence for conviction. The appellant was acquitted in this case for the reason that there was no admissible evidence.
Conclusion:
Section 67 of the NDPS Act plays a vital role in drug-related investigations, which gives the authorities the right to record statements during inquiries. However, the application of the section has raised the question of potential misuse and the admissibility of confessions. Courts, including the Supreme Court, have emphasized the importance of procedural fairness and protection of individual rights to avoid coercion. Although this provision is crucial for dealing with drug trafficking, its proper application requires strict adherence to legal safeguards and strong judicial supervision. Balancing enforcement with constitutional rights is necessary to maintain justice and public confidence in the law’s purpose and integrity.
Before the Tofan Singh judgment, NDPS cases were governed by a legal framework that relied more on the confessional statements of the accused, almost eliminating the need for any further evidence to prove the charges. This created a legal environment where the accused were at a very significant disadvantage because their confessions, even if coerced or improperly obtained, could serve as the sole basis for conviction.
In the Tofan Singh case, the Supreme Court changed the course of NDPS case adjudication in India. It gave credence to the very basic principles of fair trial and due process by laying down that confessional statements to officers under Section 53 of the NDPS Act are inadmissible evidence. This judgment transformed the situation by making the accused have a right to challenge the allegations placed before him, and the onus shifted to the prosecution to prove the guilt on independent and corroborative evidence. The judgment not only furthered the rights of the accused but also strengthened the integrity of the process in NDPS matters at large.
The Narcotic Drugs and Psychotropic Substances (NDPS) Act is among India’s most powerful legal frameworks for addressing drug-related offenses, with support from top NDPS bail lawyer in Delhi.
Written and Researched by Harsh Pandey, Deepak Giri and Ansu Nishad
About Authors:
Harsh Pandey: The author is a law student from a prominent university and currently a law intern in the Chamber of Advocate Rohit Dandriyal. He is a diligent researcher who specializes in writing articles on cases involving the Narcotic Drugs and Psychotropic Substances Act (NDPS).
Ansu Nishad: The auther has been working in the esteemed Chamber of Advocate Rohit Dandriyal for over a year, gaining extensive experience and demonstrating a strong command of legal principles and practices.
Deepak Giri: The author is a law student enrolled at a reputable university and is currently gaining practical experience as a law intern in the Chamber of Advocate Rohit Dandriyal, a distinguished practitioner known for his expertise in NDPS Cases. With a keen interest in criminal law, the author has developed strong research skills and regularly contributes scholarly articles focusing on the legal intricacies and evolving jurisprudence surrounding NDPS Cases.
