Supreme Court- Section 67 NDPS Statements Cannot Be Used as Confessions; Officers Under Section 53 Are “Police Officers” for Evidence Act

Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

Date: 11.09.2026

Supreme Court- Section 67 NDPS Statements Cannot Be Used as Confessions; Officers Under Section 53 Are “Police Officers” for Evidence Act

In a landmark judgment having major implications for prosecutions under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Supreme Court held that officers invested with powers under Section 53 of the NDPS Act are “police officers” for the purposes of Section 25 of the Indian Evidence Act, 1872. Consequently, confessional statements made before such officers are inadmissible for securing the conviction of an accused.

The ruling came in Tofan Singh v. State of Tamil Nadu, arising from Criminal Appeal No. 152 of 2013 along with several connected appeals and Special Leave Petitions. The majority judgment was delivered by Justice R.F. Nariman, with Justice Navin Sinha concurring, while Justice Indira Banerjee dissented on the principal questions.

The Core Issue Before the Supreme Court

• The controversy arose from the use of statements recorded by officers under Section 67 of the NDPS Act. Tofan Singh challenged his conviction primarily on the ground that it was based upon a purported confessional statement recorded under Section 67.
• The appellant argued that the officer recording such a statement should be regarded as a “police officer” and, therefore, the confession was hit by Section 25 of the Evidence Act. It was also contended that Section 67 merely authorises officers to call for information and does not empower them to record confessions capable of being treated as substantive evidence.
• The larger Bench was essentially required to determine two questions: whether officers empowered under Section 53 of the NDPS Act are police officers for Section 25 of the Evidence Act, and whether a statement recorded under Section 67 can be treated as a confessional statement against an accused.

Section 53 NDPS Officers Are “Police Officers”

• The majority answered the first question in favour of the accused.
• The Supreme Court held that officers invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act. Therefore, any confessional statement made to such an officer is barred by Section 25 and cannot be taken into account to convict an accused under the NDPS Act.
• The ruling is particularly significant because Section 53 enables officers belonging to departments such as Customs, Revenue Intelligence, Narcotics and other specified government departments to be invested with powers of an officer-in-charge of a police station for investigation of NDPS offences.
• The majority rejected an interpretation under which constitutional and evidentiary safeguards available to an accused could depend merely upon the departmental designation of the investigating officer. The Court observed that permitting a confession before such an officer to become the basis of conviction, without safeguards and without excluding Section 25 of the Evidence Act, would infringe the constitutional protections under Articles 14, 20(3) and 21 of the Constitution.

Section 67 Statement Cannot Be Used as a Confession

The second and equally important finding concerned Section 67 of the NDPS Act.

The Supreme Court categorically held:

“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 decision therefore substantially altered the evidentiary position in NDPS prosecutions where investigative agencies had relied upon Section 67 statements as confessions against accused persons.
• The judgment reinforces the constitutional protection against self-incrimination under Article 20(3) and the evidentiary prohibition contained in Section 25 of the Evidence Act.

Raj Kumar Karwal and Kanhaiyalal Overruled

• The Supreme Court expressly reconsidered its earlier judgments in Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409 and Kanhaiyalal v. Union of India, (2008) 4 SCC 668.
• Those decisions had supported the proposition that officers exercising powers under Section 53 were not police officers within Section 25 of the Evidence Act and had permitted reliance upon Section 67 statements in circumstances considered therein.
• The majority in Tofan Singh held that both judgments “do not state the law correctly” and expressly overruled them. It further clarified that other judgments expressly relying upon those decisions or the principles laid down in them would also stand overruled to that extent.
• By contrast, the Supreme Court approved Noor Aga v. State of Punjab, (2008) 16 SCC 417 and Nirmal Singh Pehlwan v. Inspector, Customs, (2011) 12 SCC 298, declaring them to be correct in law.

Important Distinction From Statements Under the Customs Act

• The judgment also discusses the distinction between Section 67 of the NDPS Act and the powers available to Customs officers under Sections 107 and 108 of the Customs Act, 1962.
• The reference order itself noted that Section 108 of the Customs Act expressly empowers Customs officers to summon persons to give evidence and produce documents, whereas Section 67 of the NDPS Act uses materially different language.
• Accordingly, the Tofan Singh ruling should be understood in its specific statutory context under the NDPS Act and should not automatically be read as declaring every statement recorded by Customs officers under Section 108 of the Customs Act inadmissible.

Justice Indira Banerjee’s Dissent

• Justice Indira Banerjee disagreed with the majority. In her dissent, she concluded that officers invested with powers under Section 53 of the NDPS Act should not be regarded as police officers for Sections 25 and 26 of the Evidence Act.
• She was also unable to agree with the proposition that a statement recorded under Section 67 could not be used against an accused. In her view, statements made during an inquiry or investigation before authorised NDPS officers could be tendered and proved in accordance with law.
• The binding position, however, is the 2:1 majority ruling.

Did the Supreme Court Acquit Tofan Singh in This Judgment?

• An important procedural distinction must be noted. The larger Bench was deciding the referred questions of law. It did not finally dispose of Tofan Singh’s individual appeal on merits through this judgment.
• After answering the reference, the Supreme Court directed that the appeals and Special Leave Petitions be sent back to the appropriate Division Benches for disposal on merits in light of the majority judgment.
• Therefore, it is more accurate to say that the Supreme Court ruled in favour of the accused on the referred legal issues, rather than stating that this larger-Bench judgment itself acquitted Tofan Singh.

Key Legal Takeaway

Tofan Singh fundamentally changed the evidentiary landscape of NDPS prosecutions. The binding principles are clear: an officer invested with powers under Section 53 of the NDPS Act is a police officer for Section 25 of the Evidence Act, a confession made to such an officer cannot be used to convict an accused, and a statement recorded under Section 67 cannot be treated as a confessional statement at an NDPS trial.

The judgment consequently remains a major authority on Section 67 statements, self-incrimination, admissibility of confessions and the investigative powers of NCB, DRI, Customs and other officers empowered under the NDPS Act.

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Source: Supreme Court

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Ravi Shekhar Jha – Advocate, Bar Council of Delhi